Simmons v Rockdale City Council - [2013] NSWSC 1431

Supreme Court

New South Wales

Medium Neutral Citation: Simmons v Rockdale City Council [2013] NSWSC 1431
Hearing dates: 24-28 September 2012; 12 October 2012; 22 November 2012
Decision date: 27 September 2013
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) That a verdict and judgment be entered in favour of the plaintiff against the first defendant, Rockdale City Council in the amount of $928,000.
(2) That judgment be entered in favour of the second defendant, St George Sailing Club.
(3) I grant leave to the parties to make application in respect of costs of the proceedings and other ancillary orders.

Catchwords: TORTS - negligence - duty of care of local government authority to sporting cyclist exiting from a cycleway - early morning collision with closed boom gate customarily placed in the open position by day under an informal arrangement between the council and a neighbouring sailing club - boom gate constructed to exclude/prevent anti-social driving of vehicles in carpark - arrangement between Council and Club for Club to close and open the boom gate - the arrangement did not provide for a fixed timetable specifying mandatory opening times - overall discretion as to closing/opening times conferred upon the Club under its arrangement with Council - duty of care - duty in the Council in respect of cyclists as known users of the cycleway - BREACH OF DUTY - breach of duty by the Council - high level of cycle use known to Council and use of boom gate entrance as an exit - previous accident - failure to investigate and identify visual perception problems when gate closed - failure to modify gate to enhance its visibility as occurred following the accident - failure to re route the cycleway exit as undertaken subsequent to accident - failures by Council causally contributed to the plaintiff's cycling accident - Club not in breach of its duty of care having regard to the limited scope of its duty and the discretionary arrangement it had with the Council - CAUSATION - causal nexus between Council arrangement with the Club and failure to investigate and adopt available preventative measures which measures, if adopted, were likely to have prevented the plaintiff's accident - CIVIL LIABILITY ACT 2002 - ss 5F and 5G "obvious risk" - no obvious risk from cycling, s 5P - taking "precautions against a risk of harm" - a matter to be considered objectively by reference to the circumstances - factors in s 5B(2) did not outweigh those in s 5B(1); ss 5K and 57 - "Dangerous recreational activity" - no evidence of plaintiff's cycling constituting such a dangerous activity - s 42 - Council failed to adduce evidence to establish applicability of s 42(a) and (b) - Section 43A: "special statutory powers" - whether Council had exercised or failed to exercise a "special statutory power" under provisions of the Roads Act 1993 - sections 87, 114 and 115 of the Act - the failure to open the boom gate, or leaving the boom gate in the closed position was not the exercise or failure to exercise a special statutory power within s 43A
Legislation Cited: Civil Liability Act 2002
Roads Act 1993
Transport Administration Act 1988
Cases Cited: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20
Bevillesta t/as Top Ryde Shopping Centre v Liberty International Insurance Company [2009] NSWCA 16
Brodie v Singleton Shire Council (2001) 206 CLR 512
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
Caparo Industries Plc v Dickman [1990] 2 AC 605
Carey v Lake Macquarie City Council [2007] NSWCA 4
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Tort Reports 81-815
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Fallas v Mourlas [2006] NSWCA 32
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kuhl v Zurich Financial Services [2011] 243 CLR 361
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo (1998) 192 CLR 431
Romeo v Conservation Commission (NT) [1998] HCA 5
Sullivan v Moody (2001) 207 CLR 562
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Vairy v Wyong Shire Council [2005] HCA 62 at [220]; (2005) 223 CLR 422
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Wyong Shire Council v Shirt [1980] HCA 12
Category: Principal judgment
Parties: Alex Simmons (Plaintiff)
Rockdale City Council (First Defendant)
St George Sailing Club (Second Defendant)
Representation: Counsel:
D Campbell SC; J Sheller (Plaintiff)
G Watson SC; N Chen (First Defendant)
P Morris SC (Second Defendant)
Solicitors:
G Walsh & Co (Plaintiff)
TressCox Lawyers (First Defendant)
Moray & Agnew (Second Defendant)

File Number(s): 2008/289194

Judgment

PART A

Introduction

These proceedings were commenced by the plaintiff in relation to an accident that occurred at about 6.15am on 11 April 2007 whilst he was riding his bicycle through a carpark adjacent to the St George Sailing Club ("the Club"). On that occasion he struck a boom gate that had been closed across a motor vehicle entrance to the carpark.

The plaintiff was very seriously injured. His injuries ultimately led to a below knee amputation of the left leg.

The parties have by an Agreement on quantum filed on 29 May 2012 agreed upon the quantum of damages and interest in the amount of $1,160,000 subject to findings in relation to the liability of the defendants and any contributory negligence of the plaintiff.

The Proceedings

The proceedings were initially commenced by Statement of Claim against Rockdale City Council ("the Council") filed on 6 February 2008. An Amended Statement of Claim was filed on 23 March 2011 whereby St George Sailing Club Ltd was joined as second defendant to the proceedings.

On 27 September 2012 leave was granted to the plaintiff to file a Further Amended Statement of Claim (T 245). On 28 September 2012, having had difficulties in the Registry, the plaintiff handed up a signed copy of the Further Amended Statement of Claim (T 303).

The defendants filed Defences and Amended Defences in response to the plaintiff's proceedings. Each denied liability. The Council also raised specific defences to which reference will be made later in this judgment.

Cross Claims

A cross claim was filed by the Council against the Club in which relief was claimed by way of contribution and/or indemnity in respect of any judgment recovered by the plaintiff.

On the same date, 11 August 2011, a second cross claim was filed on behalf of the Club in which contribution and/or indemnity was claimed from the Council in respect of any damages recovered by the plaintiff.

There was no reference in the proceedings, and in particular no reference in the submissions of the parties, to either cross claim.

I will refer to these cross claims later in this judgment.

The Evidence

The evidence in the plaintiff's case consisted of written evidentiary statements and oral evidence by the following persons:

(I) Mr Alex Simmons (the plaintiff): Statement dated 23 July 2008 (Court Book 32).

(ii) Mr Daniel Smith: Statement dated 27 October 2007 (Court Book 42)

(iii) Mr John Crouchley: Statement dated 29 August 2012 (Court Book 66)

(iv) Mr Anthony Gerard Unicomb: Statement dated 14 September 2012 (Court Book 71).

The Council relied upon witness statements numbered 11-26 in the Index to the Court Book.

Copies of all witness statements and copies of reports of expert witnesses were included within the Court Book, Exhibit A.

The following statements were tendered and admitted without the authors of the statement being required for cross-examination:

Exhibit 1: Statement of Mr Ken Johnson dated 29 June 2010.

Exhibit 2: Statement of William Leonard Aston dated 30 June 2010.

Exhibit 3: Statement of Jan Patricia Foster dated 30 June 2010.

Exhibit 4: Statement of Carol Deering dated 30 June 2010.

Exhibit 5: Statement of Rita McNay dated 4 August 2010.

Exhibit 6: Statement of Donald Colin Tinworth dated 19 October 2010.

Exhibit 7: Statement of Michael Goodyer dated 19 October 2010.

Exhibit 8: Statement of Hans Sarlemyn dated 19 October 2010.

Exhibit 9: Affidavit of Shane Kavanagh dated 20 October 2010 (admitted as a statement).

The plaintiff tendered a statement prepared on behalf of the first defendant, being the statement of Mr John Tsamboumiaris dated 10 September 2008 - Exhibit B.

Mr Colin Mable and Mr Pintara Lay, the principal lay witnesses for the Council, (witness statements No. 25 and 26 in the Index to the Court Book) were cross-examined on their statements.

Expert Reports

The following reports were tendered on behalf of the plaintiff:

(i) The report of John Jamieson dated 13 February 2009 - Exhibit C

(ii) The supplementary report of Mr Jamieson dated 12 October 2009 - Exhibit D.

(iii) The report of Professor Wenderoth dated 22 March 2010 - Exhibit E.

The Council tendered the following reports:

(i) A report of a conclave of visual experts dated 24 July 2010 - Exhibit 10.

(ii) The report of Professor Stephen Dain dated 26 May 2010 was tendered by the first defendant (admitted on a provisional basis) - Exhibit 11.

(iii) The report from the conclave of traffic accident experts dated 24 August 2012 - Exhibit 12.

(iv) The report of Alan Joy dated 29 July 2009 - Exhibit 13.

(v) The supplementary report of Alan Joy dated 9 September 2010 - Exhibit 14.

(vi) The report of Warwick Kiernan dated 12 October 2010 - Exhibit 15.

Mr Jamieson and Mr Joy were both called to give concurrent evidence (T 171).

Mr Jamieson is a consulting forensic engineer who practices under the name Jamieson Foley and Associates Pty Ltd. He was asked in 2007 to make a road safety audit on behalf of the defendant council. Following that audit he prepared a report dated 4 July 2007. A copy is behind Tab 31 of Exhibit A at 702.

Extracts of his audit report dated 4 July 2007 are to be found at Appendix D to his report (13 February 2009), prepared for the present proceedings.

On instructions from the plaintiff's solicitors, Mr Jamieson prepared a supplementary report dated 12 October 2009 (Exhibit A at 803).

Mr Jamieson prepared a further report dated 1 November 2010 in response to a letter from the plaintiff's solicitors dated 25 October 2010 (Exhibit A at 881).

Mr Alan Joy is a road safety and traffic engineering consultant. He carried on practice under the name of Joy Consulting Group. He was asked by the solicitors for the Council to prepare his first report dated 29 July 2009 (Exhibit 13). He subsequently prepared a further report dated 9 September 2010 (Exhibit 14).

I attended at the site of the accident on 25 September 2012 for the purpose of undertaking a view/inspection of the area with the legal representatives of the parties: T 89-92.

PART B

The Plaintiff's Background and Cycling Details

The plaintiff, Mr Simmons, was born on 26 July 1964. He was accordingly 43 years of age as at the date of the accident. He graduated from high school in 1981 and subsequently graduated from the Australian National University, ACT with a Bachelor of Science. Following graduation he took up a number of positions with the Commonwealth Government including Austrade and the Department of Industry. He later took up employment in the private sector and has worked as a business analyser with a communications company.

Over many years before the accident, in particular since 1997, Mr Simmons had been a competitive cyclist. He described himself as a very keen cyclist. He said that he had participated in a number of cycling championships with success. These included:

National Masters Track Championships;

Bronze medal in National Track Championships Points Race;

NSW Champion Teams Pursuit;

Bronze medal Statement Criterium;

Bronze medal in Teams Time Trial and

Various medals in Teams Pursuit.

Two weeks prior to the accident he had completed the National Masters Track Cycling Championships in Melbourne. He said that as well as a cycling participant he was also a professional cycling coach (T 47). He ran cycle safety sessions for new members of the Sydney Cycling Club of which he was a former president.

The Accident Site

(a) Overview

The accident site was located on Riverside Drive at Sandringham, adjacent to Cook Park and the Club. Riverside Drive is a local street which follows the shoreline of Georges River at the southern end of the Sandringham/Sans Souci peninsula. The club is situated on foreshore land to the south of Riverside Drive.

On the day of the accident the plaintiff was on an early morning training ride. In the lead-up to the accident he was riding his bicycle in a generally eastbound direction along Riverside Drive. The final trafficable section of Riverside Drive extends past the front of the Club and the carpark. It was described by some of the witnesses in evidence as being, in effect, an extension of a cycle route. It ultimately connects to another road, Fraters Avenue.

The carpark adjacent to the Club was enclosed by the Council by the construction of a boom gate and other structures in 2004 in order to restrict access following problems that had arisen of anti-social driver behaviour (referred to as "hooning") in the carpark at night.

