Monty v Bayside City Council

[2010] VCC 221

IN THE COUNTY COURT OF VICTORIA	Revised
AT MELBOURNE CIVIL DIVISION

Case No. CI-08-03085

JOHN MONTY	Plaintiff
v
BAYSIDE CITY COUNCIL & ORS	Defendants

---

JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19, 20 November and 15 December 2009
DATE OF JUDGMENT:	17 February 2010
CASE MAY BE CITED AS:	Monty v Bayside City Council & Ors
MEDIUM NEUTRAL CITATION:	[2010] VCC 0221

REASONS FOR JUDGMENT

---

Catchwords: Negligence – Duty of care owed by Council to cyclists – Breach of duty –

Damages.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.H. Mighell SC with	Wisewould Mahony
Ms J.M. Forbes
For the First Defendant	Mr D.M. O’Callaghan	Minter Ellison
For the Second Defendant	Mr A.N. Murdoch	DLA Phillips Fox
HIS HONOUR:

1          In this proceeding the plaintiff claims damages for injuries suffered in a bicycle accident on 28 August 2005. The plaintiff was riding his bicycle in a southerly direction along the bike path next to Beach Road in Black Rock. His front wheel came into contact with the bluestone edge of the bike path causing him to fall from his bicycle onto a steel post of a road safety barrier. The plaintiff alleges that the accident was caused by the negligence of the first defendant, Bayside City Council (BCC), and/or the negligence of the second defendant, VicRoads. Each defendant denies negligence. Each defendant has alleged that in the event that it was negligent there was contributory negligence on the part of the plaintiff.

2          The plaintiff has sustained a “significant injury” in accordance with Part VBA of the Wrongs Act 1958.

3          The bike path was constructed in March 2000. In April or May 2000, super elevation works were performed to alter the camber of this section of Beach Road known as “Quiet Corner”. This involved removal and re-installation of a road safety barrier. After the super elevation works were completed bluestone was installed on one edge of the bike path just at this section of the bike path.

4          The plaintiff had been riding along the bike path in a southerly direction immediately prior to the accident. At the site of the accident the bike path is 2.5 metres wide. It is a shared path. As one approaches the point at which the accident occurred, travelling in a southerly direction, the path curves to the left. This area is known as “Quiet Corner”. At the place at which the accident occurred as one travels in a southerly direction there is a bluestone kerb on the eastern edge of the bike path. To the left of that bluestone kerb is the rear of a road safety barrier. The road safety barrier is supported by steel poles. These steel poles are unguarded. At the time of the accident there was vegetation on the western side of the bike path and to the west of that vegetation there is a cliff leading down to Port Phillip Bay.

5          The plaintiff, John Monty, is 57 years of age having been born on 1 April 1952. He is employed as a management accountant. On Sunday 28 August 2005 he was riding his bicycle on the Beach Road bike path. He said that it was a sunny windy day. The plaintiff was riding a hybrid bicycle which had flat handle bars and ten speed gears. He was riding in one of the middle gears. The plaintiff was a recreational cyclist, he rode his bicycle approximately once a month. He said that he had ridden on this bike path on two or three other occasions.

6          On this day the plaintiff had ridden from his home in Parkdale to Sandringham and he was returning to Parkdale when the accident occurred. The plaintiff said that he was not in a hurry, he was riding at a leisurely speed immediately prior to his accident. He was wearing a helmet. The plaintiff’s accident occurred as he was at or about “Quiet Corner”. This is just south of the intersection of Beach Road and Fourth Street, Black Rock. The plaintiff said that as he was riding his bicycle in a southerly direction there was a strong gust of wind from his right-hand or westerly side. The next thing the plaintiff recalled was that the inside of his front wheel was scraping along the edge of the bluestone on the left-hand or easterly side of the path. The effect of this impact was to make the front wheel unstable. The plaintiff tried to keep his bike upright and the wheel straight but he was not able to regain control. His next memory was of heading towards the steel post. This was one of the steel posts forming part of the road safety barrier. It was to the left of the bluestone kerb. The plaintiff recalled heading head first toward the steel post. He was not able to take any evasive action and his face struck the upright steel post. The impact was severe. The plaintiff said he then ricocheted off the post and landed back on the bike path. The plaintiff described the accident as happening quickly.

