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. The facts 1. The plaintiff had set out on her bike ride with her husband who rides a non-electric bike. At the time of the incident Mr Moore was in front of both the plaintiff and the pedestrians in front of her and in front of, that is, past, or to the east of, the bollard. Mr Moore did not witness the incident. The plaintiff's evidence in that regard comes entirely from herself. There was no evidence from the two pedestrians the plaintiff overtook just prior to the incident. 2. The evidence in chief of the plaintiff included the following: 1. She was riding a 17-inch female style e-cruise bike that was low set so she could swing her legs through. 2. Peddling engages the motor as well as the pushing of a button. The motor will stop when the brakes are put on. If you stop peddling the bike will still go. 3. She was 63 at the time of the incident and had the bike since she was 60 it being a sixtieth birthday present. She had not ridden for a couple of months prior to the incident. She would ride once or twice a week on average. 4. She had travelled the pathway before which she said was a shared pathway for pedestrians and cyclists, and she also referred to dog walkers. She had ridden the pathway no more than 10 to 15 times before with the majority of them being in the other direction; she had travelled in the direction she was travelling maybe six or seven times. 5. She said there were always pedestrians on that pathway. She described how she dealt with pedestrians on prior occasions by slowing down and ringing her bell, observing what pedestrians are doing and veering right to stay on the pathway and to try to give at least a metre distance between her and the pedestrian. 6. On the day in question and before the incident she had encountered one or two pedestrians and when asked what she had done when she encountered those pedestrians said "well, I always slow down and ring my bell, and overtake on the right. With good distance between". 7. From the Shaws Bay car park, which, based on the photo at page 246 of the bundle, is a short distance before where the incident occurred, she was cycling at a slow pace. Her husband was ahead of her. She describes the path having a few curves in it. As she came around a bend she observed two pedestrians at a distance in front of her and further ahead again she could see her husband with a group of pedestrians about 80 to 100 m ahead of her. 8. The two pedestrians in front of her that is, not with her husband but closer to her, she described as walking in the middle of the path. They were average height may be late 50s and early 60s and were a male and female. The female was on the left. They were wearing casual beigey coloured clothes. She described them as not walking fast, strolling in an easterly direction away from her. She described them as having a social slow walk. She said she was watching them to see what they were doing so that she could overtake. 9. She said that she first saw them when they were about 15 m ahead of her and she rang her bell. She observed what they were doing so she could navigate around to the right. She said the lady just took the sideward step and stood on the side of the path and was stationary. The man moved to stand adjacent to the side of the other pedestrian, and then he did a little shuffle to the right and then shuffled to the left again. 10. She said when the man moved left and was then stationary. She went to proceed around him slowly (to the right) but prior to that she was using her brakes because she was slowing down and felt like she was almost stopped. It was when the man moved to the left the final time that the bollard was exposed to her. When asked how far she was from the bollard when she saw it she said "maybe 1 or 2 metres". She said, "it was just happened so quickly, I'm sorry, it happened so quickly I couldn't judge the distance at that time but if I try to recall it may be 1 to 2 metres max". 11. When she saw the bollard, she said she had to make a quick judgement call, to hit the bollard or to try and avoid it and continue to go around it on the right which was her initial decision and is what she did. 12. She said she went right and as she went right "it-the brick wall-the rock wall-the retaining wall was in front of me". She said she felt like she had to do a sharp left hand turn behind the bollard otherwise she would hit the brick wall, the rock wall. She described the wall as being large chunky boulders. When she saw all those boulders, she feared she was going to hit them if she continued in the way the bike was trying to navigate the bollard around the bollard and she did a left-hand turn steering the bike left. It was when she steered the bike left that "the bike just came out from under me" and she had a full impact fall on her hip on the concrete path. 13. The plaintiff was shown 2 photographs being pages 57 and 58 of the bundle also referred to as photos D and E respectively. Her evidence as to these photos was that photo D showed the path she was cycling on that day. It shows the curve in the pathway and the bollard she tried to navigate "where I navigated around unsuccessfully". She was riding towards camera. 14. Photograph E shows the direction that she was cycling from, and also the bollard. Her evidence was that it showed the bollard that she navigated. She said she cycled right around that bollard and saw those boulders. She said the area fell away a little bit to the rocks as well. 15. The plaintiff depicted where it was that she started to "veer" to the right on a separate copy of photo E; I note the word "veer" was not the plaintiff's word, although she adopted it in her answer; her unprompted word was "navigate", and "veer" was used in reference to earlier occasions. Nothing turns on this. This marking was with the letter "A", at the point of navigating to the right. She then indicated with an arrow her path around the bollard. Then with a B was marked where she ended up on the path after her fall. She also marked with P1 and P2 where the pedestrians she described were when she first saw them. This evidence, which became exhibits B1 and B2, were not very helpful in terms of where the starting point of the plaintiff first moving to the right is concerned, as it is on a point on the right of the path; the other markings are consistent with her oral evidence. I do not take the inconsistency with marking "A" to be adverse to the plaintiff, there really is no dispute that she started that manoeuvre from the left side of the path, and the marking is accounted for by her degree of anxiety, and the fact she was, whilst likely forewarned, still put somewhat "on the spot" to mark the photo whilst in the witness box. 16. She saw the two yellow lines on either side of the path prior to seeing the two pedestrians. She said to her they signify the edge of the pathway. 