(b) Location Detail

The road network diagram and crash location is identified in Figure 1 in Mr Jamieson's report, 13 February 2009, Exhibit A at 668. The aerial photo of the site showing the crash location is depicted in Figure 3 to Mr Jamieson's report in Exhibit A at 670. A photograph of the Boom Gate is depicted in a number of photographs in evidence including Figures 5 and 6 of Mr Jamieson's report in Exhibit A at 672-673.

As at 11 April 2007, Riverside Drive was a public road. It flows in a north-easterly direction from Taren Point Bridge and connects, as I have indicated, with Fraters Avenue, San Souci. Before the intersection at Fraters Avenue, Riverside Drive passes through the general area where the Club is positioned to the south with the carpark positioned to the north of it.

A tubular steel gate (being the "boom gate" with which the plaintiff collided) is located at the intersection of Riverside Drive and Fraters Avenue. It consists of a horizontal cylindrical rail about 100 mm in diameter and about 7.5m long. The diagonal and two vertical struts are about 45 mm in diameter.

The boom gate was painted white. It was hinged at a steel post on the eastern side of the intersection of Riverside Drive and Fraters Avenue and was capable of being locked to a steel post on the western side. It had a length of red and white self-adhesive reflective material on the horizontal cylindrical rail. A diagonal striped marker board was added after the accident.

Riverside Drive to the south-west of the intersection with Fraters Avenue was a black bitumen road and was generally straight. It was designated one-way westbound for about 135m in front of the Club and the carpark. There were two traffic calming "speed bumps" located on both sides of the entrance to the Club. There were directional arrows painted on the roadway's surface. At its furthermost western section, Riverside Drive was two-way for approximately 35m. Riverside Drive joins what was described in evidence as a bicycle path or cycleway which runs down from the eastern side of the Taren Point Bridge.

A pedestrian crossing over which the plaintiff passed extended across the road between the front entrance of the Club and the carpark.

The distance from the boom gate, in its closed position, to the speed hump on the south-western side was about 35m. The distance from this speed hump to the pedestrian crossing was about 29m and the distance from this point to the second speed hump was a further 17m.

The evidence established that there was daily regular usage by cyclists of the route or cycleway starting from the eastern side of Taren Point Bridge, from early in the morning.

For a period up to the year 2004 neighbours complained of antisocial/reckless driving taking place at night in the carpark area. The Council, in consultation with the State Member for Rockdale, the St George Local Area Command, members of the public and the Club decided to modify the carpark so as to restrict vehicular access to and from the carpark at night as a means of dealing with such inappropriate use of the carpark. Those works included the installation of the boom gate by the Council in 2004.

The Council and the Club communicated about an arrangement for the daily closing and opening of the boom gate. There was evidence (discussed below) that police had proposed daily opening of the boom gate at 5.00am. Ultimately, the Council agreed, as noted on plans and other documents, that the Club should have a discretion as to closing and opening hours. This aspect is considered in greater detail later in this judgment.

The Cycle Track: A Popular Route

The above factual matters arise in the overall context of Riverside Drive having been used both before and after 2004 as part of a route used by the plaintiff and many other cyclists, many of whom, were referred to as "sporting" or "serious" cyclists, as a training route. The plaintiff was one such person.

Mr John Crouchley, who was 69 years of age at the date of his statement, (23 August 2012), and who would be categorised as a "serious" cyclist, said in evidence that the route was often used by recreational cyclists. He had been a competitive cyclist and had been using the route for some 25 years several days a week.

Mr Unicomb also gave evidence of his regular use of the route. He was 49 years of age at the date of his statement (14 September 2012), an Inspector of Police by occupation, and he had been involved in competitive racing at a very high level since the 1980s. In 1990 he attained Australian representation at the Auckland Commonwealth Games in the sport of triathlon.

Mr Unicomb said that he had used the route, including the Riverside Drive extension of it, as part of a network of cycle routes on more than a thousand occasions. He said the route in his experience, had always been regularly used by cyclists.

Mr Crouchley's evidence was that in his experience the boom gate had always been open and he in fact had only noticed the boom gate after the plaintiff's accident. He could not specifically say that he had noticed it before that time. I note at this point that this evidence is consistent with the evidence given by the plaintiff that since the gate had always been in the open position he had assumed it to have been a fence-like structure. The detail of his evidence in that respect will be discussed below. Mr Unicomb's evidence was that following the modifications to the carpark area in 2004, apart from a few occasions, referred to below, the boom gate, in his experience, had otherwise invariably been open. He said that in the course of his work duties as a police officer he had only seen it closed at night and in early morning hours of darkness.

One of the training routes which the plaintiff habitually used led from his home in a southerly direction to Taren Point and then southwards over the Taren Point Bridge, turning around via Sylvania Waters, and returning back towards the City, in a northerly direction, over the Taren Point Bridge, following what was a dual cyclist/pedestrian way marked as such ("the dual cyclist/pedestrian footpath") on the eastern side of the Bridge.

This dual cyclist/pedestrian footpath led off from the north-eastern edge of the Bridge in a clockwise arc downwards into the carpark area of the Club in Sandringham. There was a dual cyclist/pedestrian footpath that followed the water foreshore. This pathway permitted both bicycle and pedestrian traffic in both directions. There were markings to this effect on the footpath surface.

The carpark roadway was wide enough to permit bicycle traffic in both directions as well as the passage of vehicles in a westerly direction through the carpark entrance. After passing through the entrance, motorists followed painted directional arrows on the carpark road surface to enter the carpark and proceed to park in marked car parking spaces: Report of Professor Wenderoth, 22 March 2010 in Exhibit A at 605.

By reason of the fact that the Council relied in argument upon the directional arrows on the road surface proximate to the boom gate, it is necessary to say something at this point on that matter. Professor Wenderoth observed that the directional arrows were, in his opinion, for the purpose of directing the route of travel of motor vehicles which came through the carpark boom gate entrance into the carpark. They, in other words, he considered, operated as a guide for motorists entering the carpark and who wished to park in the designated car parking spaces. Professor Wenderoth observed that they did not serve the function of directing or advising cyclists as to the path that they should, or should not, take as they travelled along the carpark roadway: Report of Professor Wenderoth, 22 March 2010 in Exhibit A at 606. As discussed below, cyclists regularly rode out to Fraters Avenue through the boom gate entrance, Riverside Drive itself leading in the direction to that entrance way.

The Boom Gate - Use by Cyclists

The grounds upon which the Council relied in defence of the plaintiff's proceedings, need to be considered against the background of the daily use of Riverside Drive, before the carpark modifications were made in 2004 as well as after they were completed, in particular, in the period 2004 to 2007.

The uncontradicted evidence is that Riverside Drive for many years formed or was used by cyclists as a de facto extension of what was a popular cycle route in use on weekdays and on weekends. That route included the Captain Cook Bridge and the pathway which led down from it towards Cook Park and past the Club into the area where the plaintiff's accident occurred.

Prior to the construction of the boom gate exit in 2004, cyclists regularly exited the cycle route onto Fraters Avenue by riding through the point at which the boom gate was later erected, being the same area through which the plaintiff was intending to proceed on the day of his accident. This had, on the evidence, become the natural flow-on exit point to Fraters Avenue.

The evidence established that following the carpark modifications in 2004, it remained the practice for cyclists to continue to use the boom gate entrance area as an exit way to reach Fraters Avenue as they had before the modifications, even though "No Exit" signs were erected near the boom gate. In other words, the usage or practice as described by Mr Crouchley and Mr Unicomb remained unaltered. This was also confirmed by the plaintiff's evidence. The evidence indicated that this practice was well-known to the Council.

The Council's expert, Mr Kiernan, observed in his report dated 12 October 2010 (Exhibit A at 864):

"The cycleway painted markings on the access road since the incident direct cyclists to the right and along the Riverside Drive cycle path. This is a directional improvement for cyclists intending to travel along the cycle path and not along Fraters Avenue. When the gate was closed, this was the travel path, at speed, by most cyclists observed at the site inspection. However, when the gate was open, these markings were not observed by the cyclists who travelled through the gate and onto Fraters Ave. This was the intention of the plaintiff. Therefore, lack of cycleway pavement markings, are not relevant to this incident."

On the evidence, the reasons for the continued practice after 2004 of cyclists riding through the boom gate area were:

(1) The passage through it was, as before 2004, the natural flow-on path of the cycle route leading to Fraters Avenue.

(2) Few vehicles entered the carpark through the boom gate entry at early hours of the morning (eg, before 6.00am-6.15am).

(3) There were no other convenient or practical exit points for cyclists wishing to leave Riverside Drive and access Fraters Avenue for a combination of reasons including:

(i) The one-way spiked exit access for motor vehicles leaving the carpark installed in 2004 was not suitable for cyclists (as discussed further below).

(ii) The foreshore recreation route was a shared pathway and cycleway for pedestrians and cyclists. For reasons explained in evidence, there was a risk to pedestrians and other users, from "serious" or competitive cyclists using it.

(iii) Many cyclists did not wish to travel on the shared pathway along the foreshore as that would not take them in the direction they wished to take along Fraters Avenue.

(4) On the evidence, the "No Exit" signs were intended for, or were directed at, motorists who were required to use the other exit (the one-way spiked exit) constructed in 2004.

On the evidence, Council officers had knowledge of and understood the reasons for cycle-traffic proceeding through the boom gate onto 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 the boom gate to reach Fraters Avenue.

As discussed below, Mr Daniel Smith, another sporting cyclist, had a similar accident to the plaintiff some months before (at about 6.00am on 23 February 2007) when he collided with the boom gate that had been left in the closed position. That accident and its aftermath assume some significance in the present proceedings.

The Council in its defence to the present proceedings relied upon the two "No Exit" signs and put to the plaintiff that he had contravened the signs on the day of his accident by attempting to cycle through the boom gate entranceway. However, Council staff who inquired into Mr Smith's accident did not suggest that he had been cycling in a way that amounted to a contravention of the "No Exit" signs by doing so, this as noted above, having been a common route followed by cyclists. Nor did contemporaneous Council records concerning the plaintiff's accident suggest any such contravention by him.

Mr Mable did not give evidence that he or other cyclists who cycled through the area of the boom gate had acted in any way considered to be contrary to the sign.

After Mr Smith's collision on 23 January 2007, the Council responded to correspondence from Mr Smith to Council in which he reported his accident. Following investigation, the Council denied any liability stating that although the accident was regrettable, "we believe that a combination of your speed and the conditions of breaking daylight caused your injuries..." (Council letter 23 March 2007, Exhibit A at 65).

Similarly, Mr Pintara Lay, the Council's Traffic and Road Safety Co-ordinator, in his detailed statement in the proceedings made no criticism or observation of the plaintiff (or Mr Smith) for having acted in accordance with the practice of cyclists' riding through the boom gate access point as a means of reaching Fraters Avenue.

Finally, on this aspect, there was no evidence led as to any perceived risk to early morning cyclists using the boom gate point over the years from motor vehicles entering the carpark through the boom gate access. The apparent absence of any early morning accidents involving motor vehicles and cycles at the boom gate access may well have been due to the fact that there was not likely to have been many vehicles entering the carpark area at early morning hours.

Were Alternative Exit Routes Available?

The Council's case as presented in the course of the hearing, sought to establish the proposition or contention that instead of using the boom gate as an exit it would have been open to the plaintiff to have chosen an alternative exit route. One suggested alternative was said to have been the shared cyclist/pedestrian footpath located along the foreshore that followed the waterway. Had the plaintiff used it instead of going through the boom gate point, so the argument ran, he would not have been confronted with the closed boom gate. The fact that it was closed when in accordance with practice if should have been open (discussed below) would then become irrelevant.

