Moore v Ballina Shire Council

District Court

New South Wales

Medium Neutral Citation:

Moore v Ballina Shire Council [2022] NSWDC 691

Hearing dates:

14, 15 & 16 November 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Civil

Before:

Priestley SC, DCJ

Decision:

See [89]

Catchwords:

NEGLIGENCE – Breach – Duty of care

Legislation Cited:

Civil Liability Act 2002 (NSW)

Cases Cited:

Weber v Greater Hume Shire Council [2019] NSWCA 74

Strong v Woolworths [2012] HCA 5

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Plaintiff (Diane Margaret Moore)
Defendant (Ballina Shire Council)

Representation:

Counsel:
Hampson for the Plaintiff
Hannah for the Defendant

Solicitors:
Love for the Plaintiff
Thomas for the Defendant

File Number(s):

2022/00076743

Publication restriction:

Unrestricted

JUDGMENT

Overview

1. On 27 August 2020 Diana Moore, the plaintiff, was riding her electric bicycle upon a shared pathway designated to be used by both pedestrians and cyclists (“the pathway”). There were signs in the area indicating that people using the pathway should keep to the left thereby permitting the path to be used by people travelling in both directions whether they be travelling on foot or by bicycle. The pathway was 2.7m wide. The pathway is located within the bounds of the area of the defendant, the Ballina Shire Council (“the Council”). There is no issue in this dispute as to the Council relevantly being the occupier, that is, the entity with the management and control, of the pathway.

2. The incident the subject of these proceedings occurred shortly north of the Missingham bridge with the plaintiff travelling in an easterly direction upon the pathway that would take her along the north wall, that being the break wall on the northern side of the Richmond River.

3. The plaintiff had left her home approximately 15 minutes before the incident. She described the route by which she had come to be at the point of the incident. That description was somewhat confused, but there is no issue about it, and any confusion is attributable to her being a nervous witness. Shortly prior to the incident she was travelling east along this shared pathway and observed that there were two pedestrians walking in front of her.

4. In broad terms and before descending into the detail of what is in dispute the plaintiff sought to overtake the pedestrians that were walking in front of her by moving to the right-hand side of the pathway. One of the pedestrians walking in front of the plaintiff being the one closer to the middle of the pathway moved firstly to the left upon hearing the plaintiff ring her bell and then moved to the right before then moving to the left again. The move to the right caused some concern on the part of the plaintiff. Just how it impacted on her control of the bicycle is a matter in issue. Did she maintain her intended course or did the pedestrian’s actions cause her to “swerve” to miss the pedestrian, so as to be the real cause of her accident. On…