17. She said she first saw the bollard when the gentleman finally moved to his left to stand beside the lady. 18. She chose to pass the pedestrians on the right-hand side because it is the normal procedure to pass pedestrians on the right on a shared pathway. 19. When asked why she did not just stop when she saw the bollard she said because there wasn't time, she was too close to the bollard. 20. When asked why she didn't keep going on the verge she said because it was narrow and uneven and had a slight gradient toward the rock and because of the trajectory she had taken to the right to avoid the bollard. 1. In cross examination the plaintiff was thoroughly challenged about a range of matters and a considerable number of permutations as to what might have occurred were put to her. 2. The first of these matters was the proposition that the bollard was obvious and that it should have been seen by the plaintiff at the time the male pedestrian first moved to the left. The plaintiff answered that the male pedestrian took only a small step to the left (the implication being, I infer, that he may still be obscuring the bollard) and that she was focused on the male pedestrian; T42 (NB: transcript references are approximate, and the page numbers vary between the electronic and hard copy versions). Her earlier evidence was that the pedestrian couple took up most of the pathway. The plaintiff later said that even after the gentleman had moved back to the right, he was in the middle but she did not know if it was towards the right which I take to mean the right side of the path. 3. Another proposition pursued in cross examination was the plaintiff steered right to get around the man not the bollard. The plaintiff agreed that steering was to avoid the pedestrian. She then agreed that it was only after the man stepped left that she saw the bollard. On the evidence the plaintiff is plainly by this time travelling to the right as opposed to directly down the path and so is getting closer to the edge of the path. 4. What was being put by Mr Hanna, counsel for the Council, was that the bollard had nothing to do with the incident, and that the incident was due to the fact that the plaintiff was travelling right to avoid the pedestrian. The proposition was put in terms of the plaintiff swerving right to avoid the man. On more than one occasion this case theory of the Council was thwarted by the simple factual evidence given by the plaintiff on more than one occasion which I will set out below. What the Council was legitimately trying to pursue was the theory that it was the pedestrian that caused the accident and not the bollard. 5. Further on in the cross examination this theory was returned to in a different complexion by the suggestion that the plaintiff was already steering around the bollard by the time that the plaintiff saw the bollard. The theory continues that the plaintiff just kept going right and then around the bollard which I interpret to be suggesting that the existence of the bollard made no difference. 6. Lastly it was suggested to the plaintiff that having made it past the bollard without hitting it there was no need for her to turn to the left in the way that she did but she could have continued in a straight line off the pathway along the grassy area. 7. In my view there are a number of passages in the cross examination where the plaintiff gives evidence which I accept, which clearly sets out what has occurred here, and consistent with her evidence in chief. Before referring to those passages there are two points to make. The first is to comment on the plaintiff's demeanour. The plaintiff was plainly stressed in the witness box and somewhat overawed by the experience of giving evidence. She stated she felt stressed and that she had a lot of stress, I infer, due to the incident she was now being asked questions about. At one point a break was taken because she was distressed. In a matter of this type that is somewhat unusual. Having observed the plaintiff in the witness box for a reasonable period of time I formed the view that she was a very earnest witness who made appropriate concessions and was doing her best to give her best recollection of events. I do not consider that she was seeking to be evasive in any way by her reference to stress. I consider her to be an honest witness. I also consider her to be accurate, given the consistency of her evidence given in cross examination to that given in chief, and the way she was able to clearly rebut the propositions being put to her in cross examination. 8. The second point is that part of the confusion that emerged from time to time in the cross examination was due to the quite legitimate approach of Mr Hanna to try and break down into as small a pieces as possible, the events leading up to the incident. In some circumstances that can be very instructive. In this case however I am of the view that approach did not yield any benefit to the Council's cause. Findings of fact as to the incident 1. What has happened here is plain, as demonstrated by the following passages of the plaintiff's evidence which I accept. The plaintiff was following the pathway which is a shared pathway for bicycles and people who might be walking or running and may have strollers or dogs. The path as can be seen by exhibit C and B2 and B1 is not particularly wide; a diagram at p66 of the bundle indicates it is 2.7 metres wide, which is from the plaintiff's expert material and was in fact referred to by the Council. The plaintiff was coming up behind two people walking together and sounded her bell at an appropriate time which they plainly heard as they moved to