The evidence established that there were perceived risks should sporting or competitive cyclists use the shared pathway with pedestrian traffic, including joggers, children and persons of all ages, sometimes walking their dogs. See: Report of Professor Wenderoth Exhibit A at 608 [18].

Mr Crouchley's evidence was that he has been a "serious" or sporting cyclist for many years. He said he had never used the shared pathway. He considered it would be dangerous if used for cycling because of the risk of accident with other users.

The plaintiff said that he had not cycled on the shared foreshore pedestrian/cycle pathway. He said in cross-examination that he was not aware that it was in fact used as a cycleway and that, "... in general you don't ride, as a training cyclist on cycleways, they're not suitable": T 41.

Mr Mable's evidence explained the reason for the boom gate access having been the frequently used exit point over the foreshore/recreation shared pathway.

"Q. And through that gate area?

A. I have observed people going through that gate, yes.

Q. Many?

A. I have seen some, yes.

Q. Have you gone through that yourself?

A. I possibly have.

Q. Possibly, you would remember whether you have or not?

A. Yes, I have.

Q. Why did you hesitate and say 'possibly have'?

A. Oh--

Q. Because it was certainly a preferred way through the car park, wasn't it?

A. The reason why is because there is two cycleways through that area. There is - one is a recreational cycleway which goes along the foreshore, and there's another one, an on road cycleway.

Q. And the foreshore is not very practicable for people who are more serious cyclists?

A. That's correct." (T 148:4-26)

The other suggested alternative put forward by the Council was that cyclists could have used the "one-way spikes" exit that had been constructed in 2004 for use by motor vehicles exiting the car park. Mr Unicomb, however, said that in his experience as a cyclist a "one-way road spikes exit" was unsuitable for use by cyclists.

Mr Joy (the Council's expert witness) made observations upon the suitability or otherwise of shared cycle/pedestrian pathways. In his report dated 29 July 2009 he commented on the suitability or otherwise of shared pedestrian/cycle pathways for both "the lower speed rider groups" and the "sporting riders". In 9.22 of his report he observed:

"The corrective treatments to the cycle route recommended and subsequently implemented at St George Sailing Club were entirely appropriate and beneficial to cyclists using/intending to use the shared path, ie, cyclists in the lower speed rider groups.

...

Given Mr Simmons was a sporting rider and was not intending to use the shared path but was intending to proceed along the roadway portion of Riverside Drive, the corrective treatments proposed to the location were of no relevance to his route or to the incident in which he was involved.

...." (Exhibit A at 790-1)

In relation to the feasibility of cyclists using the one-way spiked exit as an alternative, Mr Mable, the Executive Engineer with the Council, agreed that it was a "tight fit" for cyclists to go around the one-way spikes placed at that exit. It was, he indicated, for that reason that, subsequent to the plaintiff's accident, a pathway was later constructed to encourage cyclists to divert and use the foreshore cycleway. (Mr Mable's evidence will be further considered below.) An exit from it, subsequently put in place, permits cyclists to exit onto the roadway at a point about 80 metres along the pathway. It was constructed after the plaintiff's accident. That was intended as a means of enabling cyclists to leave the foreshore pathway and access the roadway.

Mr Unicomb gave evidence as follows. He stated:

"A car park exit was installed on Fraters Avenue with 'one way' road spikes allowing motor vehicles to exit the car park but not enter. This arrangement was a large steel box with metal spikes that protruded. Clearly this was most unsuitable to be utilised as an exit point for persons on bicycles and I continued to use the exit point onto Riverside Drive I had always used." (Exhibit A at 72)

It may be inferred from Mr Joy's report that Council's documentation reviewed by him (Report, Exhibit A at 783 [5]) did not contain any material suggesting that cyclists generally, or the plaintiff in particular, in fact had available viable alternative exits to the boom gate. In particular they did not suggest that he should have used either the shared pedestrian/cycle pathway or the spiked exit leaving the carpark. Although Mr Joy was retained by the Council to examine, inter alia, "traffic engineering factors relevant to the incident" (para 6.5) he made no comment nor expressed any opinion in his primary report nor in his supplementary report dated 9 September 2010 upon the suggestions as to alternatives put to the plaintiff during the hearing.

The Council's other traffic engineering expert, Mr Warwick Keirnan, did not suggest that such alternatives were appropriate or practical alternative exits. His report is dated 12 October 2010 (Exhibit A at 847-880).

Finally, there was no discussion or reference in any of the Council's records tendered in evidence that indicated that Council ever considered that the suggested "alternatives" were practical or viable exit points for sporting cyclists or that the plaintiff should have chosen an exit point other than the boom gate area.

The Plaintiff's Accident

On the day of his accident the plaintiff left home at approximately 5.30am. On that basis, as at the time of the accident, (approximately 6.15am), he estimated that he had been riding for approximately three-quarters of an hour of what was intended to have been a two-hour ride.

The plaintiff, as earlier noted, rode north across the eastern footway of Captain Cook Bridge and down the concrete cycle path from the northern end of the bridge then proceeded in an easterly direction along the bitumen path to join the end of Riverside Drive. He was riding on his own. He was wearing a helmet. He was not wearing sunglasses or any other form of glasses. The cycle route coming down from the bridge towards Riverside Drive is depicted in photographs in Exhibit A at 68-69.

He then rode along Riverside Drive in front of the Club in a direction which was opposite to the directional arrows painted on the pavement. He proceeded across two speed bumps before colliding with the boom gate. Normally, the plaintiff said, after checking ahead to ensure there was no traffic on Fraters Avenue he would ride out of the gateway and continue east along the roadway. He said there was usually less traffic in that direction.

In his written statement, the plaintiff said he would have ridden the route followed on the day of his accident literally hundreds of times over the previous decade, being one, he said, "that is constantly used by cyclists".

He said on his early morning rides he had regularly seen other cyclists travelling along the same path and through the same gateway access where the accident occurred. He had frequently seen cyclists travelling through the carpark/Riverside Drive in both directions. He said that his prior experience of cycling in this area had been with both groups of cyclists and on his own.

He said his regular training route was between 50 and 88 kilometres. He maintained a training diary and recorded his times on a computer by way of a training log. He, however, did not set times to complete his route.

On the day of the accident, at about 6.15am, having ridden over the Taren Point Bridge he entered the carpark "as normal". As he approached the gateway he checked ahead, left and right for traffic on Fraters Avenue and Riverside Drive. There was no traffic:

"... suddenly, out of nowhere a boom gate closed across the entrance to the carpark appeared in front of me. I only had a fraction of a second to spare and I couldn't avoid hitting it. I hit it at speed. There was no time for braking or any avoidance manoeuvres. My left leg below the knee, took the full force of the impact": at [15] of the Plaintiff's Statement, 11 June 2008 in Exhibit A at 34.

The plaintiff went on to state:

"16 I would describe the boom gate as a single steel horizontal beam about 4 inches in diameter, hinged at one end, latched at the other side of the road, white in colour with no warning signs.

17 I had not on any previous occasions when I rode this route encountered the boom gate being closed.

18 At the time of the accident there were no warning signs in the vicinity of the boom gate."

He confirmed that, so far as he could recall he had not previously noticed the boom gate. He said that his recollection was that there had been more shrubbery in the area of the boom gate at the time of the accident and "[I] just peripherally assumed there was a fence along the side of the roadway": (T 43). He said there was a lot of the shrubbery in question shown in the photograph on p 233 of Exhibit A which appeared to him to have been cut back from the gate (T 48). He confirmed that he never used the exit that had the road spikes.

Subsequent to the accident, the plaintiff returned to the carpark. He noticed changes had been made "which made it obvious for cyclists, who travel in a different direction": (T 43). Additionally, at a point he estimated to be about 30 metres along from the boom gate, a new access to the roadway had been built since the accident (T 44). That new access meant that cyclists, following the new or modified approach to the foreshore pedestrian/cycle pathway could exit onto the roadway some 30 metres away.

The plaintiff said that he could not specifically recall "No Exit" signs at the gateway. However, he said that whether one was there or not, he was "following the cycle route that thousands of other cyclists do": (T 49). He said that it was possible that he had seen such a sign at some time but "assumed that meant for the motor vehicles": (T 49). Cyclists, he repeated, went through the boom gate access point.

He estimated that he was travelling approximately 30 kilometres per hour after he left the bridge and came down the hill (T 50). He thought he was travelling the same speed at the point of his accident (T 51), although he said one normally slowed down approaching the intersection to check for traffic. There was a need, he said, to slow his cycle to ride over the speed humps.

The plaintiff's attention was drawn to the directional arrows on the roadway as shown in the photograph in Exhibit A at 233. He said that he did not consider that they applied to cyclists such as himself "because that's precisely the point at which the cycle path directs your entry into that street" (T 54).

The plaintiff said that the boom gate was not obvious. He explained that as a cyclist proceeds in the direction of the Club, he/she sees a number of white horizontal lines, two of which are speed humps and another white horizontal line (a reference to the boom gate) which so far as he was aware "was just a fence along the side of the road" (T 58).

He said that following the accident he observed that when the boom gate was in the closed position it appeared to be in exactly the same position, on approach, as it did when it was in the open position (T 58).

In cross-examination it was put to him that the gate would have been obvious to him had he been maintaining a proper lookout, it being in front of his path. The plaintiff responded that it was not obvious. He denied that the collision occurred by reason of a failure on his part to keep a proper lookout.

In cross-examination he was asked:

Q. Tell me how could you have been keeping a proper look out and not even have enough time to hit the brakes before you struck the gate?

A. First and foremost, I was unaware that there was a gate to look out for, so my expectation of a potential obstruction was nil, other than what I would normally expect on a piece of roadway, and that is other cars or users of the road." (T 59)

He said that he was a very experienced cyclist and was well aware of his surroundings but he did not see the boom gate. All that he saw was a horizontal white line which he did not recognise was a closed obstruction across the road. As far as he knew it was an open gate (T 60). He repeated that from the viewpoint of an approaching cyclist it looked exactly the same closed as when it was open (T 61).

Accordingly, although it was not something that he was actually looking for, he said that as a cyclist he was constantly scanning the road ahead looking for what might be traffic obstructions.

The plaintiff said the time at which he realised there was an obstruction was about the time he was going to hit it - the very last second and he had insufficient time to take any form of avoidance measure (T 61).

The plaintiff said he was aware that in the period between 2004 and 2007 of the fact that changes to the carpark area had been made to the Riverside Drive area (T 63-64). He recalled that at some stage he came to realise that spikes had been placed on the roadway (T 64). He said that he had never considered using the spiked exit as an alternative - it did not make any sense for him to do so (T 65). He said that he did not know that the exit with the road spikes was available to be used as a cycle exit. The cycle pathway did not lead to that particular exit but continued on a straight line through to the street (T 68).

He agreed that there was an inherent risk in approaching on "the wrong way" of a street where there was an intersection with vehicles potentially turning (T 66) but rejected the proposition that he was travelling "the wrong way" towards the intersection, or that he did not have a clear view of oncoming vehicles (T 67).

He said that the route that he followed on the day of his accident had been safe and adequate on the hundreds of occasions that he had been through it. He did not see anything up to the point of the accident that would suggest that he needed to find an alternative (T 69).

He acknowledged that he knew of the boom gate as a structure or object after it had been constructed in 2004, but "as a cyclist looking for safe egress, you are looking for obstructions across the road. There was no obstruction across the road" (T 70) - referring to his prior experience.

He said that if he knew that there was a gate obstructing the roadway he would have investigated alternate routes (T 71).

Following the accident a neighbour, Mr Donald Tinworth, said that he and his wife attended to the injured plaintiff. Mr Tinworth said "on the matter, the gate is normally opened by the Club's cleaner, who did arrive while the ambulance was treating Alex": Statement, Exhibit A at 159.

