Rockdale City Council v Simmons

[2015] NSWCA 102

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rockdale City Council v Simmons [2015] NSWCA 102

Hearing dates:

24, 25 September 2014

Decision date:

17 April 2015

Before:

Beazley P at [1]; McColl JA at [1]; Barrett JA at [1]

Decision:

(1) Appeal dismissed with costs;

(2) Cross-appeal allowed in part;

(3) Set aside the judgment of the court below insofar as it found the cross-appellant guilty of contributory negligence;

(4) Verdict and judgment for the cross-appellant for $1,160,000 plus interest from 27 September 2013;

(5) Order the second cross-respondent to pay the costs of the cross-appeal insofar as it concerned the issue of contributory negligence;

(6) Otherwise dismiss the cross-appeal with costs.

Catchwords:

TORTS – negligence – duty of care – breach of duty – where plaintiff seriously injured when his bicycle collided with boom gate erected by Council – boom gate intended to close public road to prevent access to carpark at night by hooning motorists – where arrangement with local club to open boom gate in the morning at a time at its discretion – where other Council carparks opened at fixed times by Council officers – where closed boom gate created “perceptual trap” for cyclists – where previous incidents of cyclists injured colliding with boom gate notified to Council – whether s 5B Civil Liability Act 2002 (NSW) correctly applied – standard of liability – whether primary judge applied too exacting a standard of reasonableness by referring to Council “ensuring” various matters

TORTS – negligence – causation – whether appellant’s breach caused respondent’s injury – previous incidents of cyclist colliding with boom gate notified to Council – whether Council failed to take simple measures to mitigate against threat of harm within reasonable time – s 5D Civil Liability Act 2002 (NSW)

TORTS – negligence – whether constructing boom gate across public road involved exercise of a “special statutory power” – whether boom gate a “traffic control facility” – s 87 of the Roads Act 1993 (NSW) – whether boom gate regulated traffic on a public road for the purpose of protecting members of the public from any hazards on the public road – s 115(2) Roads Act 1993 (NSW – s 43A Civil Liability Act 2002 (NSW)

WORDS AND PHRASES – “special statutory power” – “based on” – s 43A Civil Liability Act 2002 (NSW)

TORTS – negligence – contributory negligence – whether any fault on plaintiff’s part contributed to his accident – where plaintiff keeping a proper lookout

PRACTICE – pleading – s 43A Civil Liability Act 2002 (NSW) – whether liability based on public or other authority’s exercise of, or failure to exercise, special statutory power – turns on consideration of acts or omissions pleaded – unnecessary to expressly identify statutory source of liability

Legislation Cited:

Civil Liability Act 2002 (NSW)
Roads Act 1993 (NSW)
Transport Administration Act 1988 (NSW)

Cases Cited:

Bryden as Executor of Estate of Anthony (decd) v Minister for Lands [2011] NSWSC 945; (2011) 184 LGERA 333
Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355; (2008) 51 MVR 549
Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 203 LGERA 352
Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840; (2003) 58 NSWLR 535
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22.
Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115; (2009) 54 MVR 214
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Roads and Traffic Authority of NSW v Refrigerated Roadways [2009] NSWCA 263; (2009) 77 NSWLR 360
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562

Category:

Principal judgment

Parties:

Rockdale City Council (Appellant; Second Cross-Respondent)
Alex Simmons (Respondent; Cross-Appellant)
St George Sailing Club (First Cross-Respondent)

Representation:

Counsel:
Mr G M Watson SC with Mr N E Chen (Appellant; Second Cross-Respondent)
Mr D R Campbell with Mr J C Sheller and Ms G C Lewer (Respondent; Cross-Appellant)
Mr P Morris SC with Mr R Perla (First Cross-Respondent)

Solicitors:
TressCox Lawyers (Appellant; Second Cross-Respondent)
Greg Walsh & Co (Respondent; Cross-Appellant)
Moray & Agnew (First Cross-Respondent)

File Number(s):

2013/316437

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2013] NSWSC 1431

Date of Decision:

27 September 2013

Before:

Hall J

File Number(s):

2008/289194

HEADNOTE

[This headnote is not to be read as part of the judgment

The respondent, Alex Simmons, was seriously injured at 6:15am on 11 April 2007 when he rode his bicycle into a boom gate that was closed across Riverside Drive, a public road in San Souci. The appellant, Rockdale City Council (the “Council”), had constructed the boom gate to enclose a stretch of Riverside Drive that was adjacent to the St George Sailing Club (the “Club”) and the Club’s car park. The Council had legal authority and control over the boom gate, Riverside Drive and the car park. The Club had entered into an informal agreement with the Council that allowed it to lock and unlock the gate at its discretion.

The respondent brought proceedings in negligence against both the Council and the Club. At first instance, Hall J found that the Council had been negligent, but that the Club had not. His Honour awarded the respondent damages in the amount of $1,160,000, reduced by 20 per cent due to the respondent’s contributory negligence.

The following issues arose on appeal:

(1)   Whether the primary judge erred in finding a duty of care was owed by the Council to the respondent;

(2)   Whether the primary judge erred in finding that the Council breached its duty of care;

(3) Whether the primary judge erred in his application of s 5B of the Civil Liability Act 2002 (NSW);

(4)   Whether the primary judge erred in finding the plaintiff had established causation;

(5) Whether the primary judge erred in finding the Council had not established the construction and operation of the boom gate involved the exercise of a “special statutory power” within the meaning of s 43A of the Civil Liability Act as it was;

(6)   Whether the primary judge’s contributory negligence apportionment of 20 per cent for the respondent was too low.

The respondent cross-appealed against both the Council and the Club. The issues on the cross-appeal were:

(1)   Whether the primary judge erred in failing to find the Club owed the cross-appellant a duty of care;

(2)   Whether the primary judge erred in finding contributory negligence on the cross-appellant’s part and, if he did not, whether the apportionment of 20 per cent was too high.

Held by the Court dismissing the appeal and allowing the cross-appeal in part:

The appeal

As to issue (1)

(1) The primary judge was correct in finding that the gate represented a “perceptual trap” such that the respondent could not and did not detect that the gate was closed in sufficient time to avoid a collision: [20] – [32].

(2) Despite the existence of traffic signs such as arrows directing traffic against the direction in which the respondent, cycled and ‘No Exit’ signs, the Council was aware that that “sporting cyclists” regularly exited Riverside Drive through the entrance to the car park closed by the boom gate: [39] – [48].

(3) The primary judge did not err in finding that the respondent did not have a reasonable alternative exit from the car park: [49] – [56].

(4)   The primary judge did not err in finding there was no appropriate arrangement in place between the Council and the Club for the manning and operation of the boom gate: [62]

(5) The primary judge did not err in finding the Council owed a duty of care to the respondent: [74] – [75].

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 applied.

As to issues (2) and (3)

(6) The primary judge correctly applied the criteria of reasonableness in s 5B of the Civil Liability Act: [71] – [73].

(7) The primary judge’s findings as to the failure of the Council to implement an adequate system for opening and closing the gate were supported by evidence: [57] – [63].

(8) The respondent was exercising reasonable care for his own safety as warning arrows and signs in the car park were for the purpose of alerting road users to traffic movement: [74]-[76].

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42: 234 CLR 330 applied.

As to issue (4)

(9) The primary judge did not err in finding a causal connection between the acts or omissions of the Council and the respondent’s injury: [86], [89].

As to issue (5)

(10) The primary judge did not err in concluding that the Council was not exercising a “special statutory power” within the meaning of s 43A of the Civil Liability Act.

As to issue (6)

(11)   By reason of the resolution of the cross-appeal, this issue does not arise.

The cross-appeal

As to issue (1)

(1) The primary judge did not err in refusing to find the Club owed the cross-appellant a duty of care. The Club did not know or ought to have known of the risk posed to the respondent and therefore cannot be expected to have taken reasonable precautions against the risk: [125] – [128].