the left. The male pedestrian having moved left then moved slightly to the right causing the plaintiff very reasonably to focus upon his conduct. He then moves to the left a second time. It needs to be borne in mind that these movements left and right and left again are not of great dimension because he seems to largely have remained in approximately the middle of the path, which would leave only about 1.35m to the right edge of the path, and less than that to the bollard. The conduct of the plaintiff in focusing upon him in my view was entirely sensible to ensure that he does not again move to the right where she intends to overtake. It is only at that point having in a controlled fashion steered, or in her words "navigated" or in the adopted word "veered" herself over to the right to go past him that she sees the bollard. I accept the plaintiff's evidence that she had to make an immediate decision as to whether to hit the bollard or to seek to avoid it, the latter necessarily meaning a change of course. The existence of the bollard has caused her to go further to the right and off the path altogether and onto the grass verge where it can plainly be seen by the photographic evidence there is grass and not concrete which the plaintiff said was uneven, an observation I accept given the appearance from the photographs of lumpy grass and some dead grass and some not dead grass. Her evidence of large rocks in close proximity is also plainly correct. That somebody would seek to turn left to re-join the pathway as opposed to travelling further down along the grass verge is something I consider very sensible and very likely to be the reaction of any reasonable person. 2. The finding that I make is that the accident occurred following the course of events just set out. As the plaintiff said, on re-joining the path, so going from uneven to even ground, and having steered sharply to the left for the reasons just described, "the bike just came out from under me". Had the bollard not been there, there would not have been the need to go off the path and there would not have been the need to then turn to the left which is when the accident then occurred. The presence of the pedestrians caused the plaintiff to navigate a course to the right; the deviation from that course was caused by the presence of the bollard, which until she had passed the pedestrians was not visible to her due to a combination of the presence of the male pedestrian impeding her view, and his behaviour causing her to focus on him more than would ordinarily be the case. In doing so, the plaintiff acted reasonably. These findings also have the consequence that the bollard was not an obvious risk. 3. These findings are supported by the following particular answers given in cross examination. At T41.24 she said: "I rang my bell well in advance to indicate to me that they had heard the bell because the lady moved to the left of the path and stood and the gentleman then moved a little bit left then he moved right and then he moved left so I did not need to ring my bell I believe a second time when I was really close to them because they were moving to indicate to me that they had heard my bell and that I needed to overtake or to pass". 1. Then at T45 was this question-and-answer sequence: Q. I'm putting to you that it wasn't until after the man stepped left for the second time that you saw the bollard A that's correct Q. But at that point you were already steering right weren't you? A I had-I was moving to the right-hand side of the path to overtake the pedestrian which I thought was a safe passage because I had not sighted the bollard previously and do I need to explain a little bit more or-no? So then when I saw the bollard, I had to make the judgement to either hit it or take a sharp trajectory to go around it. 1. Then at T46 it was put to the plaintiff that she had swerved right to avoid the man and she replied: I didn't swerve right to avoid the man. I was taking a slow cycle to attempt to go around them to the right. I had to take a sharp turn to avoid the bollard which led me on the grass in front of the rocks which-sorry, not landed me there. I landed behind the bollard but the sharper cycle manoeuvre was when I sighted the bollard not when I saw the man. I was already heading towards that right-hand side of the path observing the man's movement, allowing, at least trying-my normal practice is to allow a metre, if I can between when I'm overtaking a pedestrian on my bike and I thought-I believed I had enough room on what was left of the concrete path to safely pass the pedestrian on the right and it wasn't until I passed him that the bollard was presented in front of me about a metre maybe two and I then had to do a sharp manoeuvre right to avoid the bollard which led me facing the rocks. 1. At T51 the plaintiff was asked that when she steered right to avoid the man, he then stepped left which is a reference to the second step to the left and the question was that he stepped left after you were already steering right and she answered: Yes because I was gradually going to the right-hand side of the path as I've noted-stated before to overtake him safely on the right and it wasn't until he moved the final time to his left that the bollard was exposed and then it was right in front of me so I had no option other than to go into it or take a sharper right manoeuvre with my bike to try and get around it 1. Then at T53 the plaintiff agreed she saw the bollard when the man stepped left for the final time. The proposition sought to be established which was not established in my view was that the plaintiff was already steering around the bollard by the time she saw it. In answer to that proposition at T53.50 the plaintiff stated: No. I wasn't steering around the bollard by the time I saw it. I saw the bollard which made me steer around it. I had no option. I had to either steer around it or hit it. 1. In my view that is perhaps the most succinct statement of what has occurred here. In simple terms she went to go around the pedestrians, she was focusing on the male pedestrian because of his moving to the right and as she went around him only then saw the bollard and was on a course heading directly to it causing her to then further steer to the right to avoid the bollard, placing her on the uneven, unpaved area near the rocks from which she then quite logically, understandably and reasonably steered back onto the left so as to be safe from the rocks and back onto the even concreted pathway, and in the process of doing that, the wheels went from under her. On this lay evidence that was a result of going from one surface to another and needing to go sharply left to get back on the paved surface so as to avoid the danger of the uneven surface and the rocks all of which she had been confronted with by reason of the need to go around the bollard. 