Rockdale City Council v Simmons

The appeal concerned a negligence claim brought by Mr Simmons against Rockdale City Council following serious injuries sustained when his bicycle collided with a boom gate erected by the Council. The boom gate was installed to prevent hooning motorists from accessing a carpark at night, with a local club responsible for its morning opening. Mr Simmons alleged the closed boom gate created a "perceptual trap" for cyclists, and that the Council had been notified of previous incidents involving cyclists colliding with the gate. The appeal was heard by Beazley P, McColl and Barrett JJA of the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge had correctly applied the provisions of the *Civil Liability Act 2002* (NSW), specifically sections 5B and 5D, in finding the Council liable. This involved considering the standard of reasonableness expected of the Council in its management of the boom gate and whether its breach of duty caused Mr Simmons' injuries. Additionally, the Court had to consider whether the construction of the boom gate constituted the exercise of a "special statutory power" under section 43A of the *Civil Liability Act 2002* (NSW) and section 87 of the *Roads Act 1993* (NSW), and whether the boom gate was a "traffic control facility" for the purposes of section 115(2) of the *Roads Act 1993* (NSW). The issue of contributory negligence on the part of Mr Simmons was also before the Court.

The Court of Appeal reasoned that the Council had failed to take reasonable precautions to prevent foreseeable harm to cyclists, particularly in light of previous incidents and the "perceptual trap" created by the boom gate. It was held that the Council had not applied too exacting a standard of reasonableness by referring to the Council "ensuring" various matters, as the duty extended to taking reasonable steps to mitigate the threat of harm. The Court found that the Council's breach of duty caused Mr Simmons' injuries, and that he had not been contributorily negligent. The Court also determined that the Council's actions did not fall within the ambit of section 43A of the *Civil Liability Act 2002* (NSW) as it did not involve the exercise of a special statutory power in the relevant sense.

The appeal was dismissed with costs. The cross-appeal was allowed in part, with the judgment below set aside insofar as it found Mr Simmons guilty of contributory negligence. A verdict and judgment for Mr Simmons was entered for $1,160,000 plus interest, with orders regarding the costs of the cross-appeal concerning contributory negligence.