As to issue (2)

(2) The primary judge erred in finding contributory negligence: [134].

INDEX

Circumstances of the accident

The “could not see” issue

The proper lookout issue

The “sporting cyclist” – “recreational cyclist” distinction

Applicability of traffic signs

The reasonable alternative exit issue

The arrangement between the Council and the Club

Other matters

Breach: s 5B of the Civil Liability Act

Causation: s 5D of the Civil Liability Act

Conclusion on the Council’s negligence

Section 43A of the Civil Liability Act – a defence?

The cross-appeal

Contributory negligence

Orders

judgment

1. THE COURT:   The respondent, Alex Simmons, suffered severe injury on 11 April 2007 when he rode his bicycle into a boom gate that had been locked in a closed position across Riverside Drive Sans Souci, close to its intersection with Fraters Avenue. The relevant stretch of Riverside Drive adjoined (and was effectively part of) a carpark adjacent to St George Sailing Club (“the Club”). The respondent’s intention, at the time, was to ride out of the carpark on to Fraters Avenue.

2. The respondent sued the appellant, Rockdale City Council (“the Council”), and the first cross-respondent, the Club, in negligence in the Common Law Division in the Supreme Court. The Council had legal authority and control over the carpark and Riverside Drive. It had constructed and retained control over the boom gate and its operation. The Club was party to an arrangement with the Council concerning locking and unlocking the gate. Hall J found that the Council had been negligent but the Club had not. He also found contributory negligence on the part of the respondent. Substantial damages were awarded against the Council.

3. On appeal, the Council contends that the primary judge erred in finding that a duty of care in negligence was owed by the Council to the respondent. The Council also says that, if any duty was owed by it, that duty was not breached. Issues about contributory negligence are raised by both the Council and the respondent. Save to the extent of the contributory negligence issue, there is no dispute about the quantum of damages, they having been agreed by the parties subject to the determination of the liability issues.

4. The Council’s challenge to the finding that it owed a duty of care is based on certain factual errors said to have been made by the primary judge. The following findings are challenged:

(a)   that the closed boom gate caused “visual ambiguity” so that the respondent “could not” see it;

(b)   that the respondent was keeping a proper lookout;

(c)   that a distinction between “sporting cyclists” and “recreational cyclists” meant that different rules applied;

(d)   that certain traffic controls did not apply to the respondent or to “sporting cyclists” generally;

(e)   that there was no reasonable alternative exit from the carpark to Fraters Avenue; and

(f)   there was no appropriate arrangement in place between the Council and the Club for the manning and operation of the boom gate.

5. In addition, the Council says that the primary judge failed to consider:

1. whether any defects in the gate were defects in the original design or construction;

2. the consequences of a cycleway safety audit undertaken by the Council;

3. what could reasonably have been done in the time between an earlier similar incident (involving a Mr Smith) and the incident involving the respondent.

6. The Council also contends that the primary judge erred by failing to apply certain provisions of the Civil Liability Act 2002 (NSW).

7. The respondent brings a cross-appeal against the Club and the Council. He contends that the primary judge erred in finding, first, that no duty of care owed by the Club required it to have a proper system in place for the opening and closing of the boom gate, and second, that there was no failure to attend to such a system amounting to breach of a duty of care. The cross-appeal also challenges the finding that he was guilty of contributory negligence.

8. For the reasons that follow, we are of the view that the appeal should be dismissed. The cross-appeal should be allowed against the Council to the extent it challenges the primary judge’s finding that the respondent was guilty of contributory negligence, but should otherwise be dismissed.

Circumstances of the accident

9. The incident occurred at 6.15am on 11 April 2007. The respondent was an experienced cyclist who cycled regularly. He had participated in a number of cycling championships and described himself as a “very keen cyclist”.

10. On the morning in question, the respondent, having crossed the Taren Point Bridge from the south, rode from the northern end of the bridge in a generally easterly direction along Riverside Drive, a public road (designated a “local street”) which runs parallel to the northern bank of Georges River. The bulk of the carpark area is to the north of Riverside Drive. The premises of the Club adjoin Riverside Drive to the south and front on to (and extend into) Georges River. At the eastern end of the carpark, the far end from the respondent’s perspective, lay Fraters Avenue, which is a residential street. The respondent’s intention was to ride along Riverside Drive and into Fraters Avenue, exiting the carpark through its vehicular entrance. The boom gate was positioned at that entrance. When closed, it prevented movement of vehicles between Fraters Avenue and the carpark.

11. On the section of Riverside Drive within the carpark traversed by the respondent as he approached Fraters Avenue and the boom gate were several speed humps. Outside the main entrance to the Club’s premises there was a marked pedestrian crossing. There were also painted arrows on the road surface indicating the direction that entering vehicles were to take and that travel in the opposite direction was not permitted. The arrows pointed away from Fraters Avenue and towards the Club’s premises. The respondent was riding in the direction opposite to that indicated by the arrows. Two “No Exit” signs were installed on poles at the carpark entrance (one on each side), adjacent to the boom gate, facing towards the carpark area, that is, in the direction from which the respondent approached.

12. Vehicles leaving the carpark did so into Fraters Avenue via an exit to the north of the vehicular entrance. Installed in the roadway across the exit were retractable spikes which allowed vehicles to exit but prevented entry.

13. A pathway ran along the river foreshore to the south of Riverside Drive and the carpark. Part of it was adjacent to the northern frontage of the Club’s premises. There was an opening from Riverside Drive on to this pathway close to the boom gate. At that opening stood a sign carrying pictures of a pedestrian and a bicycle thereby indicating a shared pathway. Anyone walking or cycling from the carpark on to the pathway could exit on to Fraters Avenue from the pathway after a short distance.

14. For a person walking or riding a bicycle within the carpark in the direction taken by the respondent, there were thus three possible exits: through the vehicular exit marked as such and equipped with spikes to prevent vehicular entry; through the vehicular entrance marked “No Exit” at which the boom gate was installed; and through the opening on to the shared pathway near the boom gate where the sign indicating shared pedestrian and bicycle use stood.

15. The boom gate consisted of a white horizontal steel rail (or pipe) about 100mm in diameter and about 7.5m long with two vertical struts (one longer than the other) and a diagonal rail below so as to make the gate structure, in general terms, a hollow triangle outline. A strip of red and white reflective material was affixed to the horizontal bar which was somewhat more than a metre above the surface of the roadway. The gate was swung from a post on the southern side of the roadway. When the gate was closed, the end of the bar was locked to a similar post on the northern side of the roadway. When it was open, the end of the bar was locked to a similar post on the southern side.

16. The boom gate was installed by the Council in 2004 following continuing complaints by nearby residents about antisocial behaviour by motorists in the carpark late at night and in the early hours of the morning. Cars were driven noisily and recklessly on the open area. This interfered with the amenity of the residential neighbourhood. The Club wrote to the Council at the time supporting the installation of the gate.

17. The primary judge made the following important finding (at [57]):

“On the evidence, Council officers had knowledge of and understood the reasons for cycle-traffic proceeding through the boom gate on to Fraters Avenue. Mr Mable, the Council's Executive Engineer who has been with the Council since 1976 and who is also a cyclist, said that he himself had cycled passed [sic, ‘past’] the boom gate to reach Fraters Avenue.”

18. The respondent had taken the same route on many previous occasions – “literally hundreds of times”. He said that, as he approached the site of the gate, it was “breaking daylight”. He checked that no traffic was approaching along Fraters Avenue. Then suddenly, “out of nowhere a boom gate closed across the entrance to the carpark appeared in front of me”. He could not avoid colliding with it and did so at a speed of about 30 km per hour. He had not encountered a closed boom gate at that point on any previous occasion. He was not aware that there was a gate. He had noticed the structure but took it to be a fence. He could not specifically recall any “No Exit” sign near the boom gate. He conceded that he may have seen such a sign on some occasion but “assumed that meant for the motor vehicles”. He said that the closed boom gate was not obvious.