7          Following the accident the plaintiff was bleeding profusely and in pain. He was taken to the Alfred Hospital where he remained for ten days. The plaintiff’s injuries included a compound depressed temporal skull fracture as well as a fracture to the temporal bone including the temporomandibular joint and a direct injury to the facial nerves. There was a laceration to the left facial nerve. The plaintiff underwent surgery, he underwent a debridement procedure in which the dura was repaired. The laceration of the left facial nerve was treated with a sural nerve graft. The plaintiff sustained a fracture of the left clavicle which was managed conservatively. He sustained a minor cervical spine injury with a fracture to the right lateral mass of C7 and the left transverse process of C7. This was also managed conservatively, the plaintiff was fitted with a neck brace. He sustained a fracture of the left zygomatic arch, fractures of the anterior and inferior walls of the external auditory canal, rapid new onset atrial fibrillation, a frozen shoulder and scarring on a leg following surgery.

8          Upon the plaintiff’s discharge from hospital he was unable to care for himself so he lived initially with his mother and then with his stepdaughter.

9          The plaintiff has a number of residual effects of his injuries. He has significant facial palsy. There is a cosmetic deformity, he is unable to smile properly and he has difficulty drinking and eating. He feels tired at the end of the day because of the drooping sensation he experiences in his face. He has problems sleeping upon the affected side of his face. There is a cracking in his jaw. The injury to the plaintiff’s left eye means that the left eyelid cannot close. The plaintiff applies eye drops every one to two hours, he applies cream before he goes to sleep and he tapes the eyelid at night. His left eye is sensitive to dust and glare and it becomes sore. The plaintiff has severe sensory neural hearing loss on the left side. There is scarring on the left lower leg from the donor site and impairment of the left foot. This restricts the plaintiff when running and swimming. The plaintiff has a frozen left shoulder with ongoing impairment of the shoulder. The plaintiff has mild restriction of movement and neck pain.

10        The plaintiff was off work for eight weeks following the accident and initially returned to work on a part-time basis. He was able to resume full-time employment in about mid January 2006.

11        The plaintiff was not challenged about his injuries and their effects upon him. A number of medical reports describing the plaintiff’s injuries and medical treatment were tendered on behalf of the plaintiff by consent. (These form part of Exhibit 10.)

12        The plaintiff was cross-examined about the circumstances of the accident. In cross-examination he maintained that it had been a windy day. He was adamant that there had been a gust of wind which had been a factor in causing the accident. He stated that he had told BCC of this in his first report of the accident after he was discharged from hospital. A letter dated 4 January 2008 from Carlo Estorque, a senior claims officer at Echelon Claims Services, was tendered on behalf of the plaintiff (Exhibit 8). In that letter the plaintiff’s solicitors were advised that:

“ … from the information in our possession, your client has advised a council officer after the incident that a gust of wind moved his bike sideways, which resulted in the front wheel of your client’s bicycle to rub against a bluestone edge causing the fall. Therefore we fail to see how council can be held responsible for this incident.”

13        The plaintiff was cross-examined about a letter he had written in which he reported the accident (Exhibit 2). In that letter he described the weather conditions as “a warm and slightly windy afternoon”. The plaintiff maintained in his evidence that there had been a gust of wind and the course of his bicycle had been affected by this gust of wind.

14        In the plaintiff’s answers to interrogatories tendered in evidence (Exhibit 12) he gave this description of the incident in answer to interrogatory 19, “I was cycling on the bike path when my bike wheel struck the bluestone causing the bike to become unstable and I fell and the left-hand side of my face struck the metal of the safety barrier as it faced the bike path”. The plaintiff described the wind conditions as being “windy” (answer to interrogatory 33(b)) and he stated that “the wind pushed my course closer to the left-hand side of the track” (answer to interrogatory 35).

15        The plaintiff agreed in cross-examination that he had not seen the bluestone kerb until his wheel was scraping it immediately prior to his fall. He had no explanation for his failure to see the bluestone as he approached “Quiet Corner”. The plaintiff said that as he was approaching “Quiet Corner” he was conscious of the bend ahead, the line in the middle of the bike path, that it was a shared path and there was a road safety barrier.

16        Andrew O’Brien, a traffic and road safety engineer, gave evidence on behalf of the plaintiff. Mr O’Brien had prepared a detailed report which was tendered in evidence (Exhibit 3). Mr O’Brien has been a traffic and road safety engineer since 1971. Mr O’Brien, in both his report and oral evidence, referred in some detail to the “Austroads Standards Australia Part 14 Guide to Traffic Engineering Practice, Bicycles” and the “VicRoads Cycle Notes Shared Path/Pedestrian Path Design”.

