Moore v Ballina Shire Council [2022] NSWDC 691

District Court New South Wales

Medium Neutral Citation: Moore v Ballina Shire Council [2022] NSWDC 691 Hearing dates: 14, 15 & 16 November 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Civil Before: Priestley SC, DCJ Decision: See [89] Catchwords: NEGLIGENCE – Breach – Duty of care Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Weber v Greater Hume Shire Council [2019] NSWCA 74 Strong v Woolworths [2012] HCA 5 Texts Cited: Nil Category: Principal judgment Parties: Plaintiff (Diane Margaret Moore) Defendant (Ballina Shire Council) Representation: Counsel: Hampson for the Plaintiff Hannah for the Defendant

Solicitors: Love for the Plaintiff Thomas for the Defendant File Number(s): 2022/00076743 Publication restriction: Unrestricted

JUDGMENT

Overview 1. On 27 August 2020 Diana Moore, the plaintiff, was riding her electric bicycle upon a shared pathway designated to be used by both pedestrians and cyclists ("the pathway"). There were signs in the area indicating that people using the pathway should keep to the left thereby permitting the path to be used by people travelling in both directions whether they be travelling on foot or by bicycle. The pathway was 2.7m wide. The pathway is located within the bounds of the area of the defendant, the Ballina Shire Council ("the Council"). There is no issue in this dispute as to the Council relevantly being the occupier, that is, the entity with the management and control, of the pathway. 2. The incident the subject of these proceedings occurred shortly north of the Missingham bridge with the plaintiff travelling in an easterly direction upon the pathway that would take her along the north wall, that being the break wall on the northern side of the Richmond River. 3. The plaintiff had left her home approximately 15 minutes before the incident. She described the route by which she had come to be at the point of the incident. That description was somewhat confused, but there is no issue about it, and any confusion is attributable to her being a nervous witness. Shortly prior to the incident she was travelling east along this shared pathway and observed that there were two pedestrians walking in front of her. 4. In broad terms and before descending into the detail of what is in dispute the plaintiff sought to overtake the pedestrians that were walking in front of her by moving to the right-hand side of the pathway. One of the pedestrians walking in front of the plaintiff being the one closer to the middle of the pathway moved firstly to the left upon hearing the plaintiff ring her bell and then moved to the right before then moving to the left again. The move to the right caused some concern on the part of the plaintiff. Just how it impacted on her control of the bicycle is a matter in issue. Did she maintain her intended course or did the pedestrian's actions cause her to "swerve" to miss the pedestrian, so as to be the real cause of her accident. On the plaintiff's case she continued on her intended course and found herself in close proximity to a bollard situated on what was for her the right-hand side of the pathway. In order to avoid this bollard, the plaintiff swerved to the right and closer to the rocks forming the north wall, placing her on uneven ground and heading for rocks, so that she sought to re-join the path and in turning left to do so, the bicycle went out from beneath her. 5. The allegations of the plaintiff include but are not limited to that the Council was aware of what the plaintiff alleges is a risk of a person being injured by either colliding with the bollard or by attempting to avoid colliding with the bollard and that the Council breached its duty of care by failing to remove the bollard. 6. An agreed tender bundle containing documents relied on by both parties was tendered by consent and was marked exhibit A. The exhibit will be referred to as "the bundle" and by its page numbers. In opening the plaintiff referred to documents in the bundle she said showed the Council to know that where the single bollard was in 2020 there had formerly been two bollards, that the Council had been aware that one bollard had been damaged and attended to remove the sharp protruding metal that remained, with the result that only one bollard remained. The documentary evidence of this is at page 180 of the bundle being a Council record referred to as a "Customer Request Management enquiry" ("CRM") and showing notice of the damaged bollard was received on 8 December 2016. The following pages show that the work was completed on 8 December 2016. Those records show the task to remedy the damage was opened at 10.55am and completed at 2.15pm (p181). The plaintiff further relied on a document which was a road safety audit prepared for the Council in June 2017. At page 233 of the bundle this audit report, completed six months after the action taken in relation to the damaged bollard, reported as follows in relation to the remaining bollard which is the focus of this case: "There is only one bollard at the southern end of the northern break wall which is unlikely to slow cyclists and may result in a cyclist colliding with a pedestrian at speed". 