19. There were no witnesses to the accident. The primary judge found the respondent (at [281]) to be a forthright, frank and impressive witness. Neither the Council or the Club submitted to the contrary. His Honour accepted (at [282]) his account of it as both truthful and reliable.

The “could not see” issue

20. A critical finding made by the primary judge was that the respondent “could not, and did not, detect that the boom gate … was in a closed position until it was too late to avoid it”. The Council says that this finding was not available on the evidence and is contradicted by the evidence.

21. As the Council points out, the evidence of the respondent was that he did not see the gate “until it was too late”. That says nothing about whether he could have seen it earlier. Furthermore, the respondent accepted in cross-examination that, had he been keeping a proper lookout, he would have seen the gate “had there been an obvious gate to see”. He maintained, however, that there was not an “obvious gate to see”. As we have said, he said the gate appeared “ … suddenly, out of nowhere” and that he had only a “fraction of a second to spare and [he] couldn’t avoid hitting it … [t]here was no time for braking or any avoidance manoeuvres”: primary judgment (at [82]). His evidence, which the primary judge accepted, was that in his experience of cycling the route, the boom gate had always been open: primary judgment (at [269]).

20. Expert witnesses on both sides considered the matter of the visibility of the gate in light conditions such as prevailed at the time of the collision. Each of Mr Jameson, Mr Joy and Mr Kiernan was of the opinion that the gate was reasonably visible. Two of them indicated distances back from the gate at which it was visible – 35 metres in one case and 45 metres in the other.

21. However, two of the experts spoke of a “perceptual trap” – which, in context, referred to similarity of the outline of the gate when closed and the outline of the gate when open, as viewed by a person approaching in the way that the respondent did. As counsel for the respondent pointed out, the respondent gave evidence that he did see a structure ahead, as he had on many other occasions, but perceived it to be at the side of the road rather than across it. On the basis of that evidence, the respondent’s statement about what he saw only when it was too late related to the closed gate rather than the open gate at rest at the side of the roadway. Photographs in evidence made it plain that the roadway curved to the left at the relevant point and that the outline of the open gate and that of the closed gate were similar from the point of view of an approaching person, with the open gate facing obliquely towards such a person. It was not as if the open gate was fastened back parallel to a straight kerb. It was fastened back adjacent to a curved kerb.

22. In those circumstances, the finding indicated by the evidence was, in our opinion, that the respondent did see the gate as he approached but perceived it to be open, as it had been on many earlier occasions on which he had taken the same route. Because of the similarity in outline of the open gate and the closed gate and the respondent’s experience on those many earlier occasions, it was his realisation that the gate was closed rather than open that came too late for him to avoid collision.

23. Three other cyclists gave evidence. Mr Crouchley said that he had often cycled along the relevant route and that, until the respondent’s accident, he had not known that there was a boom gate there. The primary judge referred to evidence of Mr Crouchley that he had unexpectedly found the gate closed on occasions and, on one occasion, struck it. However, those occasions were subsequent to the incident involving the respondent and after the gate and the surroundings had been modified to improve visibility.

24. The second cyclist witness was Mr Unicomb. The primary judge referred to Mr Unicomb’s evidence that he had, in 2006, collided with the closed gate at low speed and that a person in attendance, who said he was a cleaner at the Club, had then unlocked the gate. Mr Unicomb said that the gate was not apparent until one was virtually on top of it and that this was because of the angle or position of the gate which made it hard to assess its actual location. He also said “it wasn’t apparent that the gate was closed because of the oblique difficulty in assessing … [cut off]”.

25. The third cyclist was Mr Smith. The primary judge did not refer to the parts of his evidence about to be mentioned. Mr Smith regularly cycled along the relevant route. He collided with the closed gate, on 23 January 2007 at about 6am. He had not previously seen the gate closed. His evidence in relation to the incident on 23 January 2007 was that he saw several white markings across the carpark roadway but did not realise that the marking furthest from him was the closed gate, which “blended into the roadway”. It was only when he was a metre or two away that he realised that that white marking was a physical barrier in front of him. Mr Smith sent an email to the Council on 27 January 2007 in which he specifically referred to the difficulty of perceiving a closed gate in his path.

26. The evidence of Mr Unicomb and Mr Smith bore out the “perceptual trap” theory. The position and structure of the gate and the context in which it was positioned made it difficult for it to be seen by someone cycling towards it and that difficulty was accentuated by the similarity between the outline of the open gate and outline of the closed gate.

27. This is starkly illustrated by photographs contained in a supplementary report prepared by Mr Jamieson. Figure 1 in that report shows the gate (albeit in a subsequently modified form with “zebra board” attached) in the closed position as it would be seen by someone approaching it in the direction taken by the respondent. Figure 2 shows the gate in the open position as viewed from the same point. In each photograph, the horizontal rail, the vertical struts and the diagonal rail below are visible and the end of the top rail is seen to be flush with a post. In Figure 1, that post is the post on the northern side of the roadway (that is, the side opposite that on which the gate is hinged), while in Figure 2 the end is flush with the post on the southern side of the roadway (the side on which the gate is hinged). The significant point is that the general outline is the same in both photographs, although the angle of the open gate is such as to make its outline seem somewhat shorter (from hinge to end) than that of the closed gate.

28. Certain of the expert witnesses rejected the “perceptual trap” theory. They said, in essence, that if one looked closely at the various photographs, one could see whether the gate was open or closed. That is no doubt so. But the point is that there is a sufficient degree of similarity between the appearance of the closed gate and the appearance of the open gate to explain how someone who had passed the gate numerous times when it was open (and who took it to be a fence) could readily have mistaken the closed gate for an open gate (or what he thought was a fence).

29. The findings of the primary judge on this aspect (at [283]) were:

“The plaintiff's evidence is consistent in many respects with the expert evidence, in particular in relation to the issues of ‘ambiguity’, ‘perceptual trap’ and ‘contrast’ and the presence of other suggested, ‘cues’. He said in the clearest terms, and I accept:

(i)    That he could not discriminate or detect the gate’s position as being other than in its usual position until he was a very short distance from it.

(ii)    That he had, up to that time, maintained an appropriate look out, including, in particular, looking ahead of him as he rode and taking observations to his left and right as he approached for the presence or otherwise of traffic on Fraters Avenue.

(iii)    That the white tubular horizontal metal structures of the boom gate when open had from the approach of an approaching cyclist, following the plaintiff's route, the appearance of a white metal fence-like structure.

(iv)    The boom gate when in its closed position, in some of its aspects, presented a similar appearance as when it was in the oblique angled position in the open position.” (Emphasis in original)

32. In our opinion, the findings of the primary judge on this aspect were supported by the evidence. In this respect too, it should be noted that the primary judge had the benefit of a view of the area. His Honour correctly found that the respondent could not (and did not) detect the closed condition of the gate until it was too late to avoid collision with it.

The proper lookout issue

33. The Council conceded that if its contention on the “could not see” issue was not upheld, its submission that the respondent did not keep a proper lookout would fail. It is therefore unnecessary to say any more about that matter.

The “sporting cyclist” – “recreational cyclist” distinction

34. The primary judge referred to the respondent on several occasions as a “sporting cyclist” and compared “sporting cyclists” with “recreational cyclists”.

35. The distinction was seen as particularly relevant to the shared pathway along the river foreshore. On the approach the primary judge took, that pathway, used by both pedestrians and cyclists, was suitable for recreational cyclists but not sporting cyclists. The judge also took the view that the vehicular exit from the carpark was not suitable for sporting cyclists.

36. The basis for the distinction the judge drew was obviously the method of riding employed. Sporting cyclists travelled at high speed. The respondent’s speed was some 30 km per hour when he struck the boom gate. That is indicative of much greater speed than, say, a parent cycling with children. Cyclists of the latter kind could safely use a pathway shared with pedestrians. Cyclists travelling at 30 km per hour or more could not.