17        In his report Mr O’Brien specifically dealt with whether this section of bike path complied with various requirements or recommendations in these publications. He stated at p.27:

• “the path width recommended within Austroads Part 14 or in Cycle Notes No. 3 was not provided;

• the effective path width (the reduced width due to the presence of the bluestone wall) recommended within Austroad Part 14 and in Cycle Notes No.3 was not provided;

• the minimum clearance to an obstacle (the bluestone wall) specified within Austroad Part 14 or in Cycle Notes No.3 was not provided;

• the minimum clearance to an obstacle (the rear of the guard rail barrier) specified in Austroad Part 14 or in Cycle Notes No.3 was not provided for much of the length of the barrier;

• the minimum clearance to an obstacle (the rear of the guard rail barrier) specified within Cycle Notes No.3 was not provided to the guard rail barrier near the crash site;

• the clearance from a hazard, and the method of dealing with hazards close to a road/path set out in VicRoads Road Design Guidelines (listed in s.5.3 of this report) was ignored.”

18        Mr O’Brien expressed his overall conclusions in these terms (p.29):

“Based on the preceding considerations I concluded the design of the shared path and its environs in the vicinity of the crash site was deficient in either or both of operational safety terms in that:

• the width of the path was insufficient, and should have been at least three metres wide;

• the bluestone wall was both an ‘obstacle’ and a significant hazard – and if used should have been at least one metre from the edge of the path;

• the guard rail barrier while necessary for on-road safety for Beach Road users created, and continues to create, a severe safety hazard for shared path users – particularly south bound cyclists;

• the combination of the bluestone wall and the guard rail and its posts, substantially increases the level of hazard of the guard rail, as any cyclist striking the bluestone wall is likely to fall onto the guard rail – without the wall there would be some chance of a cyclist who left the path recovering control before striking the guard rail or its posts;

• the lack of warning signage advising riders of the hazard of the bluestone wall and/or the guard rail.”

19        In his evidence Mr O’Brien elaborated upon these matters. He expressed the opinion that the path was too narrow, it was 2.5 metres wide, it should have been three metres wide. He said that as the path was only 2.5 metres wide there should have been appropriate horizontal or lateral clearance from the edge of the path to compensate for its narrowness. Mr O’Brien explained that appropriate lateral clearance was necessary in respect of both roads and paths to ensure that there was a “forgiving roadside”. This enables motor vehicle drivers or bicycle riders to make small errors which are not costly in terms of life and limb. The presence of the bluestone edge to the bike path meant there was zero clearance. It was Mr O’Brien’s opinion that in nearly all situations a zero clearance was unacceptable. Mr O’Brien considered the bluestone edge to be an obstacle and said that if there was an obstacle with zero clearance it needed to be quite high, up around rider height, rather than at a low height. The problem with a low obstacle such as this bluestone edge was that if a cyclist struck it he would fall across the top of it, whereas if a cyclist hit a higher object he would either partially hang over the higher object or fall back onto the path. This was very relevant because immediately to the left of the bluestone edge was the extra hazard of the exposed safety guard rail post, therefore a cyclist falling over the low lying bluestone edge would confront that exposed steel guard rail post which had a sharp right angle top. These posts were close to the bluestone being only approximately 300 to 800 metres from the edge of the path. Mr O’Brien was of the opinion that the absence of horizontal or lateral clearance from the edge of the bike path was in contravention of Austroads Part 14 and VicRoads Cycle Notes.

20        Mr O’Brien was of the opinion that the bluestone edging the bike path was a major hazard. He said that if he was conducting a safety audit of this bike path he would recommend that something be done about the hazard created by the bluestone edging the path, particularly as there was the additional hazard of the exposed steel guard post close to the bluestone. Mr O’Brien was of the opinion that this circumstance ought be attended to immediately.

21        Mr O’Brien described the path as it approached and entered “Quiet Corner” as having a sharp radius. The effect of this was to cause a rider to head in a more easterly direction bringing the rider closer to the bluestone kerb. This meant that this section of the path was more dangerous than a straight section of path as a rider would approach the bluestone kerb at an angle of approximately 10 to 15 degrees rather than parallel with the bluestone.

22        Mr O’Brien suggested a number of possible solutions to the dangers created by this section of the bike path. He said that the most practical and safest solution would be to attach a fence to the vertical steel posts of the guard rail. Mr O’Brien had taken photographs of a fence on the back of a guard rail at Como Park to illustrate this solution. Mr O’Brien was also of the opinion that the path could have been set back another metre or so to the west and there could have been protection to the back of the guard rail posts.

23        In his report Mr O’Brien stated (p.30):

“Finally is it my opinion that a suitable and safe treatment of the interface between the shared path and the reconstructed road and guard rail could really have been designed at minimal, if any, additional costs.