1. In the audit report, next to each entry is a risk rating determined using tables 1 to 4 in the preceding pages of the report. The risk level relevant to this remaining bollard in terms of frequency was said to be occasional which means once every 5 to 10 years; in terms of severity, it was listed as minor which indicates likely minor injuries such as a low-speed vehicle collision or a cyclist falls from a bike at low speed and stating the risk as medium. By the tables the medium risk rating is a function of the severity as being minor, and frequency being occasional. The suggested treatment approach for matters of medium risk is said to be in table 4 "should be corrected or the risk significantly reduced if the treatment cost is modest but not high". 2. There is a photograph of what is the subject of this dispute at page 260 of the bundle and is photograph 017. That depicts a single bollard on the right-hand side of the path looking east. The picture also gives a good image of how the area surrounding the path narrows as you proceed east but with the path remaining the same width. There is one line on either side of the path which might be termed as fog lines as that term is used with roadways and which indicate the edge of the path. The fogline is distinctly within the pathway. The second bollard parallel to the remaining bollard can be envisaged and would clearly serve a purpose of prohibiting larger vehicles proceeding down the shared pathway. Without the bollard that has been removed, that purpose is plainly no longer served, and there was no dispute about that. The evidence of the Council engineer sought to suggest that the remaining bollard served some purpose of slowing cyclists although not as effectively as with two bollards. 3. The chronology therefore is of the bollard being damaged and removed by 8 December 2016, the audit setting out the above in June 2017 and then the incident involving the plaintiff in August 2020. 4. The resolution of this dispute requires consideration of the various provisions of the Civil Liability Act (CLA). In terms of the provisions of the CLA the plaintiff must establish the following matters: 1. The risk of harm was foreseeable; and that risk was not insignificant; and a reasonable person in the Council's position would have taken precautions against that risk of harm; section 5B. 2. Subsection 2 of that section provides the court is to consider four matters which are not exhaustive in determining whether a reasonable person would have taken precautions against a risk of harm, and they are: 1. The probability that the harm would occur if care were not taken; 2. The likely seriousness of the harm; 3. The burden of taking precautions to avoid the risk of harm; 4. The social utility of the activity that creates the risk of harm. 1. The plaintiff's argument is that there was a risk of harm of someone on a bicycle either colliding with the bollard or having an accident because of trying to avoid a collision with the bollard (par 6(b) of the Amended Statement of Claim) and that risk materialised in this case. The duty of care is taken on by the Council because it had a responsibility for the pathway, and it was breached by leaving the bollard there despite knowing that it ought to be removed and failing removing it they should have made it more obvious. 2. The Council argues that a proper application of s5B shows no negligence, or breach of duty of care. Predominantly the Council relies on s5B(2) and in particular the social utility of the activity that creates the harm. That is, the benefit of the bollard is said to justify or outweigh any risk of harm it creates. 3. The Council further argues that the risk was obvious (s5F CLA). The plaintiff says it was not obvious to a reasonable person in the plaintiff's position and that the plaintiff acted as a reasonable user of the path riding her bike in a reasonable fashion. 4. As to contributory negligence the plaintiff says there was none as she was simply riding her bike in a reasonable fashion. The plaintiff's case is that she rang her bell, attempted to pass the pedestrians in a normal manner and found herself confronted with the bollard. The Council says that the bollard was obvious and should have been seen if not in fact was seen. 5. In opening the Council identified as being an issue whether the bollard in fact was the cause of the accident to begin with; s5D, CLA. The suggestion is the cause of the incident was the two pedestrians who, the Council argue, caused the plaintiff to "swerve", and or obscured the bollard from the plaintiff's vision. 6. Lastly, the defendant pleads section 42 CLA, and asserts in effect that there was no budget allocation of resources to address the risk asserted by the plaintiff. 7. In order to consider this range of issues, it first needs to be found as a matter of fact what actually happened in terms of how the bike came to be on the ground.