2. I note that at T50.34 the plaintiff said that if the man had not moved left she would not have hit him because she would have stopped. This suggests she could have done that in any event. At one point the Council put that she could have stopped, rather than hit, or seek to avoid, the bollard. To avoid any doubt as to this, the question of stopping does not arise because the male pedestrian did in fact move left, so that the plaintiff was able to proceed to the right and it was only then that she found she had to negotiate the bollard. In other words, the evidence concerning stopping is in relation to the male pedestrian, not the bollard. 3. It was put to the plaintiff that by the time the man had first stepped left they both would be on the left-hand half of the pathway and she answered that the man was taking up some of the middle of the pathway as well. It was put to her that it was not her intention to slow down and her reply, consistent with her earlier evidence of going very slowly was that she was already slowing down. She said she did not believe she was pedalling and that she might have done a slight brake. When pressed she said she remembered doing that, that is braking. The plaintiff was challenged that she had not said that earlier in chief. What she is meant to have said was not then put to her. In fact, in her evidence in chief she said just that, at T24 where she said: Q. You've described what the pedestrians were doing, what did you then do? A. When the man moved left and was then stationary, I went to proceed around him, slowly, but prior to that I was using my brakes because I was slowing down, I was almost ‑ I felt like I was almost stopped, um. And when he moved to the left, on the final time, that's when the bollard was exposed to me. 1. In my view nothing turns on this bicycle being an electric bike. Ultimately there was no submission to that effect though the cross examination certainly canvassed the prospect. The evidence of the plaintiff which I accept, was of travelling slowly and indeed under brakes at the time immediately preceding the incident. 2. The plaintiff called the husband as a witness. He did not witness the accident. His evidence was corroborative of the general circumstances of their bike ride together and the circumstances in which it occurred. The evidence of the Council 1. The Council called evidence from Paul Busmanis, the manager of engineering works of the Council. He has a Bachelor of Engineering degree. His role in the Council is to look after construction and maintenance or transport infrastructure throughout the Council and the pathway the subject of the litigation is within his area of responsibility. He described the pathway as a connecting route from Ballina CBD through to the coastal reserve strip heading towards Lennox Head. 2. The key parts of his evidence were as follows: 1. The primary reason for bollards on pathways is to prohibit vehicles from getting onto the paths and also to control the speed of cyclists on shared paths so as to maintain the safety in the thoroughfare of the users of the path. 2. In respect of the particular bollards in question here his evidence was that it was to prohibit the speed and excessive speed of cyclists in particular and to prohibit any vehicles that might want to get from the adjacent reserve onto that path area. 3. He said the bollard was installed to the standards applicable at the time of construction. Generally, this includes the bollard painted brightly and they need to be at least 1 m high so they can be clearly visible. 4. As to maintenance and repair he described the Council system. The system functions by responding to customer requests for maintenance which he called the CRM system. A report is made to the Council from somebody which is recorded by staff in the system and depending on what the issue is it will get redirected to the particular section in Council responsible for inspecting without "our staff" (presumably engineering staff) and the matter becomes an assessment and if deemed necessary it becomes an operational maintenance activity. 5. He accepted that the Council manages the reserve area and the shared pathway and lighting. 6. The assessment of the complaint is directed to field staff 7. He was asked about the allocation of resources and stated that there are separate kinds of budgets for different aspects of Council infrastructure such as footpaths and roads. There are capital works budgets as well as operation and maintenance budgets. The operation and maintenance budgets are separated into various facility types. The budget is allocated by the Council. In the period 2015 through to 2020 he said the budget set by counsel for footpath maintenance was in 2018 approximately $180,000 or just over and in the current financial year it had crept up to approximately $200,000. 8. He said historically the budget was spent if not gone over budget. He said that his recollection was that in the financial year 2018 and 2019 they were "on the money in terms of meeting budget" but the couple of years after that were over budget. 