Three Cycle Accidents

On the evidence, there have been at least three known incidents occurring when the boom gate had been left, early in the morning, in the closed position involving cycle accidents being those involving Mr Smith, Mr Unicomb and the plaintiff.

The factual matters concerning each of the three accidents are summarised below:

(1) Mr Unicomb's Collision: 2006

(i) Mr Unicomb had used the cycle route, including Riverside Drive, on a high-frequency basis over many years.

(ii) He was an early morning cyclist with cycling experience at competitive levels.

(iii) He had previously encountered the boom gate on a few occasions causing him to "lock-up" the brakes of his cycle.

Mr Unicomb said that on one occasion in approximately 2006, after sunrise, unknown to him, the boom gate had been left in the closed position. On his approach he did not see it in time to prevent a collision at a slow speed. He spoke to a person who was in attendance who said he was a cleaner from the Club. The cleaner then proceeded to open the boom gate. Mr Unicomb's evidence was that the gate was not apparent until one was on top of it. This, he considered, was due to the oblique angle or position of the boom gate which made assessing its actual location difficult.

Mr Unicomb's evidence was that at some point soon after the plaintiff's accident (he arrived on the scene of the plaintiff's accident shortly after the plaintiff's collision) he noted changes to the roadway. These were hand painted markings and arrows with "cyclists this way" painted on the roadway: see photographs in Exhibit A at 236-7.

(2) Mr Smith's Collision: 23 January 2007

(i) Mr Daniel Smith, a fire brigade officer, had a routine cycle route which encompassed Riverside Drive and he also used it on a high-frequency basis.

(ii) He was an early morning cyclist. He had been a competitive cyclist in both the United Kingdom and in Australia.

(iii) He had frequently ridden the footpath/cycleway leading onto the Riverside Drive segment past Cook Park and the Club (he said at least several times a week).

(iv) The boom gate, according to his recollection, had never been closed. However, on Tuesday, 23 January 2007, at approximately 6.00am, he rode across the speed humps and the pedestrian crossing. When a metre or two from the boom gate (which was in the closed position), he suddenly realised what it was and collided with its top bar with some force. The impact threw him over the barrier. He received injury to his leg as a result. His father notified Council of the accident on 24 January 2007. Mr Daniel Smith himself also subsequently emailed the Council regarding the accident.

(v) Mr Smith estimated that his speed, when he hit the boom gate, was between 25-30 km/h. That was similar to the plaintiff's estimated speed at the point of his collision. He maintained that he was keeping a proper look out "... you just couldn't see it nor expect it to be there in the sense that it was closed": Statement dated 27 October 2007, Exhibit A at 45 [30].

Mr Lay, a Council officer, said that, after Mr Smith's accident he was informed by Mr Mable, Executive Engineer at the Council, that a cyclist had ridden into the boom gate across the entrance to the carpark.

He could not remember when it was that he was informed of Mr Smith's incident. However he recalled subsequently going down to the site of the accident.

Mr Lay said that:

"I believe from looking at the gate that it was alright and nothing needed to be done ...": Statement, Exhibit A at 327 [46].

He added:

"I did not think anything needed to be done to the gate and although I now cannot remember the words that I said to Colin, I told him what my views were ...": Statement, Exhibit A at 327 [47].

The adequacy or otherwise of the inspection carried out by Mr Mable and Mr Lay after Mr Smith's accident is discussed below.

(3) The Plaintiff's Collision: 11 April 2007

The evidence given by the plaintiff as to the circumstances of his collision have been summarised above. The following additional matters are noted:

(i) The plaintiff's level of competitive cycling experience was (at least) comparable to that of Mr Unicomb and Mr Smith.

(ii) He was cycling towards the boom gate on 11 April 2007 at a similar time of day to Mr Unicomb and Mr Smith and at approximately a similar speed when their collisions with the boom gate occurred.

(iii) He, Mr Smith and Mr Unicomb, all stated that they were maintaining a lookout ahead, prior to their respective collisions.

PART C

The Defendants' Case

The Evidence of Council Officers

(a) Mr Pintara Lay

The Council called Mr Pintara Lay, Traffic and Road Safety Co-ordinator with the Council in evidence. He gave evidence, firstly, in relation to the redesign and reconstruction of the carpark in 2004 and, secondly, in relation to the investigations into Mr Smith's cycle accident. A copy of Mr Lay's witness statement is behind Tab 26 of Exhibit A at 319-334.

Mr Lay had been employed with the Council since 22 April 2002. He gave evidence of the particular events leading up to boom gate construction in 2004 and of other changes to the carpark.

In 2002 he was asked to consult with police in developing installations with a view to preventing anti-social behaviour by "the hoons".

Exhibit Pl-1 included photographs of the carpark before any work was undertaken in 2004.

Proposals and Arrangements for Opening and Closing the Boom Gate

On 25 March 2004, Mr Keith Langelaar, General Manager of the Club, wrote to Mr Lay stating, inter alia:

"I had been instructed by the Board of Directors of St George Sailing Club to ask you if you could provide them with the reasons why Rockdale City Council are unable to complete the closure of the St George Sailing Club Car Park, as we are the only resident in Riverside Drive and it would be secured by Management of the Club at the close of trade each night." (Exhibit A at 356)

Mr Lay wrote a letter dated 28 April 2004 to the Club entitled "St George Sailing Club Car Park - Gate against the hoons". Two options (being plans for the redesign of the carpark) were set out. Option 1 is to be found in Exhibit A at 359. This option was ultimately adopted for design/construction purposes. It had an arrow placed on the diagram pointing to the proposed boom gate. It also contained the following entry on the Option diagram "proposed entrance gate (closed 11.00pm til 5.00am) & at discretion of St George Sailing Club".

Mr Lay said that the reference to "and at the discretion of the St George Sailing Club" referred to the circumstances where the Club may have a late closing, that is later than 11.00 pm, but may also wish to have an earlier closing because of lack of business (T 115).

"Q. You were not speaking of any discretion with respect to the time of opening in the morning, were you?

A. We were, together with the community, with the club, and the discretion time - I mean, that discretion of St George Sailing Club was dealing mainly with the opening and - closing and opening of the gates" (T 115).

Mr Lay said that, from discussions, he understood that the Club trading hours were variable and that if the Club closed earlier then it would be open to it to lock the gate earlier. Similarly if, for example, there was a reception that went until 1.00am in the morning then they could close the carpark at 1.00am. Mr Lay agreed (T 115).

It was further put to Mr Lay:

"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 Sergent 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." (T 115-116).

Mr Langelaar had told Mr Lay that he wanted him to restrict access after club trading hours by means of a gate. This appears to be the origin of the idea for the boom gate.

Mr Lay discussed this aspect with his manager of the Council, Mr Bill Woodcock. Mr Woodcock told him to install the gate across the carpark entrance. In particular, he told him to use the same type of gate that Council had installed in other locations within the Rockdale City area. As discussed below, the opening of these gates each day is undertaken on a daily basis on behalf of the Council by paid contractors retained by the Council.

On the plans for the modifications appeared a note in the following terms: "proposed entrance gate (closed 11.00pm till 5.00am) and at the Discretion of St George Sailing Club". Mr Lay said that he had a conversation with Mr Langelaar who informed him that the gate could not be closed before 11.00pm because some functions in the Club lasted until at least that time. It is of some significance that this note was based on what Mr Langelaar had told him who it appears was at that time focussing upon the need for flexibility having regard to variability in the Club's closing hours.

The provision made, conferring a "discretion" in the Club, is a matter of some significance. It effectively provided the Club with the scope and opportunity of determining for itself the opening as well as the closing hours for the boom gate. In this regard it lacked the strictures of a regime that required specificity and certainty for the daily opening of the gate.

I have referred to Mr Lay's evidence on this aspect at [120] above. In cross-examination, Mr Lay had initially said that Sergeant Cooper was the person who had suggested a 5.00am opening. Later he sought, rather unconvincingly, to retract that evidence.

Mr Lay said that he had had discussions with police from time to time about the design of the carpark modification. Following one particular discussion he decided that it was necessary to put on the proposal "Closed 11.00 pm till 5.00 am": (T 114). It was then put to him:

"Q. You've put that on there because of what the police had said to you; is that right?

A. Yes.

Q. Do you remember who it was at the police that you spoke with?

A. Traffic sergeant Gary Cooper".

Mr Lay said that in the design of the modifications of the carpark he was required to liaise with the Club, as it was "... an important interest to be considered ...": Statement, Exhibit A at 325 [40]. He said he had several discussions with Mr Langelaar about the project. Plainly the Club's requirements and its representation about such requirements formed a central consideration in the discussions with the Council.

Mr Lay's statement of 22 October 2010 (Exhibit A at 319-344) attached a volume of material which included documents that came into existence in the 2003-2004 period concerning the design and reconstruction of the carpark area, and in particular, the boom gate construction.

Mr Lay's letter dated 28 April 2004 to Mr Langelaar of the Club seeking a commitment from the Club stated:

"I would like to know of your commitments toward the manning of the gate and your views of the overall schemes. May I please have your reply as soon as possible." (Exhibit A at 357).

In a letter of 11 May 2004, Mr Langelaar stated that the Club's Board members would like the Council to proceed with Option 1: (Exhibit A at 363). However, nothing was said by way of response to Mr Lay's request that he be advised as to Club's "commitments" to manning the gate or the arrangements for opening and closing the boom gate referred to as Option 1.

Council records tendered in evidence noted that the application for the carpark modification related to "install traffic measure to combat the anti-social behaviour and reckless driving manners of some drivers ...". It referred to a "Council Resolution to the effect that approval be given to the proposed traffic measures at the Club as shown in Attached Document A". A number of dot points thereafter followed, including:

"Proposed Gate at the Entrance driveway (Closed 11.00pm until 5.00am) and at the discretion of St George Sailing Club."

Mr Lay said that the plan to which reference was made was "a conceptual plan", it not having been formalised or signed off by his supervisor (T 113).

At the time that the Council dealt with the Club, Mr Lay confirmed that the material consideration at that time was the need to exclude the "hoons" from the carpark at night.

It was later submitted for the plaintiff that Mr Lay's evidence made it clear that the past and prospective use of the road surface (Riverside Drive) by cyclists as a cycleway had not been considered: T 119-120.

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).

A document, a "Report of Background" in Exhibit A at 366 noted:

"The management of St George Sailing Club consents with this proposal. Their security guard will man the gate."

As events turned out, no "security guard" manned the gate. The boom gate was opened and closed by the Club's cleaner.

On 28 June 2004, Mr Lay again wrote to Mr Langelaar setting out a number of details including the Traffic Committee recommendation and Council Resolution made on either 26 May and/or 23 June 2004. The letter concluded:

"I have enclosed a letter that I would like you or your Club's relevant Officer to sign confirming that you/your club agree to operate and man the gate in the car park in front of the St George Sailing Club. The gate shall be closed at 10.00pm and opened at 5.00am or at the discretion of St George Sailing Club at no cost to Council."

The draft letter enclosed a proposed statement from the Club entitled "Confirmation of St George Sailing Club":

"We ... would like to agree and undertake to operate the gate and close it in the car park 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)

On the evidence it appears that Mr Lay did not receive any written response from the Club to his letter seeking confirmation of the arrangements. This accordingly was the second occasion on which there was a failure by the Club to respond to a request that had been made by Mr Lay (see above re letter 28 April 2004).

In cross-examination it was put to Mr Lay:

"Q. Wherever it had its origin, the purpose of you writing what you wrote in April of 2004 was to get from the club a responsible commitment with respect to the opening and closing of the gates if they were to be put in; correct?