37. Another characteristic of “sporting cyclists” implied by the primary judge’s observations is that they make infrequent stops and prefer to proceed in generally the same uninterrupted manner as motor vehicles. This told against their dismounting and carrying their bicycles across the vehicular exit from the carpark.

38. In our opinion, the evidence before the primary judge warranted the distinction he drew between sporting cyclists and recreational cyclists. That distinction was relevant to certain other aspects of the decision to which we now turn.

Applicability of traffic signs

39. The course the respondent took involved his riding against both directional arrows painted on the Riverside Drive roadway and the “No Exit” signs standing at the sides of the roadway adjacent to the boom gate.

40. The primary judge proceeded on the basis that the instruction or direction given by the arrows and the signs applied only to motor vehicles. In relation to the arrows, he referred to the opinion of an expert, Professor Wenderoth, but as the Council correctly notes, that witness merely made an assumption that the arrows applied to motorists only. As to the “No Exit” signs, the primary judge said that “on the evidence”, the signs were intended for or directed at motorists only, the intention being to deflect them to the opening at which the retractable spikes were installed. As the Council correctly observes, there was no evidence supporting that conclusion.

41. The Australian Road Rules incorporated into the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW) apply to persons riding bicycles on roads. The respondent points, however, to evidence that, whatever may have been the technically correct view about the applicability of the arrows and the signs, the Council was aware that cyclists regularly used the roadway in precisely the way in which the respondent used it on the day in question.

42. Following his own accident on 23 January 2007, Mr Smith sent an email to the Council pointing out the hazard represented by the boom gate. He explained that he had collided with the barrier and how he had come to do so. He said that a passer-by had told him of a similar accident. Mr Smith later received a telephone call from a Council officer who said he was “on the site” and asked Mr Smith what had happened. Upon being given Mr Smith’s description, the officer said, “I can see what you mean.”

43. Mr Smith’s father also contacted the Council. A Customer Request for Maintenance form (“CRM”) made by a Council officer (dated 24 January 2007) is as follows:

“[A]s you approach the gate the two ‘No Exit’ signs and some red striped ‘dayglow’ tape on the bar. Approx 5 foot before the gate is a blue sign for pedestrians and cyclists, however the view of the gate is obstructed by the bush and growth. He considers the sign to go left needs to be further away from the barrier. Barrier is also likely to blend into the various road markings. Mr Smith requests that council consider better marking on the gate and warnings of the gate further away from it.”

44. This document was available to Council officers for their inspection.

45. Mr Mable, a Council officer, was himself a regular cyclist. He often rode through the carpark and saw others doing so. He observed cyclists emerge into Fraters Avenue through the vehicular entrance and had taken this route himself. He explained why that was the preferred route for serious cyclists – essentially, because the shared pathway along the foreshore and the vehicle exit were not practicable for serious cyclists.

46. Mr Mable also said, however, that the boom gate “would be easy to see, if it was closed” and would be “obvious so far as I am concerned” and he “did not believe that the boom gate presented any danger and that is why I did not take any step to do anything”. He regarded Mr Smith’s accident as a “freak accident”.

47. Mr Lay, another Council officer who visited the site with Mr Mable, was familiar with the carpark. He said in evidence that he expected cyclists to use the shared pathway but knew that some of them liked to cut through the vehicular entrance to the carpark. He also knew that if there is an obstruction across a roadway, people can run into them. However, like Mr Mable, Mr Lay considered the gate “fairly obvious” and thought that “nothing needed to be done”.

48. Further, a Mr Vaidya wrote a note on 9 February 2007 addressed to Mr Mable and filed in the Council’s CRM, referring to their discussion that he (Mr Mable) would “organise line marking and directional arrows for cyclists to follow the path at this location”. The evidence therefore supported a finding that, even though the arrows on the roadway and the “No Exit” signs applied to cyclists, the Council was aware – and had been for some time – that cyclists regularly rode out of the carpark and into Fraters Avenue through the vehicle entrance and thereby disobeyed the directives given by the arrows and the signs.

The reasonable alternative exit issue

49. Part of the Council’s case was that the respondent could have used either of two alternative exits from the carpark. The first was via the vehicular exit, the second via the shared pathway along the foreshore.

50. The primary judge held (at [56(3)] that there “were no other convenient or practical exit points”.

51. As to the vehicular exit, the primary judge found (at [69], [72] and [339]) that this was “unsuitable for use by cyclists”. His Honour referred (at [72]) to evidence of Mr Unicomb in that respect. That witness said in his witness statement that the vehicular exit “was most unsuitable to be utilised as an exit point for persons on bicycles”. He was not cross-examined about this.

52. Mr Crouchley gave evidence that it was possible for a cyclist to ride around the side of the spikes. The task is, however, “quite difficult”, as there is little room between the spikes and an adjacent pole. As experienced riders, Mr Crouchley and his companions could negotiate this space without dismounting, although “it’s a little bit hairy” and “we’ve got to be very careful”. Mr Crouchley had “seen plenty of casual guys get off and step across because it is that close”.

53. The primary judge’s assessment concerning the vehicular exit was, in our opinion, correct. That exit was unsuitable for cyclists generally since all but the very experienced must dismount and even the very experienced have to manoeuvre in a particularly skilful way through a very narrow opening if they are to avoid dismounting. The judge did not say that it was impossible for a cyclist to use the vehicular exit – merely that the exit was unsuitable. It must have been obvious that the difficulties associated with it, even for the very experienced, were such that cyclists would avoid it unless there were no practicable alternative.

54. In relation to the shared pathway along the foreshore, the judge’s finding of unsuitability was based on a perceived danger of collision with pedestrians and other cyclists. His Honour referred, in that respect, to evidence of the respondent, Mr Crouchley and Mr Mable.

55. The Council says that this part of the decision loses sight of the fact that there was no suggestion that a cyclist diverting on to the pathway would have to use it for anything but a short distance. It was possible to access Fraters Avenue from the pathway after travelling only a short way from the carpark. That criticism is, in our view, misplaced. Whether use of the pathway would have been required for a long distance or only a short distance is beside the point. The danger of collision and the consequent undesirability of use of the shared pathway would present itself whatever the distance.

56. The judge’s findings as to the absence of any reasonable alternative exit should not be disturbed.

The arrangement between the Council and the Club

57. Both Council officers and employees of the Club held keys to the boom gate. The carpark was available for any motorist wishing to use it but was predominantly used by members of and visitors to the Club when the Club was open. Locking of the gate necessarily had to accommodate the requirements of those persons, as well as Club employees.

58. As the proposal for the installation of the boom gate developed in response to the concerns of residents already noted, Council officers had discussions with representatives of the Club. The primary judge referred to these and made the following findings about the arrangement reached (at [146]):

“In relation to the arrangements between the Council and the Club for the daily opening and closing of the boom gate, the evidence establishes and I so find the following:

(1)    No formal or express contractual relationship was entered into between the Council and the Club for the manning and operation of the boom gate. No obligation was placed upon the Club to ensure that it would be opened at a specified hour. The Club had conferred upon it a discretion in the terms extracted above.

(2)    There was no formal resolution by Council or instrument of delegation by the Council delegating or imposing specific responsibilities in respect of the operation of the boom gate on the Club or on any other body or person.

(3)    The arrangement between the Council and the Club was a loose or informal one.

(4)    The Club at all relevant times assumed the task of operating the boom gate, that is, to close it of a night and open it in the morning with a discretion in it in that regard. The arrangement plainly was one that suited the Club as it conducted functions and the like at its premises at night with variable closing hours.

(5)    There is Council documentation that initially spoke of a proposal for the opening and closing of the boom gate at 11.00pm and opening at 5.00am. It is likely that the proposal for a 5.00am opening time was put forward by police. No other person was identified as having specified 5.00am. However, that proposal was subsequently made subject to the provision ‘... and at discretion of St George Sailing Club’. Council agreed to it at the request of the Club.

(6)    The Club therefore subsequently allocated the closing and opening of the boom gate by one of its employees, the cleaner.