9. He said it was not possible to investigate every path every year. He said with operation and maintenance the response is reactionary which I take to be the CRM system but then added that there were some operational matters that they dealt with such as line marking that would be known to need to be done. 10. He was taken to page 180 of the bundle which was a note relating to 8 December 2016. This is a document which records the removal of the bollard which was adjacent to the bollard in question in this case being the one on the other side, or northern side of the path. The evidence was that a complaint was lodged with the CRM, it appeared for some reason a bollard had been removed and the remnants of that was reported to Council and staff went to attend the site to make it safe. They cleaned off the fragments that were protruding and made it safe. He was asked why the remaining bollard was left in place and said it was kept in place because of its requirement or interest to make sure that the behaviour of the pathway users was complied with saying "and you know velocities of cycles travelling along the path would be-would be slow down" 11. He was asked how that would slow down somebody travelling on the left-hand side (travelling east) or in other words the north side, that is, the side where there was no longer a bollard and his answer was "just the observation in both directions. Particularly if there are cycles coming in the opposite direction. There's a manoeuvre where, you know, cyclist generally the behaviour is slow down because of obstacles". 12. He was taken to page 162 of the bundle which is photo 17. His attention was drawn to the sign on the left or North side of the path. He commented about the combination of the bollard with that sign and said it adds to a notification to users of the path network that there is a change of characteristic and potentially change the way you behave on that path. The change of characteristic was the transition from a wider broader reserve area with an open path heading to a more confined path with lighting and fencing on one side and a rock wall on the other for a fair length in front. I would note that there is no suggestion by anybody that the pathway itself narrows. 13. He then was asked if that was why the bollard was put there in the first place and said it would have been yes. That was at T77. Yet at T72 he said the purpose of the bollards at that particular spot was to prohibit the speed and excessive speed of cyclists and to prohibit vehicles going from the reserve onto the path. There has been a variation in his evidence when still giving evidence in chief, which is most unpersuasive, and even more so when this answer simply makes no sense for the cycles travelling west, so from the narrower area to the broader reserve area, which happens to be the direction of travel for the cycles most affected by the now single bollard. 14. Next he was asked about a road safety audit which was completed in June 2017. That audit is at page 124 and following of the bundle. At page 135 there is the detail relating to photograph 17 which has been set out above together. The report was obtained with money from a state government grant to give a snapshot of the entire network of the pathway. 15. The evidence appeared to seek to draw a distinction between problems reported under the CRM system and problems identified by the audit on the basis that the audit went out to find problems. It may well be a significant issue in this case as to whether that is truly a distinction or whether, as argued by the plaintiff, the audit notifies the Council of matters requiring investigation and maintenance and repair in the same way as being notified by a customer under the CRM system. 16. When asked what the Council did with the report he said they looked at the actions for what was categorised as "high" risk and that normally they are recommended to be undertaken and they would have been enacted upon and dealt with the high risk activities. Some high risk matters were not fixable. Some minor fencing was also dealt with in his recollection. 17. He was then taken to page 135 and the reference to photo 17 being the subject bollard in these proceedings and the question was at T78: Q: It is described as having "occasional frequency minor severity and medium risk", were risks of that nature dealt with as a result of this report?. A: Not necessarily. We have to allocate our resources and budgets to high risk activities and that's generally where we target our activities and the medium risk activities wouldn't necessarily be dealt with unless there was some other way of doing that cost effectively. 1. The evidence was of the response to the report occurring in the 2017/2018 financial year which was a year when the Council would have gone slightly over budget. 2. Still in evidence in chief, Mr Busmanis agreed that the report made no recommended solution for the danger reported. With respect it is fairly obvious that the solution so far as the bollard is concerned is to remove it. The audit says it should be corrected if the treatment cost is moderate but not high. The agreed position was that the cost to remove the bollard was low. 3. There was then evidence of how the result of an incident occurring lifts the rating of a matter from a risk management point of view and how it affects the Council's priorities as far as resource allocation goes. The answer is worth setting out in full and is at T 79.42: We would basically look at it from a risk management point of view and look at the-at the consequences and also the likelihood of it happening and as a result of an incident occurring there that would lift-lift the rating or ranking of that incident as being more likely because that actually has been an incident. A lot of the assessment in the report is based on the engineers assessing the likelihood of something happening, but when we've actually got an incident that does occur that would-would rank it higher because it actually has occurred, and we would probably shift it to a high, high category 1. Mr Busmanis then agreed that enables resources to be allocated, and in a follow up leading question added, if they were available. 2. When asked why a new second bollard was not installed the answer was that there was felt to be no need for that any longer. Notably the answer was not due to a lack of allocated budget funds. 3. He gave evidence that in his experience bollards are successful in slowing cyclists on the route particularly a shared path route and that he realised they are an obstacle in the path but they are clearly observable. 1. The following matters emerged from cross examination: 1. The single bollard that remained after the removal of the other bollard in 2016 did not achieve the purpose of preventing access of vehicles to the north wall. 2. There is nothing in the standards currently or previously concerning the desirability or otherwise of inserting a single bollard on one side of the path in the way the remaining bollard now stood. 