A. Yes." (T 112)

Mr Lay's attention was drawn to a memorandum entitled, "Sailing Club Car Park, Fraters Avenue, Sans Souci" dated 9 February 2004 written by Mr Richard Jarvis, then Manager of Transport Planning, with the defendant Council. A copy of the memorandum is in Exhibit A at 351. In it, Mr Jarvis addressed arrangements for opening and closing the carpark. The memorandum recorded:

"The situation is less than satisfactory for the residents. All they want is the carpark closed after Club hours. We already have a routine operation to close and open the numerous beachfront carpark gates. I believe we should extend the task to this carpark, with arrangements for the Club to also operate the chain locking when necessary."

Mr Lay said that as at February 2004, the Council conducted a routine operation for the carparks within the municipality. He said that it had about 20 carparks near the waterfront with gates. Private security personnel were charged with closing and opening the gates in relation to them (T 109).

Mr Lay explained that the "security personnel" were contractors to the Council. The Council officer responsible for the work of the contractors was his manager, Mr Bill Woodcock, who was later replaced by Mr Jeremy Morgan. Mr Lay made the point that the other carparks in the Council area to which he referred did not have a club attached as was the case with Cook Park.

On the evidence, the proposal by Mr Jarvis to engage the Council's private security personnel to open and close the gate (or it appears as originally envisaged unlocking a chain), was not examined as a means of ensuring that the boom gate was opened each day at 5.00am or at least by 6.00am. The consequence of the failure to adopt Mr Jarvis' proposal is discussed below.

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.

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.

The Council's Inquiry into Mr Smith's Accident

Mr Lay gave evidence on the subject of the Council's inquiry into Mr Smith's accident. He said that he did not talk to Mr Smith about the accident. He was unaware of him having suffered injury in the collision (T 122:12-15).

He said he went with Mr Mable in 2007 soon after the accident to the site of the accident. The boom gate, however, was not in the closed position during his observations of it (T 122:35-45). He did not make any entries in Council records about his inspection or examination (T 22:4-T 23:4). He did not make his evidentiary statement in the present proceedings until 22 October 2010.

Mr Lay said that he did not discuss Mr Smith's accident with anyone at the Club before or after his inspection with Mr Mable (T 123:15-17).

The only information that he had been provided with was that Mr Smith's accident involved a collision between a cyclist and the boom gate (T 123:25-27).

In his statement, Exhibit A at 326, Mr Lay stated that he and Mr Mable would usually walk together twice a week during lunchtime to do inspections. On the occasion of the inquiry into Mr Smith's accident, he said that they drove to Riverside Drive to carry out an inspection. He stated:

"46 I remember when we got there, both Colin and I looked at the gate. I cannot now remember exactly what Colin and I said to each other. I believed from looking at the gate that it was alright and nothing needed to be done. I remember seeing that there were two signs saying 'no exit', the chain hung on the gate and its shadow as a 3 dimensional piece of object. I knew that there were many gates like that in the Council area and it was painted white.

47 I did not think anything needed to be done to the gate although I now cannot remember the words that I said to Colin, I told him what my views were ..."

(b) Mr Colin Mable

Mr Mable commenced employment with the Council in July 1976. As earlier noted, he is employed as an Executive Engineer and is part of the project management and design department of the Council.

He was not aware of the precise details of the modifications in 2004 to the carpark at the Club as he said he was not involved. He was aware that they had been undertaken because of the concern of residents about "hoons" engaging in anti-social behaviour in the area.

He said that following notification of Mr Smith's accident, on a date that he could not remember, he went to the site to inspect the boom gate. He said that his recollection was that Mr Ian Smith of the Council had asked him to go and have a look at the area. He made arrangements to go to the site with Mr Lay and said that this was a specific inspection undertaken following the notification of the incident - it was not part of a formal external audit, nor part of an audit that he and Mr Lay undertook.

Mr Mable referred to the inspection at [19] of his statement: Exhibit A at 195. It is clear that he had little detailed recollection of his inspection. The last five sentences of at [9] were admitted on the basis that they were matters he relied upon for his opinion. In it he said that, "the boom gate looked fine to me". He said it was a standard sort of boom gate painted white. He said there was no problem with being able to see it. He said he certainly did not consider that there was a danger and did not think that it required any action by Council.

He said that Mr Lay did not suggest to him that there was a problem with the boom gate or that anything needed to be done.

He did not make any report on his inspection. He was sure that he would have discussed it in general terms with his boss, Mr Bill Woodcock: Statement in Exhibit A at 196 [22].

In cross-examination, Mr Mable agreed that his inspection was a fairly informal one: T 141:10-15. He at first said that he had taken some photographs on his inspection but then corrected himself and said that the photographs to which his statement related were taken after the "second incident": T 141:40-45.

He agreed that he did not take any photographs of the inspection carried out following Mr Smith's accident. He also agreed that he did not make any notes of his inspection. He said he reported back to Mr Ian Smith of the Council by email.

Mr Mable was taken to computer recorded entries made subsequent to Mr Smith's accident in Exhibit A at 171. His attention was drawn to a file note, 9 February 2007, which was an entry to the effect that a Mr Vaidyaj had communicated with Mr Mable in the following terms:

"... Colin, As discussed you will organise line marking and directional arrows for cyclists to follow the path at this location. Thanks"

In cross-examination Mr Mable said that it was up to him to organise work such as line markings and directional arrows. He said at first that he did not think markings were necessary. However, he subsequently conceded that two days after the accident he in fact was the person who put directional arrows on the road of Riverside Drive: T 145:25-35.

In relation to his inquiry into Mr Smith's accident, he said that he thought that the boom gate "looked fine to me" T 146. He did not see any problem with it or its construction. He did not think it presented any form of danger (T 147:1-15). However, he agreed that when he inspected it the boom gate was in the open position only. He said he did not attempt to obtain the key and unlock it to see what it looked like in the closed position: (T 147:5-15).

He said when he looked at it there was 100 metres clear vision, no vegetation blocking it and it was a flat grade through the carpark so the visibility was unimpeded (T 147:30-40).

He said that although he did not see the gate in the closed position although as has been noted earlier, he said: "I could assume how it would be". He then described how he assumed it to be and added "it would be very obvious to see so far as I'm concerned" (T 147:40-45).

It was put to him in cross-examination that he did not at that time consider the feasibility of directional arrows for the purpose of directing traffic away from the boom gate exit.

Mr Mable said he himself was a regular cyclist. He had seen other cyclists go through the boom gate exit and said he had possibly done so himself. He agreed that the foreshore shared pathway/cycleway (referred to as a "recreational cycleway") was not a practical route for the more "serious" cyclists (T 148:5-25).

Mr Mable said he gave instructions following Mr Simmons' accident to erect a chevron sign on the boom gate. When it was put to him that this was done to make it more visible, he responded: "Well, it makes it consistent. We have put chevrons and similar things on other boom gates in the area so I wanted to be consistent": (T 149:40-45). He agreed that putting the black in contrast to the white made it more visible and that at the time of the incident there was "... a very small red thing at the top of the gate" (T 150:1-5).

Mr Mable repeated that following his inspection he did not take any "immediate action until we finished the audit over the whole pathway, not just one specific spot ...": T 152:1-5.

As to the arrangements or system for the opening and closing of the boom gate, Mr Mable was asked:

"Q. Did you make any enquiries to determine what the arrangements, if any, were concerning the opening and closing of the gate?

A. No, that wasn't - nothing to do with me.

Q. That obviously is an important aspect of safety, isn't it?

A. Well, yes. Obviously you want the gate open, but that wasn't my role at all of council to organise that.

Q. Because if the gate's open you can't hit it, can you?

A. That's right.

Q. And closed gates and cyclists aren't a good mix, are they?

A. No.

Q. Whatever be the circumstances.

A. Of course.

Q. And one of the important considerations with respect to the opening of gates is that they can pose a hazard to whoever might be using the roadway and particularly cyclists, correct.

A. Of course, if it is shut, yes.

Q. Nobody at Council asked you, for example, to check with the club about what the system concerning opening and closing the gate was?

A. No.

Q. And you didn't speak to anyone at the club about Mr Smith's injury or your checking into it.

A. No, it wasn't my role." (T 153)

Mr Mable agreed that after the audit had been conducted in 2007 no suggestion had been made by anybody that steps should be taken to try and redirect cyclists who used Riverside Drive as a cycle route towards and through the spiked exit area (T 154:35-45). He agreed that that exit would constitute a narrow area for a cyclist to go. He stated, "It's a tight fit. That's why we put the pathway through with the green painting": (T 155:5-10). He said that he preferred to go on the cycleway "... that's the preferred way to go" (T 155:15-20). On the subject of cyclists riding through the Riverside Drive exit against the direction of the arrow painted on the roadway, he added that:

"A. We have other sections of our cycleway where you do ride against the reversed flow of traffic. That's a common practice for cycleway routes to go against traffic flow:

Q. Well, this is something I was going to raise with you. Runners, pedestrians walking on roadways, cyclists frequently for their own safety do travel in the direction opposite to oncoming traffic?

A. That's right.

Q. So they can confront one another and take steps to avoid each other?

A. Yeah.

Q. Because if a car is coming from your behind, it is much harder to be able to appreciate a risk and respond, isn't it?

A. Yes. (T 155)

He agreed that there were good and sensible reasons why cyclists would travel through the boom gate area against the direction indicated by incoming arrows which were intended to direct traffic in from the street. He also said "it certainly occurs in other locations": T 155:15-40.

On the feasibility of introducing alterations by way of safeguards, Mr Mable said: "On the second occurrence [ie the plaintiff's accident], yes, I thought we should take some action". It was put to him:

"Q. There was nothing from a practical point of view that prevented you doing, either on or shortly after 9 February 2007, what you eventually did after Mr Simmons' accident, was there?

A. There was nothing preventing me, no. But I was wanting to do an audit before I took any action, to determine what was actually required if anything was required." T 145:35-45

(c) Mr Ian Smith

Mr Ian Smith was called in the Council's case. He had commenced employment with the Council in 1996 as a carpenter and later became a Supervisor/Team Leader in the Parks and Property section of the Council. In 2001 he commenced his role as Insurance and Risk Manager for the Council.

Mr Smith referred in his written statement to a council record relating to the accident involving Mr Daniel Smith. He said that he was notified of the matter on 29 January 2007 by email. A copy was included in Exhibit IS-1.

A copy of an incident form, forming part of Exhibit IS-1, is to be found in Exhibit A at 171. The entry of 27 January 2007, 10.13am, records a report by Mr Smith's father:

"Cycleway between Riverside Drive and St George Sailing Club has a metal 'boom gate' across it near the club. Gate was closed when Mr Smith's son cycled into it on the early morning light (6.00am). Mr Smith (Jnr) has been to medical centre and had x-rays. While there were no broken bones he has some significant swelling and will be off work.

Mr Smith (Snr) ... stated that as you approach the gate the two 'No Exit' signs and some red stripped [sic] 'day glow' tape on the bar ... 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 ..."

The document also records an entry dated 9 February 2007 in these terms:

"Colin, As discussed you will organise line marking and directional arrows for cyclists to follow the path at this location. Thanks."

Mr Daniel Smith sent photographs to the Council in an email entitled "to whom it may concern" recording "please find attached a letter and accompanied photo's (sic) of accident scene and injury sustained ..." (Exhibit A at 173).

Mr Ian Smith in his statement said that after he received emails about the accident on 28 January 2007, he spoke to Mr Mable about the matter.

He said that he did not make any independent evaluation of safety of Mr Smith's accident (T 126).