(7)    The evidence does not establish that the Council had considered how the modifications to the carpark area may impact upon cyclists. No proposal for redirecting cycle traffic or other precautions as were later adopted in 2007 were considered.

(8)    There does not appear to have been any consideration by the Council as to what would occur should the Club's cleaner be unavailable to open the boom gate.”

59. His Honour also said (at [147] – [148]):

“At all relevant times the Council was the local government authority with legal authority and control over Riverside Drive including the new boom gate. Given the high frequency of early morning cyclist use of Riverside Drive, there was a need for a system that would ensure that the boom gate was placed in the open position in a timely manner. There was no evidence that prevented the fixing of 5.00am as proposed by police (or between 5.00am and 6.00am) as the time at which opening of the gate was to occur. The need for flexibility for the Club related to closing the gate after its night functions.

The ‘arrangement’ between the defendant Council and the Club for the opening and closing of the boom gate ultimately was dependent upon the Club’s cleaner being available to open the boom gate each day. In the absence of a secure alternative system the ‘arrangement’ was likely to fail whenever the Club’s cleaner did not attend on time, which was the circumstance that arose in respect of the three accidents to which reference has been made above.”

60. The Council submitted on appeal that these findings were not available on the evidence and were, in any event, irrelevant. The Council says that there appears to have been a finding of negligence in passing the resolution giving control of the carpark gate to the Club and that this was not the case that was pleaded.

61. The respondent’s position is that the findings were both justified by the evidence and relevant. As to relevance, the respondent points out that the Council controlled the land in question and was under a duty to exercise reasonable care for the safety of persons coming on to the land. Apart from statute, the test for determining a road authority’s liability is the ordinary test of liability in negligence: Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22. It follows, the respondent says, that the judge’s findings were relevant. That submission should be accepted. The road authority’s duty to exercise reasonable care owed to users of the road will sometimes be sufficiently discharged by engaging a competent contractor. That possibility was referred to by Gleeson CJ in the case just mentioned (at [26]). The nature and scope of the contract and other arrangements between the Council and the Club were therefore relevant to the question whether the Council had discharged its duty in that way.

62. We consider the judge’s findings (at [147] – [148]) set out above, to be fully supported by the evidence. The Council had given consideration to the possibility of instituting a system under which locking of the gate at night and unlocking in the morning were attended to by its own outdoor staff or contractors who performed the same tasks daily at a number of other waterfront carparks and reserves. In those other cases, the fact that the Council was directly in charge of the operation no doubt meant that a system of control and accountability applied, with relevant personnel under specific instruction as to times of opening and closing and other relevant matters; and also with arrangements in place to cater generally for illnesses and other absences of such personnel. In the case of the carpark relevant to these proceedings, however, the Council was content to leave locking and unlocking wholly in the hands of the Club, without supervision and without checking.

63. The judge was, in our opinion, correct in his conclusion that the Council failed to implement a system for the opening of the gate at a specified time each day.

Other matters

64. The Council complains that the primary judge did not consider whether any defects in the gate were defects in the original design or construction, the consequences of an audit and things that could have been done in the time available after Mr Smith’s collision.

65. There was, the Council says, no evidence that the layout or design failed to comply with any design standard or practice. Rather, there was evidence that the gate was of a common design.

66. As the submissions of the respondent point out, the judge found (at [186](1)) that steps taken by the Council in response to Mr Smith’s notification (and that of his father) in relation to his collision did not seek to identify the probable or potential causes of Mr Smith’s accident and, in particular, did not involve examination of the gate in the closed position. This was despite clear reference, particularly in the father’s complaint, about difficulty in seeing the gate closed. Thus, that information was before the Council before the respondent’s accident.

67. An audit of the riverside area was carried out by external consultants in 2007. As the judge noted (at [353]), the Council relied on the fact that the audit did not produce any recommendation or suggestion in relation to the boom gate. However, there was clear evidence that, in response to the notification by Mr Smith and his father, Council officers had inspected the particular gate prior to the respondent’s accident and acknowledged the problem to which reference had been made in Mr Smith’s email (see [41] above).

68. The Council contends that, because the boom gate was designed and constructed by a planning department in conjunction with specialist designers and approved by police, it was entitled to believe that the design was safe. In fact, however, the Council, through responsible officers, had knowledge that serious cyclists habitually used the vehicular entrance in the same way as the respondent did and that there had been earlier collisions with the gate. It may well be that the gate was a well-designed and safe gate from other points of view, but from the perspective of cyclists whose activities were known to the Council it had proved itself to be a hazard. And the Council knew from well before the respondent’s collision that it was a hazard and that it presented a significant risk of harm to cyclists such as the respondent.

69. It may be accepted that the primary judge did not address precisely which precautions could reasonably have been taken to avoid similar risk of harm. But the possibilities were obvious. The gate could have been moved to any one of a number of other positions. A different type of gate could have been installed. It is scarcely conceivable that the same perceptual trap would have been produced by, say, a bright orange gate of solid panels placed before the commencement of the curve from the carpark to Fraters Avenue so that, when the gate was closed, it squarely faced a bicycle travelling in a straight line in an easterly direction along Riverside Drive and, when open, folded back so that, from the viewpoint of someone riding such a bicycle, only its edge could be seen.

Breach: s 5B of the Civil Liability Act

70. The Council submitted on appeal that the primary judge had erred in the application of s 5B of the Civil Liability Act. The complaint is that consideration of the provisions of s 5B occurred at [453] to [462] of the judgment and followed, rather than preceded, the recording of both a finding that the Council had failed “to exercise reasonable care to avoid foreseeable injury to cyclists/users” (at [414]) and a finding that “the Council’s negligence was a necessary condition for the occurrence of the harm suffered by” the respondent (at [421]). The Council says that the judge’s s 5B analysis did not feature in the critical part of the judgment.

71. This is a criticism without substance. It may be accepted that a more methodical treatment might have seen the primary judge deal with things in a different order. But the course in fact adopted does not bespeak error. The discussion of s 5B at [453] to [462] is unexceptionable. The statement at [414] is cast in terms making it clear that s 5B was firmly in mind, even though specific reference to the provision occurred only later. In the same way, the statement at [421] obviously reflects awareness of and attention to s 5B.

72. The Council also takes issue with certain forms of expression employed by the primary judge. At [411], his Honour referred to the Council’s duty “to take reasonably practical steps to ensure that the boom gate once constructed would not operate as or become a hazard or trap to cyclists”. At [414], there was reference to failure “to take appropriate action to protect cyclists by … putting in place a system that ensured the gate would be opened at a specified time each day”. Language of “ensuring” appears also in other places identified by the Council including: a “system ensuring a timely opening of the boom gate” (at [392]); “ensure that the boom gate was opened at a specified fixed time” (at [394]); “ensure that the boom gate access was opened each day at a specified or appointed time” (at [406]).

73. We do not accept the Council’s contention that the various references to “ensuring” go beyond isolated infelicitous expression and indicate impermissible displacement of criteria of reasonableness. The judge nowhere said that the Council was under some form of absolute duty to “ensure” that some particular circumstance prevailed or that some particular step was taken. Viewed in their entirety, his observations make it clear that the question firmly in mind was, in terms of s 5B, as to precautions that a reasonable person in the Council’s position would have taken against the particular risk, that is, the risk of harm to a cyclist by collision with the closed boom gate. To the extent that language of “ensuring” is used, it serves merely to identify the nature and content of a particular reasonable precaution. In each of the contexts in which particular attention was drawn, the reference, properly understood, is to no more than a precaution involving a systematic approach to the matter of the opening and closing of the gate.