Further, it is my recommendation to prevent further such occurrences:

• the bluestone wall be removed;

• the area between the edge of the path and the guard rail barrier be serviced and made rideable;

• a suitable fence be constructed adjacent to the back of the guard rail and prevent riders colliding with the guard rail in the future.”

24        In cross-examination Mr O’Brien described the bluestone as an unexpected hazard. He said it was an abnormal thing to find at that location, there was no other bluestone edging anywhere near this site. Mr O’Brien stated that the path design did not appear to have taken into account the steel guard rail. He was of the opinion that the path should have been moved to the west or something done to protect riders from striking the back of the guard rail. Mr O’Brien stated that a solution to this hazard could have been the installation of a light weight fence on the back of the guard rail, this would have been an effective barrier preventing riders from falling onto the guard rail and preventing riders hitting the top of the guard rail fence posts. Mr O’Brien was highly critical of the placement of the bluestone on the edge of the bike path. He explained that the effect of a cyclist striking the bluestone would be to cause the cyclist to fall into a very dangerous area. He said that the whole approach to safe design was not to install a hazard such as this bluestone kerb in the first place. Mr O’Brien was of the opinion that a hazard such as this bluestone kerb should not have been installed.

25        A folder of documents was tendered on behalf of the plaintiff (Exhibit 10). This folder contained photographs of the accident scene, photographs of the plaintiff, documentation in respect of the construction of the bike path, documentation in respect of the super elevation works conducted on Beach Road at “Quiet Corner” and medical reports.

26        Two witnesses were called on behalf of BCC. Keith Mitson, a traffic engineer, provided two reports (Exhibit 6). Mr Mitson expressed the opinion that the shared path width of 2.5 metres was adequate. Mr Mitson was of the opinion that there were a number of hazards close to the edge of the cycle path, such as a street light pole, fencing and bushes. Mr Mitson expressed the opinion that the bluestone kerb might be expected on a typical bicycle path, this kerbing would be a common occurrence, therefore it should be expected by a cyclist. He said that it was necessary to install the road safety barrier to protect users of the shared path from errant vehicles travelling in a northerly direction along Beach Road. Mr Mitson was of the opinion that the plaintiff’s accident was not due to poor design of the shared path, rather it was due to misjudgement by the plaintiff of the conditions of the path in a situation in which the plaintiff had no room for error.

27        Mr Mitson did not consider it appropriate to attach a fence structure to the rear of the safety barrier as this may compromise the intended design of the barrier. Mr Mitson did not consider the road safety barrier posed a significant increased risk to cyclists, he stated (p.6 of his second report):

“My point is that from a risk management perspective the presence of the guard rail does not increase the overall journey risk to cyclists due to the frequent hazards that exist (and do on almost any path). I think this is backed up by the fact that this is the only recorded incidence of a crash of this nature at the site since it was constructed. If the installation of the bluestone wall was such a high risk that has been in place for nearly a decade, then it would be likely that more crashes of this type would have occurred.”

28        In his evidence Mr Mitson explained that he considered that the path width of 2.5 metres was appropriate having regard to the intended nature and level of use of the path. He considered 2.5 metres to be very acceptable for this type of path, although he accepted that the Austroads Guide recommended three metres. Mr Mitson was of the opinion that to install a double-sided road safety barrier would be “overkill”. He stated that this would significantly alter the deflection of the guard rail under impact. Mr Mitson was wary of removing the bluestone as he felt it may increase the amount of debris on the bike path and create maintenance and road safety implications for Beach Road. Mr Mitson was of the opinion that the general curvature of the bike path was adequate. When asked whether it may be appropriate to shift the path to the west a metre or so he stated that would be “in an ideal world a good thing to do”, however he felt there may be environmental and land ownership issues involved in moving the path.

29        In cross-examination Mr Mitson, in my opinion, made a number of very significant concessions. He acknowledged that the bluestone was a hazard. He stated that the path width of 2.5 metres was at the lower end of the permitted width for a shared path, and he agreed that there were hazards immediately adjacent to the path itself. He acknowledged that the benefit of lateral clearance was that it provided room for error on the part of bike riders. Lateral clearance was an important matter to take into account in the design, construction and maintenance of bike paths. He accepted that it was desirable to try to avoid zero lateral clearance. He acknowledged that the guard rail was a safety hazard for cyclists. He accepted that the bluestone, zero clearance and guard rail constituted hazards and he agreed that if he was conducting a road safety audit this would certainly be one of the very significant hazards he would have picked up (Transcript 169).