The document attached to Mr Smith's statement in Exhibit A at 171, in addition to the matters concerning the accident involving Mr Daniel Smith, also recorded an item concerning a safety audit of the cycleway in question. The entry is dated 8 March 2007 and reads:

"Council is currently undertaking a safety audit along the length of the Cook Park Pedestrian/Cycleway including the section along Riverside Drive between Clareville Avenue and Frater Avenue San Souci. Once this is completed any recommended measures to improve safety along this pathway will be implemented by Council as soon as possible."

Mr Ian Smith in evidence agreed that this entry related to a general audit not specifically related to the area in which Mr Smith had had his accident (T 130-131).

Mr Ian Smith wrote to Mr Daniel Smith on 16 February 2007 denying liability. The letter referred to the Council's investigations which had been completed. A copy of the letter is in Exhibit A at 186. The letter recorded, inter alia:

"... our investigation into the incident is complete and we hope that you are recovering well from your injuries.

Council's Executive Engineer has advised me that Council staff plan to conduct an audit of the signage and line marking for the entire length of the shared path and cycleway. This audit is due to be completed in March 2007.

...

We firmly believe that our asset inspection and maintenance systems satisfactorily meet the duty of care that we owe to the people that use them.

Whilst your circumstances are regrettable, we believe they are the result of misadventure rather than any active negligence on the part of the Council. It is for these reasons that we deny liability to compensate you for the items claimed.

..."

He agreed that he wrote the above letter notwithstanding that "broader issues of the cycleway" were still outstanding (T 131).

Conclusions

The evidence in my assessment establishes the following:

(1) The inspection carried out by Mr Mable and Mr Lay was not directed to identifying or assessing the probable potential causes or the factors that may have contributed to Mr Smith's accident. In particular it did not involve an examination of the gate in the closed position in order to determine whether it presented any difficulties or confusion in perception or visibility. No observation records or notes or findings in relation to the inspection were created.

(2) Following the inspection after Mr Smith's collision, no recommendation was made for a review of the boom gate or its operation in order to determine the existence of any possible hazards or risks.

(3) No inquiry was made by Council into the circumstances that explained why the gate had not been placed in the open position by or before 6.00am on the date of the accident.

(4) No officer of the Council, following Mr Smith's accident, examined the adequacy or sufficiency of the Council's arrangements with the Club for the daily opening of the boom gate.

(5) There had been no consideration given before the plaintiff's accident into the adoption of changes to the relevant area of Riverside Drive that were implemented following the plaintiff's accident. These included directional signing, and pavement markings designed to encourage cyclists to enter onto the foreshore recreational cycleway with an exit provided to the roadway by way of a new ramp area constructed a short distance away.

(6) Mr Mabel had witnessed cyclists frequently using the boom gate access as a customary route to Fraters Avenue and accepted that he himself had probably used it. The path or route followed by the plaintiff when injured accordingly was a well-established one.

(7) That there were good reasons, from the point of view of safety, for cyclists to use the boom gate exit against the directional flow of traffic. The directional arrows on the roadway at the boom gate were designed to direct motor vehicles in from Fraters Avenue into the carpark. In practical terms, they were not seen or treated, before the plaintiff's accident, as a prohibition or an indication against the use of the boom gate access point by cyclists. It was a facilitative direction for motorists.

PART D

(i) Expert Evidence

Expert evidence was called by both parties from traffic engineers and from "visual" experts.

In relation to traffic engineering and accident analysis, the plaintiff relied upon the evidence of Mr John Jamieson of Jamieson Foley, Consultant Forensic Engineers, whilst the first defendant relied upon the evidence of Mr Alan Joy of Joy Consulting and Mr Warwick Kiernan, Consultant Civil Engineer. These were referred to as the "Traffic Experts".

The plaintiff relied upon the evidence of Peter Wenderoth from Macquarie University. The Council relied upon the evidence of Professor Stephen Dain of the University of New South Wales. They were both described as "Visual Experts".

As noted earlier, Mr Jamieson's company undertook an audit on behalf of the defendant Council. The road safety audit report was dated 4 July 2007 and was attached as Appendix D to Mr Jamieson's report: Exhibit A at 701-777.

"It is the duty of a roads authority by which a notice or barrier has been erected under this section to remove the notice or barrier if there is no longer any need to regulate traffic for the purpose for which the notice or barrier was erected."

That sub-section is consistent with the common law duty of care of the Council to cyclists to ensure the boom gate (the barrier) was removed at the start of each day.

Section 43A(3)

Notwithstanding the conclusion expressed above. I turn to the provisions of s 43A(3) in the event that it could be established that the Council exercised a statutory power under s 87(3) of the Roads Act.

The exception expressed in s 43A(3) is in terms "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 ..."

As noted above, "traffic control facility" is defined, inter alia, to refer to a "structure" "intended to promote safe or orderly traffic movement on roads".

The boom gate arrangement between the Club and the Council was premised on a need to close the gate on a limited basis, that is, overnight.

Given the fact that the cycleway, including the extension of it, had become a highly trafficked route, there was not only no purpose to be served in leaving the gate closed in daylight hours, there was a positive need to ensure that it was opened each day at an early hour. No reasonable authority could properly have considered it a reasonable exercise of the power under s 87(3) to permit the gate to remain closed by day in those circumstances. To leave it in the closed position by day would not only not serve any worthwhile purpose or function, but to do so would convert its use as a "traffic control facility" into a structure that presented cycle "traffic" to a potential hazard or risk of injury. The "omission" the subject of s 43A "in the circumstances" could not constitute "a reasonable exercise of power" within that section.

PART H - LIABILITY OF THE CLUB

The submissions for the parties in relation to the Club proceeded as follows:

(1) Second Defendant's Outline of Submissions dated 25 October 2012

(2) Plaintiff's Submissions in Response to the Outline of Submissions of the Second Defendant and Oral Submissions delivered on 22 November 2012 dated 4 December 2012

(3) Second Defendant's Submissions in Response to Submissions of Plaintiff dated 4 December 2012 received 10 December 2012

The Club's Submissions

The Club disputed the proposition that the power to open and close the gate had been effectively delegated by the Council to the Club. There having in fact been no delegation, it was submitted, there had been no assumption by the Club of a duty of care with respect to the opening and the closing of the gate.

Reference was made by Mr Morris SC for the Club to the evidence to the effect that the Council operated a number of carparks in the Rockdale municipality and that the gates in those areas were opened and closed by security contractors engaged by the Council.

The Club had been given keys by the Council to the padlock used to lock the gate in a closed position and to open it. It was told by the Council that it could open and close the gate at times "at its discretion".

It was the Club's contention that there had been no delegation of any right or any authority to the Club with respect to the gate. Similarly, with contractors retained by Council to open or close any of the other carparks within the municipality, no delegation of any right or authority arose or was involved: Club's Written Submissions at [5].

The correct position it was submitted was that the Club, like the Council's security contractors retained with respect to its other carparks, had been agents for the performance by the Council of its functions.

The Club submitted that any duty of care that it acquired by reason of its agreement to open and close the boom gate would be limited to the exercise of reasonable care when carrying out those activities.

It was submitted that there was no evidence of any additional responsibilities assumed by the Club which would result in a duty of care being owed by the Club to the plaintiff as a cyclist passing through the area.

Further, it was contended, no pleaded or evidentiary case had been presented that the Club had agreed to undertake to close or open the gate at a particular time.

In the Further Amended Statement of Claim the following particular of negligence was pleaded as against the Council at [15]:

"xiii Purported to delegate to the second defendant the function of opening and closing the boom gate without identifying the appropriate time for the opening of the boom gate;

xiv Purported to delegate to the second defendant the function of opening and closing the boom gate without identifying to the second defendant the reasons behind the appropriate time for the opening of the boom gate."

As against the Club, it was alleged at [20] of the Further Amended Statement of Claim:

"x Failed to inform itself as to the need to open the boom gate at 5.00am"

"xii Failed to inform itself of the appropriate system of the boom gate and the reasons for such a system."

It was submitted for the Club that there was no evidence as to what would be an appropriate time for the gate to be open and there was no expert evidence that it should be open by 6.15am. No opening time was specified or recommended by Jamieson Foley after its audit.

It was submitted that the issues of any inadequacies of the cycleway should not be elided into the issue of whether or not the gate should be opened at a particular time. Passage through the area, which was barricaded by the gate, was not part of the official cycleway.

It was further submitted that it was a relevant fact that the gate could be closed at any time provided that its existence was properly marked or highlighted so as to avoid confusion in the mind of a cyclist.

The Club's submission was that no duty of care could be found to exist simply on the basis of the undemanding test of foreseeability and considerations of fairness: Sullivan v Moody (2001) 207 CLR 562 at 579 was cited for the proposition that there are dangers of finding a duty outside established categories.

It was submitted that any duty of care found to exist must be rationally related to functions, powers and responsibilities of the persons or authorities claimed to owe the duty: Sullivan at 581.56.

It was submitted for the Club:

(i) It was not the occupier of the carpark;

(ii) It only had the limited function of opening and closing the boom gate at times it chose.

(iii) It was not expressly charged with determining whether or not it was safe to open and close the boom gate at particular times.

(iv) It had not been delegated any powers to erect warning signs or lights or to mark the roadway with arrows and warnings or otherwise to respond to any perceived risk; and

(v) The Club was not shown to have been aware that cyclists passed through the exit space to the carpark at times and in circumstances where they could not readily perceive the gate was closed.

It was submitted that facts had not been established in evidence that were essential to a finding of a duty of care. Further, a finding of duty of care, it was argued, would be inconsistent with established principles relating to the law of principal and agent and principal and independent contractor.

A primary question, it was observed in the submission for the Club, is "was the risk foreseeable?". Section 5B(1)(a) of the CLA directs attention to whether the risk was one of which the person knew or ought to have known. On behalf of the Club it was submitted that relevant considerations were said to include:

(i) The risk is properly characterised as a risk that a cyclist in daylight hours, keeping a proper look out and with an unobstructed view, would collide with the closed gate.

(ii) In the ordinary course it was reasonable to expect persons to respond to barricades that they would be expected to see.

(iii) The expert evidence was consistent with that reasonable expectation. The experts agreed that the barricade was readily visible.

(iv) The most favourable explanation for the plaintiff's failure to respond to the evident risk is a combination of facts: a "perceptual trap", the result of the cyclist's position on the roadway, his speed of approach and angle of the gate.

(vi) There was no evidence to the effect that such a "perceptual trap" would have been evident to the unskilled observer.

(vii) A consideration of the possibility of the risk eventuating requires an understanding that cyclists habitually travelled at speed in the early hours of the morning through the exit roadway from the carpark and did not follow the known cycleway (a reference to the shared pedestrian/cycle pathway).

(viii) There was no evidence that the Club had any appreciation that cyclists were following this route in the early hours of the morning.

(ix) There was no evidence that the Club knew of the risk.

It was submitted that the plaintiff had not established that, from the Club's perspective, the risk was foreseeable.

It was further submitted on behalf of the Club that the relevant question was said to be whether the risk of accident could properly be characterised as "not insignificant": s 5B(1)(b). Relevant to this consideration the following matters were relied upon:

(i) There was no evidence as to the times of opening prior to 2007. The evidence was to the effect that the opening times had been variable.

(ii) There was evidence as to a significant number of cyclists using the route.

(iii) Despite the significant use, in the period December 2004 to date, only two cyclists were known to have collided with the gate.

In relation to the issue as to whether a reasonable person would take precautions (s 5B(1)(c)), the Further Amended Statement of Claim identified precautions which it is alleged the Club should have taken such as signs, warnings and failure to have a system for control and/or operation of the gate which had it open at an appropriate time.