3. It was put to the witness that once the first bollard had been removed the single bollard did not comply with any particular standard about location of bollards. In light of the previous concession, one would think the answer to that question must be yes but instead the answer was a qualified one at T82.13, namely "not for prohibition of vehicles" so the follow-up question was; "nor for slowing cyclists?". There followed what was in my view a non-responsive answer. The answer given was: In my previous comments, the view was that with the single bollard there plus the signage to the side of the path it created a gateway if you like for a change of nature of the path where you are going from a wider accessible path to a more narrow confined corridor". 1. This was one of a number of non-responsive answers. Rather than answering the question that was asked namely whether the bollard complied with any particular standard about location of bollards as a single bollard, the answer to which based on his earlier evidence would be "no", he has provided a generalised statement as to the collective view of the Council that it created a gateway together with signage to indicate a change of nature of the path going from a wider accessible path to a more narrow confined corridor. There is no suggestion in this case that the path upon which the people walk and cyclists cycle narrowed. What is being referred to is the surrounding area of the pathway narrows. What is being suggested is that by leaving the bollard where it was that somehow indicates the change in nature of the surrounding area. This evidence was the same as given in chief, and has the same difficulties addressed at [42.23] below. 2. Later at T82.30 in answer to the proposition that the bollard really only created an obstacle on the right-hand side or southern side of the pathway the answer given was "it still provides a constriction for for travelling cyclists through that corridor". This seems to be backtracking to the idea that the single bollard will achieve the slowing of cyclists, something which the audit report author considers "unlikely". 3. It was put to the witness that the Council reacted to CRM reports but did not react to the audit report relating to the bollard. That was agreed with. The reason given was the view was that it would still serve the purpose of controlling pedestrians and cyclists along that stretch of the pathway. The answer was given shortly after that part of the audit report at page 135 of the bundle had been accepted as being seen by the witness. The part that was read to him included that the one bollard "which is unlikely to slow cyclists and may result in the cyclist colliding with a pedestrian at speed". The "view" taken by the Council is to the opposite of the audit report. 4. This witness agreed that it was not simply a case of dealing only with high risk actions in the audit report and not dealing with medium because some high risk actions were not fixable. The witness agreed that that was because it might involve a large engineering job would otherwise be impossible. Mr Busmanis then accepted that the problem with the bollard was entirely fixable as all that was required was to remove the bollard and that the Council had a general allocation for attending to maintenance items; see at T84.43. 5. It was then put that the removal of the bollard could easily have been paid out of the Council's general allocation and the answer was that there were a lot of CRM's "now that we use that language" (which I interpret means including the audit as a CRM) to deal with and he said that they need to assess them and the bollard wasn't attended to because they had a significant amount of CRMs to deal with over and above this report being the audit report. 6. He then said or agreed that they react to each CRM by assessing them. It was put to him that the audit report was treated differently to a CRM. The answer given was: We have dealt with it as both in the hierarchy of what we can do to respond to the high risks that have been identified and the medium risks and the lower risks would be dealt with at some other point in time not immediately and I mentioned to the fact that potentially some of those which dealt with say line marking and vegetation maintenance could occur when our resources were in the area 1. In other words the evidence is that the Council deals with the medium risks at some other point in time, albeit not immediately which must mean that there is funds available at some point for those risks. 2. The point being made by the plaintiff is that the audit report does exactly the same thing as a CRM in identifying matters for attention. The answer given to that proposition was to say the audit report was a risk assessment which categorised different risks as to high medium and low and the Council concentrated on at least having the high risks attended to, though that answer needs to be considered with the earlier evidence above of attending to the medium risk at some later time. 3. Next it was pointed out that the report went even further and categorised the risk as to medium to mean that it should be corrected or the risk reduced if the treatment cost is moderate but not high. That was agreed to and it was further agreed that was the assessment of the bollard and further that the costs would not be high. It was agreed that the remediation that could have been done was exactly what had already been done with the other bollard. 4. That evidence amounts to saying that the removal of the bollard should have occurred in the same way that there had been the remediation to the first bollard. To that end was the following question and answer at T 87.15: Q. So exactly the same thing that was done on that occasion could have been done in response to the risk identified in this report, couldn't it? A. Yes, but in the context of the report our target is to deal with the high risks, and medium risks and low risks that are identified in the report are managed differently to the CRM. As you've indicated it should be treated the same as a CRM but it's not; we are responding to the incident as a CRM because an incident did actually occur. With this report we've got to manage the budget of allocating responses to all of those three categories of risk and our budget was allowing us to deal with the high risk and the medium risk and low risk activities would be dealt with at some other point in time when it would be cost-effective to do that work. That's the way we were managing this report. 