30        Mr Mitson agreed with Mr O’Brien that the consequence of striking the bluestone would be that a cyclist would probably go over the bluestone and fall to the left, that is into the exposed rear of the safety rail and posts. Mr Mitson was cross-examined extensively about the bluestone kerb and he stated that he would not have advocated the use of a bluestone kerb.

31        Mr Guy Wilson-Brown gave evidence on behalf of BCC. He is the Group Manager, Infrastructure Service, but has only been employed by BCC since 12 November 2008. Mr Wilson-Brown therefore had no direct knowledge of the construction of the bike path, the super elevation works conducted upon Beach Road at “Quiet Corner” or the installation of the bluestone.

32        Mr Wilson-Brown explained that between November 1996 and 2001 all the engineering services of the BCC were outsourced and provided by Fisher Stewart. The bike path was constructed in March 2000 and in April or May 2000 super elevation works were performed to alter the camber of “Quiet Corner”, Beach Road. The design of the bike path and design of the road works was undertaken by Fisher Stewart. Construction of the road works was undertaken by Pioneer and construction of the bike path by Simmonds Constructions. BCC was at all material times the authority responsible for the bike path.

33        Mr Wilson-Brown stated that the bluestone retaining wall was constructed shortly after the super elevation works had been completed upon Beach Road. The reason for the bluestone retaining wall was to prevent soil and water coming onto the bike path. Mr Wilson-Brown said that bluestone had been used on the bike path in a number of locations particularly in Brighton. He stated that no complaints had been received in relation to the bluestone and no accidents had been reported of cyclists hitting bluestone kerbs. BCC had not received reports of any incidents of accidents involving the bluestone kerb other than this accident.

34        Mr Wilson-Brown stated that the path was inspected every six months. He said there was no record of any scrape or markings on the bluestone. Mr Wilson-Brown was of the opinion that the bike path was in line with common standards in the inner metropolitan area.

35        Various answers of the first and second defendant were tendered in evidence. Of significance was the first defendant’s answer to the plaintiff’s interrogatory 7: “Did the first defendant approve the construction of the bluestone at the edge of the bike path?” The first defendant’s answer: “Yes”.

36        During the hearing I undertook a view of the general vicinity of this accident scene to help me better understand the evidence. I found the view to have been particularly useful.

37        Each counsel provided very helpful oral and written submissions.

38        The plaintiff was extensively cross-examined as to whether a gust of wind had affected his course of travel whilst riding his bicycle. It was submitted by Mr O’Callaghan on behalf of BCC that wind was not a factor in relation to the occurrence of the accident. In support of this submission Mr O’Callaghan relied upon the absence of reference to a gust of wind in many of the histories obtained by doctors prior to May 2009, the absence of a contemporaneous complaint by the plaintiff that wind was a relevant factor and the absence of reference to a gust of wind affecting the plaintiff’s course of travel in his written report of the incident (Exhibit 2).

39        My overall impression of the plaintiff was that he was a very straightforward witness of truth. I formed a particularly favourable impression of the plaintiff. In my opinion the plaintiff did not exaggerate or embellish either his account of the accident or the effect his injuries have had upon him. To the contrary the plaintiff if anything appeared to understate the significance of his injuries. I am satisfied that the plaintiff’s description of the accident in his evidence was accurate, truthful and reliable. I do not consider that it was of significance that varying histories were recorded by doctors given the nature of the plaintiff’s accident and the very serious injuries for which he was undergoing extensive medical treatment. Nor do I consider it significant that the written report was incomplete in that it did not refer to the gust of wind the plaintiff described in his evidence. Whilst giving evidence the plaintiff was, in my opinion, very careful in only stating what he was precisely able to recall. Given the nature of his head injuries it was not surprising that there were some gaps in his memory. The letter from Echelon Claims Services (Exhibit 8) was significant as it confirmed that the plaintiff had advised BCC shortly after the accident that a gust of wind moved his bike sideways resulting in the front wheel of his bicycle rubbing the bluestone edge causing the fall.

40        I therefore find that on 28 August 2005 the plaintiff was riding his bicycle in a southerly direction along the bike path at Black Rock at or about “Quiet Corner”. He was travelling at a leisurely speed. A gust of wind caused the plaintiff’s bike to veer to the left and the front wheel of the bike came into contact with the bluestone edge of the bike path. The plaintiff lost control and the contact between the front wheel of his bike and the bluestone edge of the bike path caused the plaintiff to be thrown from his bike into the steel post or upright which was situated close to the edge of the bike path.