74. The Council also relies on the fact that the respondent was, at the relevant time, riding contrary to the clear instructions or warnings conveyed by the directional arrows on the surface of the roadway and the “No Exit” signs facing him as he proceeded towards the gate. Counsel referred to the passage in the judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) emphasising that the duty of a road authority is to exercise reasonable care for users exercising reasonable care for their own safety; and that the expectation that such persons will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case but also a specific element contained, as a matter of law, in the scope of the road authority’s duty of care. The contention is that, having regard to that specific element of the duty of care, disobedience to the directions conveyed by the arrows and signs meant that the respondent was not exercising reasonable care for his own safety and that that fact negated the Council’s duty of care.

75. That submission cannot be accepted. The references to a plaintiff exercising reasonable care for his or her own safety are concerned with measures to offset the risk of the harm to which the plaintiff actually succumbs. The arrows and signs were concerned with traffic movement. They indicated that traffic was to move only in the direction opposite to that which the respondent took. From the respondent’s perspective, therefore, the message conveyed by the arrows and signs was that he might encounter traffic coming towards him, that is, traffic entering the carpark from Fraters Avenue. The respondent was alive to that risk. He gave evidence that he checked that no traffic was approaching along Fraters Avenue. He thus took reasonable care for his own safety in relation to the matter with which the arrows and signs were concerned. But those traffic control measures had nothing to do with the risk of collision with the closed gate and there was no reason why a cyclist, riding as the respondent did, should pay attention to the traffic control measures in relation to any risk other than that presented by oncoming traffic.

76. In the same way, it cannot be said that the Council, by installing the arrows and signs, was evidencing some appreciation of the risk of injury through collision with the closed gate. The arrows and signs were in place both when the gate was closed and when it was open. The risk that a cyclist might collide with the closed gate was not something with which the arrows and signs were concerned.

Causation: s 5D of the Civil Liability Act

77. The Council contends that the respondent did not establish causation and that the primary judge was wrong to conclude otherwise. The grounds of appeal allege that the primary judge erred in “finding that some act or omission on the part of the Council caused Mr Simmons’ injury”.

78. The Council submits that the primary judge fell into error in three respects in his treatment of the questions raised by s 5D of the Civil Liability Act, that is, whether a breach of duty by the Council was a necessary condition of the harm to the respondent and whether it was appropriate for the scope of the Council’s liability to extend to the harm so caused.

79. The first matter to which the Council refers is the reaction or response to Mr Smith’s collision with the gate. That collision occurred on 23 January 2007. The respondent’s collision occurred on 11 April 2007. The Council says that if, contrary to its primary position, a non-negligent response to Mr Smith’s accident would have required some work to be carried out, it was necessary to decide what work would have been involved, how long it would have taken and whether it would have prevented the respondent’s subsequent collision with the gate. The Council says that the primary judge did not make factual findings on those issues.

80. That submission cannot be accepted. We have already referred to the file note of 9 February 2007 in the Council’s CRM, concerning the need for line markings and directional arrows to be placed on the roadway to funnel cyclists away from the boom gate. The primary judge referred to this at [162]. At [163] he noted that Mr Mable “conceded that two days after the accident he in fact was the person who put directional arrows on the road of Riverside Drive”.

81. Also, Mr Mable stated, in evidence quoted by the primary judge at [169], that a decision to erect a “chevron sign” (also known as a “zebra board”) on the boom gate after the respondent’s accident represented implementation in relation to that gate, of a policy that had earlier been adopted for other boom gates and would cause the treatment of the particular gate to be consistent with the established treatment of other like gates.

82. The measures just mentioned were implemented quickly and without burden. There is no apparent reason why they could not have been implemented very soon after Mr Smith’s collision.

83. The second matter to which the Council refers in relation to causation is the primary judge’s repeated finding that it was not appropriate that the boom gate be closed at the time of day at which the respondent came into collision with it. The Council says that there is an implicit suggestion that the gate should have been opened at some earlier time, but without identifying any particular time.

84. The respondent’s response, which we accept, is that the operative finding of the judge was not as to any particular time of opening but rather that the informal and non-specific arrangement with the Club did not produce in relation to the particular gate a system equivalent to that which had been established and was operating in relation to like boom gates at other locations – a system under which Council staff or contractors had the specific task of opening and closing gates at designated times and which involved a high degree of certainty and consistency.

85. The third matter addressed in the Council’s submissions on causation is whether remedial steps would have prevented the respondent’s accident. The Council says that the primary judge omitted to make findings on this critical matter.

86. There is no substance in these challenges to the primary judge’s findings on causation. The precautions concerning arrows suggesting that cyclists take the foreshore pathway and the installation of the “chevron sign” (or “zebra board”) on the gate were simple expedients, easily and quickly achievable. It may be that determined cyclists of the serious kind would pay little attention to the new arrows, given the unsuitability of the foreshore pathway for their style of cycling. The same cannot be said for the “chevron sign” or “zebra board”. A cyclist proceeding towards the vehicle entrance could scarcely fail to take notice of the gate if, instead of presenting as a triangular outline, it was seen as a black and white striped surface directly across the cyclist’s path. The same conclusion is warranted in relation to the alternative of an opening and closing regime attended to by Council staff or contractors at set times. Had opening at 5am been in the hands of such personnel, the likelihood of injury by collision at 6.15am would have been so reduced as to be practically negligible.

Conclusion on the Council’s negligence

87. As at 11 April 2007, the Council was aware that sporting or serious cyclists such as the respondent often rode in an easterly direction along Riverside Drive in the early morning and exited the carpark by the vehicular entrance at Fraters Avenue. It may be said, paraphrasing language of Gleeson CJ in Roads and Traffic Authority of NSW v Dederer (above) at [2], that the vehicular entrance was not designed to be a bicycle exit and that that was not its intended use, yet it was a use that was regularly made of the particular part of the roadway. The risk that, if the boom gate was closed across that part of the roadway, a cyclist seeking to exit by the vehicular entrance might be harmed by coming into contact with the closed gate must be taken to have been a not insignificant risk of which the Council knew or ought to have known.

88. Furthermore, there was a probability that potentially serious harm of that kind would occur in the absence of precautions to cause the gate to be opened daily in accordance with an established regime (as the gates of other waterfront carparks were). The burden of such precautions was not great, involving, as it did, no more than extension to the particular carpark of the opening regime geared to a fixed opening time that was already applicable to other nearby carparks (a flexible closing regime at night to accommodate late trading at the Club was another matter; and the delegation to the Club could sensibly have been left to cover closing only).

89. The Council’s failure to take such precautions in relation to daily opening of the gate was a necessary condition of the harm that the respondent suffered. It is appropriate for the scope of the Council’s liability to extend to the harm caused by the Council’s negligence.

90. It follows that, subject to the availability of defences, the conclusion of the primary judge with respect to negligence of the Council has not been shown to be erroneous. It is to the matter of defences that we now turn.

Section 43A of the Civil Liability Act – a defence?

91. Section 43A of the Civil Liability Act is in these terms:

“(1)    This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2)   A ‘special statutory power’ is a power:

(a)   that is conferred by or under a statute, and

(b)   that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3)    For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4)    In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.”

92. The Council argued at trial that when it installed the boom gate in 2004, it exercised a “special statutory power” as defined by s 43A(2).

93. There is no dispute that the Council had power to install the boom gate as it did. The question was whether, in doing so, it exercised, in terms of s 43A(2)(a), a power “conferred by or under a statute”.

94. The statute said by the Council to be the source of the relevant power is the Roads Act 1993 (NSW). It relies, in the alternative, on two provisions of that Act, being s 87(3) and s 115(2)(d).

95. Section 87 of the Roads Act empowers an “appropriate roads authority” to “carry out traffic control work” on roads of various kinds. There is no dispute the Council is such an authority. It is also not disputed that the Council was such an authority (see s 4 Roads Act) relevantly for that part of Riverside Drive (being an “unclassified road”: s 87(3)). The Dictionary to the Roads Act contains a definition as follows:

“‘carry out traffic control work’ includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility.”

