Shellharbour City Council v Johnson

[2006] NSWCA 67

New South Wales

Court of Appeal

CITATION:	Shellharbour City Council v Johnson [2006] NSWCA 67
HEARING DATE(S):	14 February 2006
JUDGMENT DATE:	6 April 2006
JUDGMENT OF:	Beazley JA at [1]; Tobias JA at [2]; Hunt AJA at [3]
DECISION:	(1) Leave to appeal is granted.; (2) The appeal is dismissed.; (3) The appellant is to pay the respondent’s costs.
CATCHWORDS:	Cyclists invited by council to use laneway to gain access to cycleway — blind spot at intersection of laneway and cycleway — fence to right of laneway and tree alongside cycleway as it curves to right — difficult for persons in laneway and cyclists on cycleway to see each other until reaching the curve itself — risk of collision obvious — intersection inherently dangerous and “trap” — duty of care owed — whether duty owed to person who fails to take reasonable care for his or her own safety — risk of collision could not be avoided if council’s invitation to use area is accepted — council not relieved of duty to take reasonable measures to guard against risk — appeal against liability dismissed.
CASES CITED:	Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Clarke v Coleambally Ski Club [2004] NSWCA 376 Commissioner for Railways v Anderson (1961) 105 CLR 42 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Lake Macquarie City Council v Holt [2004] NSWCA 305 Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 Newcastle City Council v McShane [2004] NSWCA 425 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Swain v Waverley Municipal Council (2005) 220 CLR 517 Temora Shire Council v Stein [2004] NSWCA 236 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Vairy v Wyong Shire Council (2005) 221 ALR 711 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
PARTIES:	Shellharbour City Council – Claimant Aaron Johnson – Opponent
FILE NUMBER(S):	CA 40238/05
COUNSEL:	P Garling SC – Claimant SG Campbell SC – Opponent
SOLICITORS:	Leitch Hasson Dent – Claimant DGB Lawyers – Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 142/01
LOWER COURT JUDICIAL OFFICER:	Quirk DCJ

1 BEAZLEY JA: I agree with Hunt AJA.

2 TOBIAS JA: I agree with Hunt AJA.

3 HUNT AJA: The opponent, Aaron Johnson, as plaintiff sued the claimant, Shellharbour City Council, as defendant in the District Court, claiming damages for personal injuries sustained by him on 9 August 1995 whilst he was riding his bicycle on to a cycleway in Albion Park when he collided with another cyclist. The plaintiff was seventeen years old at the time of the collision.

4 The trial judge made the following findings as to the circumstances of the collision. The cycleway is situated in the Con O’Keefe Oval, which is near the Albion Park High School. The cycleway is part of the oval…