1. This answer treats the original bollard remediation as following an incident that did actually occur whereas no harm had actually occurred. It was then put to the witness that there was no incident as no one had been injured and the answer was given that it was a hazard that's been identified and reported to Council so the Council responded to that. 2. This answer causes some misgivings as to the reliability of this evidence. In the space of just a couple of questions Mr Busmanis has firstly asserted a distinction between the audit report as to the remaining single bollard and the CRM relating to the first bollard by reason of there having been an incident in 2016. Possibly that was a reference to the fact that the bollard was actually damaged, and a risk created but that interpretation is taken away when the follow-up question was answered as saying a hazard had been identified. Viewed that way it is entirely the same incident free reporting of a potential hazard as the audit report. When it was then put to him that there was no difference the witness then referred to the incident that was reported no doubt meaning the damaged bollard. He explained this on the basis of the description being of sharp protrusions so that was what they went about fixing. He compared this to what was listed in the report about a bollard of medium risk which was not an immediate safety problem. The point being made by the plaintiff was that both the audit and the CRM which was acted on identify a risk of injury to a member of the public. The distinction being made by the witness is that the audit identified a medium risk which was not their first priority whereas with the CRM they identified or assessed the exposed sharp metal and gave it greater priority than the audit. 3. The witness was then asked as to why the original bollard was not replaced and the answer at T 89.50 was that the remaining bollard would satisfy requirements which led to a return to the two original purposes with emphasis on also controlling and mitigating against speed because of the known response of cycles that would slow. Whilst the Council's position is perhaps understandable as to why you would repair exposed sharp metal that had been broken off this decision not to replace the initial bollard does not make sense because the audit identifies that it is unlikely to slow cyclists. 4. Perhaps the chief concern as to the evidence of this witness is his insistence of the benefit of the remaining off-centre bollard as being able to control the speed of cyclists in the face of the objective material of the audit to the opposite effect. When this was put to this witness, he asserted at T 90.34: That's an engineering report that Council has engaged, and our view is that the existing bollard plus the signage that's already there would satisfy a similar function. 1. This answer in seeking to maintain the speed restriction purpose now introduces a new element of signage. When challenged about what signage he is talking about he answered, "look I personally don't know what the involved signs are along very". The evidence that followed did not really change that unsatisfactory situation. This evidence shows the witness maintaining a view contrary or at least in variance to his initial evidence (when no reference to signage), which is also against the objective evidence of the audit report, seeking to give support to the bollard remaining in its position. I reject this evidence that the bollard was left there for that purpose for those reasons. 2. In a similar vein when asked about the etiquette recognised in the report of leaving a space of 1 m when passing pedestrians (see bundle page 128) it was put to Mr Busmanis that to maintain that etiquette it would have the result that the bollard would be directly on a person's path. He agreed with this. Similarly, if someone is coming the other way (travelling west) to get around the bollard having kept left as they should they would need to move to the right to avoid the obstacle of the bollard. That too was agreed with. In other words when travelling in either direction the location of the bollard poses an obstacle. This in turn heightens the risk of potential conflict with pedestrians which was agreed with at T95, though with the added prospect of the bikes slowing down. 3. It was then put that was the same risk as identified in the audit report at page 135 of the bundle. To this another non-responsive answer was given namely "my interpretation of that is that it's - it would be desirable to have the two bollards there to be more effective. That was the original design intent of the two bollards to have that slowing down procedure". This is tantamount to agreeing that the slowing purpose is not achieved by the single bollard. Yet they Council chose in effect the most dangerous course, or the course of greatest risk, by neither replacing the broken bollard, nor removing the remaining bollard, but instead left the single bollard, with the risk that I find the Council was aware of no later than the receipt of the audit report, and most likely before that. 4. The cross examination at this point was leading up to the suggestion that some tactile line marking should be placed. What I find more significant is that even at this point (T96.30), Mr Busmanis is adhering to what I consider a discredited assertion that the single bollard, now in tandem with the adjoining signage, was still serving its purpose. For the reasons given above I reject that. 5. The evidence of Mr Busmanis was very defensive of the Council's position. Mr Busmanis was put in a difficult position; he was the responsible, or at the very least involved with, the pathway from its inception in the late 1990s, was part of the staff responsible for the pathway when the bollard was removed in 2016, and also in 2020, the time of this incident. Although it was not put to him, he plainly is in a position of conflict between stating frankly whether any purpose was served by the remaining bollard, and his role in that being so. I have no doubt Mr Busmanis sought to give as much assistance to the court as he could and that he sought to do so honestly, yet there are aspects of his evidence which conflict with more objective evidence, namely the audit report, and with respect, common sense. Whether that is explicable by Mr Busmanis having a conflict of interest or not is besides the point, the difficulty for the Council's case is that the difficulties with his evidence remain. 