96. The expression “traffic control facility”, as used in the Roads Act, is given by the dictionary the same meaning as it has in Part 6 of the Transport Administration Act 1988 (NSW). Section 45E within Part 6 of the latter Act contains the following definition:

“‘traffic control facility’ means:

(a)    traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or

(b)    any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under:

(i)    this Act or the regulations, or

(ii)    any other Act, regulation or by-law prescribed for the purposes of this subparagraph,

(c)    any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards, or

(d)    any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or

(e)    any other thing prescribed as a traffic control facility by the regulations.”

97. The primary judge held (at [505]) that the boom gate was not a “traffic control facility”. This was because, as his Honour put it, the gate was “not directed at the function referred to in the Act”, being to “promote safe or orderly traffic movement on roads or road related areas”. The function of the gate, his Honour said, was “to prevent any movement after dark”.

98. The Council says that the primary judge’s construction of the legislation was incorrect because it failed to give weight to the words “in connection with” in the definition of “carry out traffic control work”. The Council also argues that it was wrong of his Honour to conclude that the gate’s function and the purpose of its installation were not the promotion of safe or orderly traffic movement.

99. Having regard to the plain words of the statutory provisions, these arguments are unsustainable.

100. The obvious purpose of the boom gate was to preclude vehicular entry to the carpark after the gate had been locked at night. Measures to ensure that vehicles did not enter the carpark at night were the product of the Council’s response to residents’ concerns about the behaviour of persons driving vehicles on the carpark in a noisy and antisocial way late at night and in the early hours of the morning.

101. The word “other” at the start of paragraph (c) of the definition of “traffic control facility” shows that an essential characteristic of not only the kinds of “sign”, “marking”, “structure” and “device” mentioned in paragraph (c) itself, but also the several items mentioned in the preceding paragraphs (a) and (b), is that they “promote safe or orderly traffic movement on roads”. The preoccupation is with “movement on roads” and the promotion of safety or orderliness in “movement on roads”. Things such as guideposts indicating the edges of a road (Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355; (2008) 51 MVR 549), “Reduce Speed” and “Water On Road” signs (Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115; (2009) 54 MVR 214) and traffic roundabouts (Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840; (2003) 58 NSWLR 535) are within the definition. Each is designed to influence the way in which a driver manages the movement of his or her vehicle and to contribute to safe or orderly movement.

102. A boom gate across a road at a railway crossing promotes safe or orderly movement of vehicles by producing a temporary halt until the train has passed and the danger it presents to traffic crossing the railway line is no longer operative. The boom gate in the present case served a quite different purpose. It prevented access to a particular area during several hours of darkness each night but did not do so for any purpose of safe or orderly movement of a vehicle the progress of which was thereby inhibited. It is fanciful to think that the progress of a vehicle that came upon the closed gate at, say, midnight was made safer or more orderly because the driver had to wait for five or six hours until the opening of the gate in the morning allowed the vehicle to move forward. The particular boom gate was no more concerned with the safe or orderly movement of vehicles than is a gate that prevents indiscriminate entry to the driveway of a private home.

103. The alternative means of access to s 43A of the Civil Liability Act for which the Council contends is based on s 115(2)(d) of the Roads Act and the proposition that installation of the boom gate was an exercise of a “special statutory power” derived from that provision.

104. Section 115(2) of the Roads Act allows a council, being a “road authority” other than the RTA, to exercise the power specified in s 115(1) (that is, “the power to regulate traffic on a public road” by certain means, including “barriers”), but only for limited purposes, including, in s 115(2)(d):

“the purpose of protecting members of the public from any hazards on the public road”.

105. The primary judge held as follows (at [515] – [516]):

“The purpose for which the boom gate was constructed is reflected in Council records and in other documents created in 2004. It was to stop the ‘hoons’ from creating disturbance and noise etc at night. Other provisions forming part of the Roads Act, such as s 116(1)(a), employ the phrase ‘for the purpose of regulating traffic’ unlike s 115(2)(a). ‘Regulate traffic’ as noted above, means, inter alia, to restrict or prohibit traffic. The phrase ‘hazards on’ a public road has nothing to do with restricting traffic on or along a public road.

The power to restrict or prevent ‘traffic’ meaning ‘vehicular traffic’, is a power to ‘regulate traffic’ in accordance with the Dictionary definition. The power under s 115(2)(d) to protect members of the public from any hazards on a public road is not a power to ‘regulate traffic’ (ie, ‘restrict or prohibit the passage of ... persons, vehicles etc on a road’). It is narrower than that. It is only for the purpose stated in s 115(2)(d).”

106. The relevant concept of “hazard” is concerned with some feature of the road’s positioning, topography or physical state that is, for the time being, a source of potential danger to persons using the road as a road, being a feature that bears to the road itself a relationship of the kind denoted by the preposition “on”. Examples referred to in Bryden as Executor of Estate of Anthony (decd) v Minister for Lands [2011] NSWSC 945; (2011) 184 LGERA 333 are wombat holes, creek crossings and culverts. An abandoned vehicle, oil spill or fallen overhead cable on the surface would be another example. In the present case, the boom gate’s purpose was to prevent entry at night by persons who might drive vehicles in a noisy and antisocial manner destructive of the peace of the neighbourhood and offensive to nearby residents. This did not involve protection of anyone from “hazards on” Riverside Drive. Noisy and antisocial behaviour is not, in the relevant sense, a “hazard”.

107. The primary judge was plainly correct in deciding that the boom gate was not, on either of the bases postulated, within the statutory definition of “traffic control facility” and that, for that reason, s 43A of the Civil Liability Act was not engaged.

108. We would add that one of the reasons the primary judge held (at [504(2)]) that s 87 (and we would infer, s 115) of the Roads Act had no operation or application, was because the respondent did not “plead or allege the exercise or failure to exercise” statutory power, “‘special’ or otherwise”. His Honour appears to have applied Campbell JA’s observation in Roads and Traffic Authority of NSW v Refrigerated Roadways [2009] NSWCA 263; (2009) 77 NSWLR 360 (at [374]) to the effect that where the plaintiff puts its case for the liability of the defendant without mentioning any special statutory power of the RTA, his Honour did “not see how that alleged liability could be ‘based on’ the RTA’s exercise of, or failure to exercise, any special statutory power” in this respect. These remarks were obiter as Basten JA remarked in Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 203 LGERA 352 (“Curtis”) (at [241]).

109. As Basten JA (with whom Bathurst CJ agreed in this respect) said (Curtis at [244]), the question whether s 43A is engaged turns on a consideration of the acts or omissions pleaded in support of the cause of action, rather than express identification of the “statutory source of any power which might be involved”. Once the acts or omissions are identified, “it will then be necessary to inquire whether it is one ‘involving an exercise of, or failure to exercise, a special statutory power’”. Likewise, it is necessary that “a defendant must plead, not the terms of the provision as such, but the facts giving rise to its engagement.”

110. The appeal should be dismissed with costs.

The cross-appeal

111. The primary judge dismissed the respondent’s negligence action against the Club. The case pursued by the respondent was, in essence, that the Club, under its informal arrangement with the Council, was entrusted with and assumed responsibility for opening and closing the boom gate; that the Club thereby incurred a duty – apparently a duty of care owed to some class of persons that included the respondent – to open the gate every morning at “an appropriate opening time” ([556], [562]).

112. The primary judge held (at [577]) that, on the evidence, any relevant duty owed by the Club could only be “a narrow one”. This was because only limited functions were allocated by the Council to the Club; there was a lack of precise or specific instructions by the Council to the Club concerning opening hours for the boom gate; the Club had a broad discretion as to the performance of the function of opening and closing the gate; and the Council retained control over all aspects of the gate and its operation.

113. The primary judge continued (at [578]):

“Secondly, there was an absence of any formal contractual or other legal relationship between the Council and the Club beyond the informal relationship of principal/agent for the performance of the limited function of opening and closing the gate at unspecified times. That relationship gave rise to a limited responsibility being placed on the Club, commensurate only with the task allocated to it.”