41        It was not in issue that BCC owed a duty of care to the plaintiff as a user of the bike path to take such care in all the circumstances as was reasonable to see that the plaintiff was not injured.

42        It was agreed that in determining whether there had been a breach of that duty the following well known passage from Wyong Shire Council v Shirt (1980) 146 CLR 40 was relevant:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.” Mason CJ, pages 47-48.

43        It was submitted on behalf of BCC that the case against it was essentially based on faulty design and/or construction of the bike path and whilst BCC as occupier of the bike path had a duty to take reasonable care in relation to such design and construction it had discharged that duty by delegating design and construction to competent independent contractors. Any negligence occurring in the design or construction of the path was therefore the responsibility of those contractors and BCC was not liable for any wrong committed by them in the course of the work for which they were engaged.

44        It was submitted that to the extent that the plaintiff’s case was based upon any liability owed by BCC as occupier of the path between the date of its construction and the date of the accident BCC did not unreasonably expose the plaintiff to a risk of harm. It was submitted that the plaintiff’s accident was a “freak” one and the chance of such an accident occurring was miniscule. Thus the risk of this accident ought be described as “far-fetched and fanciful” and therefore not reasonably foreseeable.

45        It was further submitted that the failure of the plaintiff to observe the bluestone kerb was inexplicable on any basis other than his failure to keep a proper lookout. Reliance was placed upon Brodie & Anor v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. Therefore having regard to the circumstances existing at the accident scene, small risk of injury or harm, expense, difficulty and inconvenience of taking alleviating action BCC had not breached its duty of care having regard to the criteria relevant to the “Shirt calculus”.

46        It was submitted on behalf of the plaintiff that the bike path at the position where the incident occurred was unsafe. The bluestone edge which was installed was a hazard because it created a situation of no lateral clearance and its low height meant that a cyclist hitting it would be likely to be thrown over it onto the steel upright of the safety barrier. The presence of the steel upright on the safety barrier in close proximity to the bike path posed a hazard. The bend in the path just to the north of “Quiet Corner” meant that cyclists approached the bluestone at an angle and the line of sight to the bluestone edging was blocked by the end of the guard rail. The cumulative effect of these factors was to create a significant hazard to users of the bike path. It was submitted on behalf of the plaintiff that BCC breached its duty of care to the plaintiff by failing to appropriately assess and control the presence of these factors which constituted a significant hazard.

47        It was submitted on behalf of the plaintiff that there were a number of practical options available to BCC to deal with the hazard. These included erecting a fence between the edge of the bike path and the guard rail, erecting railing on both sides of the guard rail, warning cyclists of the hazard and at the time of construction widening the bike path one metre to the west.

48        It was submitted on behalf of the plaintiff that the risk factors were not obvious to the plaintiff and ought not be characterised as obvious hazards. In any event obviousness of risk was only one factor that ought be taken into account in determining the reasonableness of a response to an identified risk.

49        It was also submitted that BCC had not discharged the duty of care it owed to the plaintiff by engaging contractors. This was particularly relevant in respect of the installation of the bluestone kerb since BCC approved these works.

50        Insofar as there were differences of opinion between the two experts, Mr O’Brien and Mr Mitson, I prefer the evidence of Mr O’Brien for the following reasons. I found Mr O’Brien to have been a most impressive expert witness. He had undertaken a comprehensive review of the relevant literature and carefully analysed the circumstances in existence at this accident scene in light of the recommendations and requirements set out in Austroads Part 14 and Cycle Notes. Mr O’Brien has great experience in the area of traffic engineering. Mr Mitson made what in my opinion were very considerable concessions in cross-examination in relation to the nature of the hazard posed by the bluestone kerb, the position of the bluestone kerb in relation to both the path and the steel upright and the identification of these hazards in appropriate safety audits.

51        I accept the evidence of Mr O’Brien and I find that at the place at which this

accident occurred─

(1)	the bike path was narrow (2.5 metres);
(2)	there was zero lateral clearance on the eastern side of the bike path owing to the installation of the bluestone kerb;
(3)	the bluestone kerb was a short distance from the exposed steel upright at the rear of the road safety barrier;
(4)	a cyclist striking the bluestone kerb would be likely to fall over that kerb onto the exposed steel upright or over the safety barrier;
(5)	the bend in the bike path just north of “Quiet Corner” meant that a cyclist would probably approach the bluestone kerb at an angle;
(6)	the presence of the bluestone kerb was unexpected on this section of the bike path;

(7) a properly conducted safety audit of the bike path would have identified the very significant hazard existing as a result of the angle of the path, width of the path, presence of bluestone kerb and presence of exposed steel upright;

(8) the dangers associated with these hazards could have been alleviated by erecting a fence between the edge of the path and the guard rail and warning cyclists of these hazards.