It was submitted that the plaintiff had not established that the power to take precautions involving the erection of warning signs on the public roadway used as a parking area was delegated to or exercisable by the Club.

Further, the plaintiff had not established that:

(i) The Club had an appreciation of the risk.

(ii) The Club had an appreciation that it had some responsibility to guard against the risk.

(iii) The Council had delegated to the Club any responsibility for the management of the risk.

It was submitted that the Club did not have any appreciation of those matters and had no capacity to take steps to guard against the risk. Accordingly, it could not be said that a reasonable person in the Club's position would have taken the precautions alleged.

In determining whether a reasonable person would take precautions as alleged (s 5B(2)) it was submitted that the Court would need to consider a number of matters including:

(i) The probability that harm would occur if care was not taken.

(ii) The likely seriousness of the harm.

(iii) The burden of taking precautions.

(iv) The social utility of the activity that creates the risk of harm. In that respect, the closure of the carpark was directed at discouraging anti-social behaviour.

(ii) The Plaintiff's Submissions

Mr Campbell's submissions on behalf of the plaintiff were delivered in response to the submissions for the Club: see T 330:1-5.

In his written submissions dated 4 December 2012 he stated that the plaintiff "did not claim that the power to open and close the road was effectively delegated to the Club ...": at [4]. He said that under "an informal arrangement" between the Council and the Club, the Club was "entrusted with, and assumed responsibility for opening and closing the gate". This manner by which the Club undertook the responsibility was the focus of the plaintiff's case: at [4].

The fact that the evidence revealed an absence of any difficulty with Council contractors opening gates at other parks within the Council's municipality was, in effect, relied upon as evidence of what could and ought to have been achieved under the "arrangement" between the Council and the Club: at [5].

As to the Club's performance of its function, it was submitted there was no evidence that the Club could open and close the gate whenever it wanted to. The only evidence was that the arrangement was for closing the gate at 10.00pm and opening it at 5.00am "at the discretion of the Club".

There was, it was contended, evidence as to "an appropriate opening time" contrary to the Club's submission as to there being no evidence of such. Reliance was placed on the evidence analysed above as to Mr Lay's evidence as to the proposition that a 5.00am opening time had been proposed by police: at [7].

The submissions also contended that it ought to have been known to the Club that the gate was extensively used early of a morning by cyclists. There was no evidence from the Club, it was noted, that showed that the Club had given any consideration to "relevant issues" to the opening of the gate let alone of it exercising a discretion as to opening hours.

In these circumstances it was said to have been "impermissible and improper" for the Club to have allowed for "a haphazard system to have been introduced and maintained": at [8].

It had been known to the Club's cleaner that Mr Smith had collided with the gate shortly after 6.00am, and of the plaintiff's collision on the date of the accident.

There was no evidence that the Club had considered at any time "the issue of cycle safety". The failure to do so in determining the function of opening the gate was said to have been a "clear breach by it of its duty to exercise reasonable care" in relation to the obstruction arising from it closing the gate: at [11].

Contrary to the Club's submission, it was argued that there is available evidence to enable a conclusion to be drawn to the effect that the Club "did not exercise any discretion to fix any other opening time in lieu of the 5.00am time provided for": at [12].

The reliance by the Club on the failure by Jamieson Foley in its audit report to deal with the issue of an appropriate opening time for the boom gate was disputed. The review report was written at a time when directional arrows had been placed on the roadway for cyclists to follow. The terms of reference of the audit concerned issues of safety "along the cycleway itself", it was not in regard to other safety issues: at [13].

The plaintiff's submission took issue with the Club's contention that the gate could be closed at any time provided its existence was properly marked or highlighted so its closure could be detected. There was much evidence, it was submitted for the plaintiff, that there was difficulty of the gate being seen when closed. The evidence established how easily the barrier could have been made more visible.

It was also submitted that it was "untenable" for the club to argue that the Club had no appreciation that cyclists used the area. There was direct evidence that the cleaner knew and that he was aware that cyclists had collided with it. Reference was made in this respect to Mr Unicomb's evidence at T 73 at [15].

No evidence was adduced distancing the cleaner from the Club and that it should be fixed with his knowledge: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, 170-1 [23], 172 [24], and 173 [33].

This was said to be especially so in the absence of evidence about the cleaner and his relationship to the Club, instructions to him and the like, all being matters within the Club's knowledge: at [15]. This, it was said, would prove that the risk was, or ought to have been, known to the Club.

The plaintiff disputed the Club's submissions:

(a) That the plaintiff had an obligation to "familiarise" himself with many kilometres of the route so as to be able to identify that the gate might be closed.

(b) That riding through the spiked entrance was an appropriate alternative route.

The plaintiff rejected the Club's submission that the case fell into a "novel" category. There was, it was contended, nothing "novel or exceptional" about imposing a duty of care upon the Club. The Club was an "occupier" of the carpark and used it as an adjunct to its business.

The Club, it was submitted, had "absolute control" over the opening and closing of the gate: at [19].

There were a number of factors, foreseeability, control, vulnerability of the plaintiff and the nature of the task undertaken by the Club, that gave rise to a duty of care in it.

An obstruction across the roadway and constructive knowledge of cyclists' use of it provided, it was submitted, a foundation for a finding of foreseeable risk. The risk was increased by the "haphazard" system for operating the gate, especially for cyclists not accustomed to finding it in the closed position.

The foreseeable risk was clearly "not insignificant": s 5B(1)(b) CLA. An unexpected obstruction to a cyclist was not "insignificant". It was "unthinkable" that one in the position of the Club would not in the circumstances take precautions against the risk of harm created: at [24]. The plaintiff's case is not one arising from a failure from a static state of affairs. The steps to remove the risk were straightforward - namely, to ensure there was no obstruction at a time it otherwise would pose a risk.

The risk of harm, it was contended, was not a low risk. Serious harm can result from a cyclist travelling at speed colliding with an unexpected or unanticipated object.

There was no evidence that the burden of taking straightforward measures to avert the risk was too great. A clear instruction by the Club to the cleaner and follow-up to ensure it was followed was all that was required. Alternatively, if that was not possible, then an alternative existed, namely, a system involving the Council's contractors: at [28].

The above matters, it was submitted, established a beach of duty by the Club.

PART I

CONSIDERATION

I consider that there are a number of difficulties in the plaintiff's case against the Club.

Firstly, on the issue of "duty" the evidence establishes that the scope of any duty owed by the Club could only be a narrow one given:

The limited function allocated to it by the Council;

The lack of precise or specific instructions by the Council to the Club on the subject of opening hours for the boom gate;

The conferral of a broad discretion on the Club as to performance of the function of opening (and closing) the boom gate; and

The Council's retention of control and authority over all aspects concerning the boom gate and its operation.

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.

In addition, there are particular matters relevant to the alleged breach of duty by the Club. There is no evidence that the Club undertook to the Council that it would allocate the opening/closing function of the gate to a particular employee of the Club or to any particular third party. The precise nature of the relationship between the cleaner and the Club was not the subject of evidence. That is relevant, amongst other reasons, to whether the cleaner's knowledge of other incidents involving the gate when closed can be imputed to the Club itself.

Additionally, there is no evidence as to any instructions by the Club or by the Council to the cleaner in relation to the performance of his or her task in operating the boom gate.

On the question of evidence or lack of evidence as addressed in the submissions for the Club and the plaintiff in response, it is not in my opinion sufficient for the plaintiff to establish the fact that there was heavy daily use of the cycleway/boom gate, and that the gate was left in the closed position at the time of the plaintiff's accident, to demonstrate a breach of duty by the Club.

In relation to any visibility problems amounting to a "visual trap" when the gate was closed, the Club cannot be taken, given the limited task allocated to it by the Council, to have been alive or aware of such potential difficulties. Nor would the facts referred to in the preceding paragraph require a response to resolve such difficulties.

There is no evidence that the Club had any responsibility following Mr Smith's accident to investigate the circumstances giving rise to it. The Club was not the body vested with contractual responsibility in relation to risk management. The power or authority to investigate lay with the Council to manage its own structures and amenities that were the subject of public use.

The issue of alleged breach of duty by the Club is in part related to the scope of the Club's duty of care.

The Club's task, as earlier noted, was limited to the daily opening and closing of the boom gate. The fact that the Club's cleaner on a number of occasions was late to work to open the boom gate may be a step towards establishing a breach of duty by the Club, but by itself, in my opinion, is insufficient.

The arrangement between the Council and the Club did not require the Club to put in place, for the purposes of ensuring that the gate was opened by a particular time, what might be called a back-up system - that is, a system to have someone other than the cleaner open the gate if the cleaner was likely to be delayed or was unable to attend to open the gate by a certain time.

Whilst the Club did not call evidence, there was no evidence adduced by the plaintiff to establish that the cause of the plaintiff's accident necessarily amounted to a breach of duty by the Club.

In determining issues of duty of care and its scope and content, proximity, it has been held is not a general determinant: Caltex Refineries (Qld) Pty Ltd, supra, at [95]. In a novel case the proper approach requires, inter alia, an analysis of the facts bearing upon the relationship between the plaintiff and the Club by reference to the "salient factors" affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm.

Additionally, it has been observed:

(i) Duties of care are not owed in the abstract. The scope of the duty "may be more or less expansive depending on the relationship question: Dederer, supra, at [43] per Gummow J.

(ii) The duty of care is not absolute, it is to act reasonably Vairy v Wyong Shire Council (2005) 223 CLR 422 at 459 [118].

In determining whether the Club failed to exercise reasonable care its conduct is to be assessed having regard to its limited task or function as the agent of the Council, the extent of its knowledge or appreciation as to a foreseeable risk in not opening the boom gate by a certain time, and its appreciation or otherwise that such failure would give rise to an unexpected and real risk to a cyclist which he or she would be unlikely to be able to react to in time to avoid a collision.

I have referred earlier to the various factors that inform the nature and extent of the task allocated to and accepted by the Club. All such factors indicate that a limited physical task was assumed by the Club as agent of the Council, devoid of any other specified or identifiable responsibilities. Factors that are relevant in determining the existence of a duty may also be relevant to questions of breach and even causation of loss: Caltex Refineries, supra, per Basten JA at [176]. That is so, as his Honour stated, because the three concepts are interrelated.

The approach to the assessment of relevant factors was set out by his Honour in that case at [177]. The assessment of relevant "factors" in the present case, in my opinion, leads to the conclusion that whilst the Club was subject to a duty of care, the scope of that duty was limited. In the factual circumstances established in evidence, I have concluded that the plaintiff has not established that the Club failed to exercise reasonable care.

PART J

Contributory Negligence

The Council pleaded a defence of contributory negligence in the following terms:

"(a) Failure to keep a proper lookout whilst riding;

(b) Riding in a direction opposite to the marked traffic flow;

(c) Failure to heed the presence of the boom gate and brake or change course to avoid colliding with it;

(d) Failure to ride at a speed and in a manner appropriate to the prevailing conditions;

(e) Attempting to leave the car park via its entrance roadway;

(f) Riding at an excessive speed in all the circumstances."

In cases to which the CLA applies, whether a person has been contributorily negligent, the issue is to be determined in accordance with ss 5R and 5S.

Section 5R provides:

"(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) ...

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

Section 5S provides:

"In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."

In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Tort Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) noted that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's responsibility for his or her own safety.

In Vairy v Wyong Shire Council, supra, at 483 [220], a person owes a duty:

"... not just to look out for himself but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realised."

It has been noted that these remarks are consistent with the provisions of s 5R(1) of the CLA: Consolidated Broken Hill per Ipp JA at [67].

Contributory negligence is to be determined objectively from the facts and circumstances of the case. These include what the plaintiff knew or ought to have known at the time: s 5R(2)(b); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16]; Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [83].