114. His Honour went on to identify a number of matters on which he said there was no evidence, including whether the Club undertook to the Council to allocate the opening and closing function to a particular person (whether or not a Club employee); the precise nature of the relationship between the Club and its cleaner; any instructions by the Club or the Council to the cleaner; that the Club had any awareness of visibility problems such as a “visual trap”; whether the Club had any responsibility to investigate the circumstances of Mr Smith’s collision.

115. The judge’s conclusion (at [591]) was that the Club, “as agent of the Council”, assumed a “limited physical task” (that is, opening and closing the gate at unspecified times), “devoid of any other specified or identifiable responsibilities”. The Club’s duty, therefore, was to exercise reasonable care when actually opening and closing the gate.

116. The respondent challenges the primary judge’s findings concerning the duty of care owed by the Club. He says that the condition of the land that caused his injury was created by a positive act of the Club, namely, the closing of the gate on the night before his collision. It is emphasised that the Club had control over the opening and closing of the gate and had assumed responsibility for the task in furtherance of its commercial interest in providing parking for its visitors and patrons. That being so, it is submitted, the Club should have been found to be an occupier of the carpark or to have been in a position akin to that of an occupier.

117. The arrangement between the Council and the Club has aptly been described as informal. The primary judge canvassed relevant evidence at [116] and following. A plan of the carpark prepared at an early stage of the enclosure proposed carried a notation:

“proposed entrance gate (closed 11.00pm til [sic] 5.00am) & at discretion of St George Sailing Club”.

118. Mr Lay, a council officer to whom reference has already been made, explained that the reference to the “discretion of St George Sailing Club” was intended to cover situations where an event at the Club extended beyond 11pm or slackness of trade caused the Club to close before 11pm. The following passage in cross-examination of Mr Lay (quoted by the primary judge at [120]) is relevant:

“Q. But there was no flexibility about the morning opening time, was there, that was discussed or intended?

A. The opening of the gates depends on the club as well. Sometimes they can come early to open the gate in order to do maintenance before the club opened again the following day, so there’s no firm commitment of the time.

Q. But, you see, the effect of the discussion you’d had with Sergeant Cooper at the police was that the gate, for traffic reasons, should be opened at about 5.00am, wasn’t it?

A. No. The police wanted the traffic to be controlled at the carpark. That's the main reason. The operation hours of the gate ‑ the council decided to leave it to the club.

Q. But the police wanted the road to be accessible to traffic by 5.00am, didn't they?

A. No.

Q. Well why did you put ‘5.00am’ on the form then?

A. You had to pick a time.

Q. But I thought you told us you'd had picked a time as a result of the discussions you had with police?

A. Yes. Sometime in the discussions with the police, the police might say ‘look, I want 6 o’clock or 7 o’clock. You just nominate a time to the club, and the club’ ‑ council resolved to leave the operation, opening of the gate and closing of the gate, to the club.”

119. Mr Lay also said that the references to 5am and 11pm resulted from a discussion he had with police.

120. The primary judge referred to other details of the process by which the boom gate proposal developed and summarised the result as follows (at [135]):

“Ultimately, the Council proceeded upon the basis that the daily control of the boom gate would be left in the hands of the Club on the basis that the Club had flexibility (‘at the discretion of St George Sailing Club’) on the opening and closing of the gate. The resolution of the Council to erect the boom gate was made on 12 May 2004. It included the proposal that the boom gate be ‘closed 11.00pm until 5.00am and at the discretion of St George Sailing Club’ (Exhibit A at 364).”

121. On 28 June 2004, Mr Lay wrote to the secretary of the Club asking that he or another relevant Club officer sign an enclosed document as follows:

“We ... would like to agree and undertake to operate the gate and close it in the carpark in front of the St George Sailing Club at 10.00pm and open at 5.00am every day. The times can be changed at your discretion. (Exhibit A at 372)”

122. The primary judge found that no such document was signed.

123. The primary judge’s conclusion on the matter was set out at [146] and is set out at [57] above.

124. The Club submits that there was no finding (and no basis for a finding) that the Club agreed to open the gate at 5am each day, subject to a discretion to do otherwise.

125. As submissions made by the Club emphasise, a duty of care can exist only if rationally related to the functions, powers and responsibilities of the person said to owe the duty: Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [56]. The functions, powers and responsibilities of the Club in relation to the gate were to open it each morning and to close it each night, with 5am and 11pm specified as indicative times. They were indicative because, under the arrangement between the Council and the Club, there was an overriding discretion of the Club as to timing.

126. It was, in our view, open to the primary judge to proceed on the basis that the Council had left to the Club the question of when the gate should be opened each morning and closed each night on the footing that the gate regulated access to the carpark by vehicles, the Club’s premises were the only premises directly served by the carpark and the question of precise opening and closing was very much a matter for the Club to decide, having regard to its own requirements.

127. It is noteworthy that there was no evidence that the Club had knowledge of the propensity of early morning cyclists to use the carpark as a thoroughfare. There were references in the evidence to the Club’s cleaner having been aware of at least Mr Unicomb’s accident, but nothing to show that the cleaner occupied a position suggesting that he or she might reasonably have been expected to be concerned about any responsibility of the Club in relation to such events or to report them to someone in authority within the Club.

128. The primary judge correctly decided that the risk to which the respondent succumbed was not one of which the Club knew or ought to have known or in respect of which a reasonable person in the Club’s position would have taken precautions. We would dismiss the cross-appeal.

Contributory negligence

129. The primary judge assessed contributory negligence of the respondent at 20 per cent.

130. The Council says that the degree of responsibility of the respondent was much greater than that indicated by an 80/20 apportionment, while the respondent says that there should have been a finding that he was not negligent at all.

131. Key to this, as submissions recognise, is the primary judge’s finding (at [282]) as follows:

“The plaintiff's evidence that he could not, and did not, detect that the boom gate on the day of his accident was in a closed position until it was too late to avoid it is significant if his evidence that he was looking ahead as he approached the boom gate is to be accepted. Having closely examined his evidence I accept his account as both a truthful and reliable one. This, I note, is subject to one matter that I will address in relation to contributory negligence.”

132. The Council concedes that, if the finding that the respondent “could not” see the gate is wrong, the basis for the finding of contributory negligence does not exist. However, as we have stated at [32] above, we are of the opinion that the primary judge’s “could not see” finding was correct. That being so, the Council seeks to rely on the respondent’s non-compliance with the arrows and “No Exit” signs. Having regard to the matters referred to at [75] – [76] above, that non-compliance does not assist the Council in establishing contributory negligence.

133. The respondent’s contention is that, once it is accepted that he was keeping a proper lookout, the only basis for the contributory negligence finding is that he did not react quickly enough. The respondent further says that a finding that he did not react quickly enough could only be drawn from the Council’s contention that he should have stopped, swerved or slowed down; and that, in turn, could have as its basis only the fact that Mr Unicomb, although he collided with the gate, did so at low speed only and did not suffer injury. The respondent says that the finding that another cyclist had minimised impact with the gate did not justify a conclusion that it was negligent for him to come into more forceful contact with it.

134. There is merit in that submission. The primary judge found that the respondent was keeping a proper lookout, that he did not see the closed gate, that the gate constituted a “perceptual trap” in the sense to which reference has already been made, and that there was no suggestion that he had been travelling at excessive speed. In those circumstances, the respondent failed to see the gate in time despite the fact that he was exercising reasonable care for his own safety. In those circumstances, there was simply no scope for any finding of contributory negligence.

Orders

135. We make the following orders:

1. Appeal dismissed with costs;

2. Cross-appeal allowed in part;

3. Set aside the judgment of the court below insofar as it found the cross-appellant guilty of contributory negligence;

4. Verdict and judgment for the cross-appellant for $1,160,000 plus interest from 27 September 2013;

5. Order the second cross-respondent to pay the costs of the cross-appeal insofar as it concerned the issue of contributory negligence;

6. Otherwise dismiss the cross-appeal with costs.

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Decision last updated: 17 April 2015