52        I do not accept the submission on behalf of BCC that it discharged its duty of care owed to the plaintiff by engaging independent contractors for these reasons. BCC had outsourced its engineering department however at the relevant time BCC employed a traffic engineer. It is clear from the documents in respect of the super elevation works (Exhibit 10) that there was a process whereby tenders were received for those works, contractors were engaged, works were completed, and these works were approved and authorised by BCC.

53        There was no reference in any of the plans in respect of the bike path or super elevation works to the bluestone kerb. This kerb was installed after the super elevation works were completed. No documentation was provided by BCC in respect of the installation of the bluestone kerb. It was accepted by Mr O’Callaghan on behalf of BCC that there would have been a similar process in respect of the installation of the bluestone kerb to that undertaken in relation to the super elevation works.

54        The installation of the bluestone kerb was approved by BCC. The primary submission made on behalf of the plaintiff which I accept is that BCC therefore approved the installation of what was a significant hazard along the eastern edge of the bike path.

55        It is not alleged that there was any negligence on the part of the contractor in the installation of the bluestone kerb or in the work undertaken by that contractor. Therefore, in my opinion, it is not relevant that BCC are not liable for wrongs committed by contractors in the course of performing the work for which they were engaged. Rather the critical issue was whether the duty owed by BCC to the plaintiff was discharged by the engagement of the contractor.

56        It was agreed that in considering whether the BCC had discharged its duty by engaging independent contractors Leichhardt Municipal Council v Montgomery (2007) and in particular the judgment of Gleeson CJ was very relevant. In the context of discussing the statutory scheme in that case, Gleeson CJ stated:

“22. It is consistent with that statutory scheme to conclude that there is a duty in a roads authority to take reasonable care to prevent physical injury to a person such as the respondent from the carrying out of road works. It is also consistent with the statutory scheme to conclude that, if an independent contractor is engaged to perform such works, the roads authority remains under a ‘personal’ duty to take reasonable care to prevent such injury, and that duty is not discharged merely by exercising care in the selection of the contractor. Reasonable care on the part of the roads authority may well involve a certain level of scrutiny of the contractor’s plans and supervision of the contractor’s activities.…

23.     ...To speak of a local council having a duty to ensure that such an apparently low level and singular act of carelessness does not occur is implausible. It is one thing to find fault on the part of council officers where there has been a failure to exercise reasonable care in supervising the work of a contractor, or in approving a contractor’s plans and system of work. It is another thing to attribute to the council a legal duty of care which obliges the council to do the impossible: to ensure that no employee of the contractor behaves carelessly. …”

57        In considering the duty owed by Leichhardt Municipal Council Gleeson CJ emphasised that:

“26 …

It is a duty to exercise reasonable care. It is not discharged merely by engaging a reputable contractor. The exercise of reasonable care for the protection of road users, in a case where an independent contractor is engaged, may be affected by the nature of the work involved and the resources respectively available to the road authority and the contractor. What is required of a local council which engages a major construction company to build a bridge or tunnel may differ from what is required of another council in different circumstances. The content of a requirement of reasonable care adapts to circumstances, unlike the content of a requirement to ensure that care is taken.”

58        The only witness called by BCC, Mr Wilson-Brown, had no direct knowledge of BCC’s conduct in respect of the installation of the bluestone. Not only were no witnesses called by BCC in relation to these matters but no documents exist concerning the installation of the bluestone. The concession by Mr O’Callaghan that BCC must have engaged in a process was, in my opinion, both a correct and important concession. BCC employed a traffic engineer at the relevant time. The installation of a bluestone kerb was the type of activity that was well-known to municipal councils.

59        I am therefore not satisfied that BCC discharged the duty it owed to the plaintiff merely by engaging the services of contractors.

60        I do not accept the submission on behalf of BCC that it did not unreasonably expose the plaintiff to a risk of harm or that the plaintiff’s accident was a “freak” one. A statistical analysis of the numbers of persons using the bike path compared with absence of reports of accidents is relevant. The chance of an accident of this nature may therefore be considered to be statistically remote, however I am satisfied that it was still reasonably foreseeable and not far fetched and fanciful.