The Council in support of its defence relied, in particular, upon what it asserted was the obviousness of the boom gate in the closed position, its contention being that the plaintiff could not have been maintaining a proper lookout and that at the time of his accident he was proceeding contrary to the "No Exit" signs.

The Council submission was that contributory negligence should be assessed at 100%. It submitted:

"86. The gate was visible, and unambiguously so; the plaintiff should have seen the gate in its closed position, and he has provided no convincing reason why he did not". (Written Submissions dated 27 September 2012)

It was further contended:

"87. He could, had he chosen to do so, used the prescribed exit, as other cyclists, such as Mr Crouchley, had done ..."

I have earlier made findings on the evidence as to the plaintiff's observations, actions and his level of vigilance leading up to the accident, when considering the issue of primary negligence. They include a finding that the plaintiff at all times was maintaining a lookout ahead of him, that he had an expectation that the gate would be open and not closed and that, given the oblique position of the boom gate, there existed a visual ambiguity as to the position of the gate when in the closed position.

The plaintiff's evidence and that of Mr Smith and Mr Unicomb establishes that he was travelling at a speed within an appropriate range for a cyclist approaching the boom gate area. His speed of travel, in other words, was consistent with that of a responsible and highly experienced cyclist.

For the above reasons, I would reject the Council's submission to the effect that the plaintiff had himself to blame for the accident upon the basis that he failed to take reasonable care for his own safety and that he should be held 100% responsible for it.

At common law, a plaintiff is guilty of contributory negligence when he or she exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and who suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman, supra, at [16].

The words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the plaintiff's position": Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [87]; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [14]. Section 5R, it has been observed, reflects "the expectation that, in general people will take as much care for themselves as they expect others to take for them": Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [70] per Ipp JA (Giles JA and Hunt AJA agreeing).

In assessing contributory negligence of an employee in an action against his/her employer specific considerations apply having regard to an employer's obligation to provide a safe system of work. In such a case, the question is whether in all the circumstances the employer's conduct amounted to mere inadvertence, inattention or misjudgment or to negligence: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 at [15]; (1986) 160 CLR 301 at 310.

The circumstances that arise in an employment case can also be relevant when the question of contributory negligence arises in a non-employment context: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [16] per McColl JA with whom Mason P and Beazley JA agreed.

McColl JA in Pollard went on to observe that a finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care for his/her person or property:

"What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [30] per Gleeson CJ; Gummow and Hayne at [16])."

In accordance with the above dicta the conduct of the plaintiff is to be assessed in light of both his own duty or responsibility referred to above and the duty owed by the Council.

The Council, as previously observed, having taken the decision to install the boom gate and to leave its daily operation in the hands of the Club under the "arrangement", remained under a duty to ensure that the system it established continued to provide, on a daily basis, for the safe passage, inter alia, of cyclists who, it was known were frequent users of the cycle route. The Council had not divested its responsibility for operating the gate, it not having contracted out that function on that basis.

The system which the Council established by its arrangement with the Club, depended upon both the Club's cleaner and the Club's discretion. The "system" was a fallible one as events have revealed. In the event of the cleaner failing to attend on any day (for any reason) to open the boom gate, the system carried a foreseeable, and an inherent, risk of failure. This is what occurred in the past as the evidence of Mr Unicomb, Mr Crouchley, Mr Smith and the plaintiff established.

The Council's response to Mr Smith's accident, in particular its inquiry into it, was, for reasons earlier examined, an inadequate one. Those conducting the inquiry, Mr Mable and Mr Lay, concluded that it was a "freak" accident. On the basis of that conclusion, the Council failed to investigate the reason for the boom gate not having been opened and/or the need to examine and implement safeguards against a repetition of the circumstances that led to Mr Smith's accident. As a consequence, apart from the road markings made by Mr Mable after the accident, the "system" for opening and closing the gate remained as it was.

In examining the plaintiff's conduct in that context, the relevant facts include the following matters:

(1) The cycling route which included Riverside Drive followed by the plaintiff on the day of his accident was well-familiar to him. It was one in daily use by large numbers of cyclists.

(2) Cyclists (including the plaintiff) as a matter of long-standing practice used the boom gate access as the exit route to Fraters Avenue. The Council was aware of that practice.

(3) On the evidence, the foreshore route and spiked motor vehicle exit did not represent practical alternative routes for competitive or sporting cyclists such as the plaintiff, Mr Smith, Mr Unicomb, Mr Crouchley.

(4) The plaintiff, through frequent use, had developed an expectation that the boom gate access to Fraters Avenue would be open for early morning use by cyclists.

(5) A combination of that expectation, together with the oblique angle or location of the boom gate when open, resulted in a perceptual trap resulting in a visual ambiguity when the gate was in the closed position.

(6) The circumstances referred to above on the evidence were causally linked to his accident and the collisions by Mr Unicomb, and Mr Smith.

I have concluded that the failure by the Council to have established a safe system that would ensure that the boom gate would not remain closed to early morning cyclists (as by placing the responsibility in that respect upon independent contractors) and the failure by the Council to take steps by warning or implementing modifications (including enhancing the visibility of the gate) later put in place in 2009, materially contributed to the plaintiff's accident.

The assessment of contributory negligence requires consideration in the context of the abovementioned findings as to the Council's responsibility for ensuring that the extension of the cycleway was free of obstruction from a closed boom gate.

Additionally the fact that (a) the boom gate remained closed at a time when it should have been open; (b) the plaintiff's expectation that it would be open, and (c) the very limited time to permit the plaintiff to react and respond to the closed gate, are directly material to the issue as to what, if any, avoidance response was open to the plaintiff in terms of either slowing his cycle or bringing it to a stop before a collision.

There is some evidence that cyclists encountering the boom gate in the closed position were able to apply their brakes but, in particular, in Mr Unicomb's case in 2006, not in time to avoid a collision.

Mr Unicomb encountered the boom gate in the closed position after sunrise, and it resulted in him colliding with it at a slow speed. His evidence was that it was not apparent that the gate was closed until "you were virtually on top of it" (T 86:15-20). He referred to other incidents, pre-sunrise when he encountered the barrier and stopped, the conditions for cycling at that time it would appear were somewhat different with a different level of pre-dawn light likely to have had a bearing on his cycling speed.

The plaintiff's case is that he did not have time to brake at all before the collision as he said he was "on top of it" immediately before impact. The plaintiff's failure in that regard, to have seen the closed gate in time to brake and avoid a collision, upon a full and proper consideration of the evidence, in my assessment could not be considered as representing a major departure from the standard of care required for his own safety. On my assessment the Council's omissions and failure to take reasonable care were the dominant cause of the plaintiff's accident. The plaintiff was by reason of its omissions and failure placed in an acute or an extreme situation of urgency. The plaintiff's failure to react in time to brake to avoid or reduce the force of impact, properly assessed, constitutes, in my opinion, a departure from the applicable standard at the low end of the range.

On that basis, and in all the circumstances of the case, I determine the respective liabilities as follows:

The Council: 80%

The plaintiff: 20%

Accordingly, for the reasons and on the findings and conclusions set out above, I have determined as follows:

(1) That a verdict and judgment be entered in favour of the plaintiff against the first defendant, Rockdale City Council in the amount of $928,000.

(2) That judgment be entered in favour of the second defendant, St George Sailing Club.

(3) I grant leave to the parties to make application in respect of costs of the proceedings and other ancillary orders.

I have earlier noted in paragraph [7] to [10], that cross claims were filed in these proceedings on behalf of the Council and the Club.

Liability having been determined in favour of the plaintiff against the Council and liability in the proceedings having been determined in favour of the Club against the plaintiff, the issue of contribution and indemnity raised by the cross claims does not arise.

**********

Decision last updated: 27 September 2013

Medium Neutral Citation:	Simmons v Rockdale City Council [2013] NSWSC 1431
Hearing dates:	24-28 September 2012; 12 October 2012; 22 November 2012
Decision date:	27 September 2013
Jurisdiction:	Common Law
Before:	Hall J
Decision:	(1) That a verdict and judgment be entered in favour of the plaintiff against the first defendant, Rockdale City Council in the amount of $928,000. (2) That judgment be entered in favour of the second defendant, St George Sailing Club. (3) I grant leave to the parties to make application in respect of costs of the proceedings and other ancillary orders.
Catchwords:	TORTS - negligence - duty of care of local government authority to sporting cyclist exiting from a cycleway - early morning collision with closed boom gate customarily placed in the open position by day under an informal arrangement between the council and a neighbouring sailing club - boom gate constructed to exclude/prevent anti-social driving of vehicles in carpark - arrangement between Council and Club for Club to close and open the boom gate - the arrangement did not provide for a fixed timetable specifying mandatory opening times - overall discretion as to closing/opening times conferred upon the Club under its arrangement with Council - duty of care - duty in the Council in respect of cyclists as known users of the cycleway - BREACH OF DUTY - breach of duty by the Council - high level of cycle use known to Council and use of boom gate entrance as an exit - previous accident - failure to investigate and identify visual perception problems when gate closed - failure to modify gate to enhance its visibility as occurred following the accident - failure to re route the cycleway exit as undertaken subsequent to accident - failures by Council causally contributed to the plaintiff's cycling accident - Club not in breach of its duty of care having regard to the limited scope of its duty and the discretionary arrangement it had with the Council - CAUSATION - causal nexus between Council arrangement with the Club and failure to investigate and adopt available preventative measures which measures, if adopted, were likely to have prevented the plaintiff's accident - CIVIL LIABILITY ACT 2002 - ss 5F and 5G "obvious risk" - no obvious risk from cycling, s 5P - taking "precautions against a risk of harm" - a matter to be considered objectively by reference to the circumstances - factors in s 5B(2) did not outweigh those in s 5B(1); ss 5K and 57 - "Dangerous recreational activity" - no evidence of plaintiff's cycling constituting such a dangerous activity - s 42 - Council failed to adduce evidence to establish applicability of s 42(a) and (b) - Section 43A: "special statutory powers" - whether Council had exercised or failed to exercise a "special statutory power" under provisions of the Roads Act 1993 - sections 87, 114 and 115 of the Act - the failure to open the boom gate, or leaving the boom gate in the closed position was not the exercise or failure to exercise a special statutory power within s 43A
Legislation Cited:	Civil Liability Act 2002 Roads Act 1993 Transport Administration Act 1988
Cases Cited:	Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 Bevillesta t/as Top Ryde Shopping Centre v Liberty International Insurance Company [2009] NSWCA 16 Brodie v Singleton Shire Council (2001) 206 CLR 512 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 Caparo Industries Plc v Dickman [1990] 2 AC 605 Carey v Lake Macquarie City Council [2007] NSWCA 4 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Tort Reports 81-815 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Fallas v Mourlas [2006] NSWCA 32 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Kuhl v Zurich Financial Services [2011] 243 CLR 361 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 Romeo (1998) 192 CLR 431 Romeo v Conservation Commission (NT) [1998] HCA 5 Sullivan v Moody (2001) 207 CLR 562 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Vairy v Wyong Shire Council [2005] HCA 62 at [220]; (2005) 223 CLR 422 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wyong Shire Council v Shirt [1980] HCA 12
Category:	Principal judgment
Parties:	Alex Simmons (Plaintiff) Rockdale City Council (First Defendant) St George Sailing Club (Second Defendant)
Representation:	Counsel: D Campbell SC; J Sheller (Plaintiff) G Watson SC; N Chen (First Defendant) P Morris SC (Second Defendant) Solicitors: G Walsh & Co (Plaintiff) TressCox Lawyers (First Defendant) Moray & Agnew (Second Defendant)
File Number(s):	2008/289194