61        It is, in my opinion, highly relevant that the bluestone kerb on this section of the bike path was unexpected. I do not consider that either the risk factors of the bend in the path, the narrowness of the path, the bluestone edge and the exposed steel post individually or in combination were obvious to the plaintiff. A person riding a bicycle on the bike path will be travelling at some speed. This increases the likelihood that the rider may not see hazards or obstacles and increases the risk of serious injury resulting from a bike accident.

62 I am satisfied that there were reasonably practicable means of alleviating the hazard including erecting a fence between the edge of the bike path and the guard rail and erecting appropriate warning signs. I am satisfied that these are relatively inexpensive solutions. Whilst there was no precise evidence from Mr O’Brien on the actual cost of a fence or warning signs, it was clear from his evidence that these were practicable solutions. I have therefore taken into account the principles referred to in s.83 of the Wrongs Act 1958 in determining whether there has been a breach of a duty of care. I do not accept the submission that in all the circumstances of the case a reasonable response on behalf of BCC was to remain inactive having regard to the considerations referred to in the “Shirt calculus”.

63        BCC approved the installation of a bluestone kerb on the edge of the bike path. BCC was responsible for the bike path. It owed a duty to take reasonable care to prevent the foreseeable risk of injury to users of that bike path. BCC has in my opinion been in breach of that duty by approving the installation of what I find to be a significant hazard on the edge of that path. The installation of the bluestone kerb meant that there was zero lateral clearance. This was in contravention of Austroads Part 14 and VicRoads Cycle Notes.

64        I find that BCC breached the duty of care it owed to the plaintiff by approving the installation of the bluestone kerb at the edge of the bike path in a situation in which this meant there was zero lateral clearance on the eastern edge of the path, the bike path was only 2.5 metres wide, the path curved and the bluestone was close to the back of the road safety railing, in particular the exposed steel post of that road safety rail. I find that this breach of duty was a cause of the plaintiff’s injury loss and damage. Further I find that BCC failed to appropriately assess and control the presence of these factors which in combination constituted a significant hazard. BCC were responsible for maintaining and controlling the bike path. I accept the evidence of both Mr O’Brien and Mr Mitson that an inspection of this section of the path ought to have revealed the significant hazards in existence.

65        It was submitted on behalf of BCC that if there was any negligence on its part there was a high degree of contributory negligence on the part of the plaintiff. It was submitted that an appropriate apportionment of negligence to the plaintiff would be 75 per cent.

66        It was submitted on behalf of the plaintiff that the plaintiff had not been guilty of contributory negligence although it was accepted that the plaintiff had not seen the bluestone edging prior to the front wheel of his bicycle making contact with that bluestone.

67        The plaintiff did not see the bluestone edge to the bike path prior to impact. I find that he was travelling at a leisurely speed. I accept that there was a gust of wind which altered his course and as a result of contact between the front wheel of his bicycle and the bluestone edge he lost control of his bicycle and was thrown onto the steel upright. The bluestone edge was unexpected and to an extent obscured by the commencement of the guard rail. I am satisfied that the plaintiff was guilty of no more than mere inadvertence or inattention in not seeing the bluestone kerb prior to impact. The plaintiff was riding a bicycle on a shared bike path. I accept the plaintiff’s evidence that he was conscious of the bend in the path, the line in the middle of the path, that it was a shared path and there was a road safety barrier. The plaintiff was therefore riding his bike in an environment in which there were many distractions.

68        I am not satisfied the plaintiff failed to take reasonable care for his own safety. I am not satisfied there was any contributory negligence on the part of the plaintiff.

69        It was agreed between the parties that if I found as a fact that the installation of the bluestone kerb was separate and distinct to the super elevation works undertaken on Beach Road at “Quiet Corner” the plaintiff could not succeed in his proceeding against the second defendant VicRoads. It was submitted on behalf of BCC that the installation of the bluestone kerb did not form part of the road elevation work. This was an explanation for the failure to include any reference to bluestone kerbing in the plans for the road elevation works.

70        The bluestone kerb was not included in the plans of the road elevation works. There is no reference to the bluestone kerb in any of the documentation tendered in respect of the road elevation works. I am satisfied that the installation of the bluestone kerb was a separate and distinct act to the super elevation works.

71        The proceeding against the second-named defendant is therefore dismissed.

Damages

72        Special damages have been agreed between the parties in the sum of $29,309.79 representing $3,414.79 for medical and like expenses, $14,000 for pecuniary loss and $11,895 for future medical expenses.

73        I accept the plaintiff’s evidence on the nature of his injuries and their effects upon him.

74        I assess the plaintiff’s general damages for pain and suffering and loss of enjoyment of life in the sum of $200,000.

75        I shall hear the parties on the appropriate formal orders.