6. One difficulty with his evidence is that it began by clearly identifying 2 purposes for the bollards in question in this case, to prohibit the speed of cyclists, and to prevent vehicles accessing the pathway from the adjacent reserve. Yet when it was put to him both those purposes were not served by the remaining single bollard, he did two things. The first was to maintain a single bollard prohibited the speed of cyclists; the second was to offer up a new purpose of the bollards, namely, to notify users of the pathway network of a change in characteristic of the area, of the transition from a wider broader reserve area heading to a more confined area with lighting and fencing on one side and a rock wall on the other for a fair way in front. I consider the reference to "transition" to a narrower area as being an attempt to justify the Council's non removal of the bollard when it has become clear that single bollard no longer achieves the two purposes for which the two bollards were initially installed. That conclusion is justified by the fact that this "transition" was not identified as a purpose of the two bollards being installed when that issue was first asked about, and also by reason of the fact if you are travelling west the transition is not to a narrower area but to a wider area. Furthermore, the remaining bollard is on the side of the path travelling west, so it is more likely to obstruct those travelling into the broader area Mr Busmanis refers to. Added to this is the fact that there is no narrowing of the pathway itself. This also shows how the social utility balance of the bollards, when reduced to a single bollard, is reduced markedly, if not totally extinguished. 1. The position therefore is that in 2016 the Council chose to leave a single bollard. In 2017 it was advised that single bollard was unlikely to slow cyclists and may result in a cyclist colliding with a pedestrian at speed. At that point the Council knew that both purposes of the original installation of two bollards was not being met; no longer could vehicles be restricted which is conceded and further rather than being some kind of constricting device the audit shows that it is unlikely to slow cyclists and may cause a collision. Insofar as it may be said that the Mr Busmanis provides an alternative opinion to that given by the audit, I prefer that of the audit given the variable nature of Mr Busmanis' evidence as detailed above. The expert evidence and other documents 1. Both parties had briefed expert engineers who produced reports, and then attended a conclave and produced a further joint report. Neither expert was the subject of cross examination. 2. Some of the expert material is extremely detailed. The most effective way to deal with it is in line with the parties' submissions. 3. For the plaintiff reference was made to paragraphs 7.9, 7.16 and 7.25 of the report of Mr Waddell dated 18 December 2020. 4. Mr Waddell is a consulting engineer. There is no challenge by either party to either party's expert in terms of qualifications. The issues Mr Waddell has been asked to consider and his responses are set out in section 7 of his report. 5. Mr Waddell assumes the facts to be a scenario where the plaintiff was riding a bicycle at relatively slow speed along a shared pathway. Ahead of her to the right was a bollard obscured from her view by a man walking along the path with a woman. The man made three sideways movements, left, right, then left and blocking the central area of the path. In going around and to the right she unexpectedly discovered the bollard was blocking her way and was forced to move off the side of the path and onto an adjacent grassed area. This exposed her to a risk of colliding with rocks. In attempting to avoid the rocks she fell off her bike. These assumptions are made on the basis of the instructions he received, and set out the plaintiff's case. Based on my factual findings, it is very much in line with what in fact happened. 6. At par 7.9 Mr Waddell expresses the view that the main safety aspect (or, I would add, risk) of the two bollards on the pathway relates more to cyclists than pedestrians colliding with a bollard or in avoiding a bollard, falling off the bike. This particularly applied when there are rocks lining one side of the path as was the case here which restricted safe escape routes or in this case providing no safe escape route. At paragraphs 7.11 - 7.12 he states that the most likely cause of cycles being exposed to risk because of a bollard is that it would not be seen in time as other pedestrians or cyclists may hide it from view. 7. At par 7.16 the opinion is given that a risk assessment of leaving one bollard on the pathway would or should have led to consideration, to summarise him, of the fact that bollards can be hidden from the cyclist's view and that a single bollard creates a greater risk than two and that the proximity of the rocks creates a risk for someone avoiding the bollard by going around it. The reason given for a single bollard creating a greater risk is because with two bollards the prospect of one being seen is increased, alerting the person to the prospect of another, (or I would say, twin) bollard. 8. As to what steps the Council ought to have taken the view was expressed that the most obvious measure was to remove the bollard. 9. At paragraph 7.25 this engineer expresses the view that the plaintiff did not contribute to the incident by any careless or reckless action of her own but was injured while riding slowly along a designated cycle/pedestrian path unaware of a bollard on the path ahead. 10. Whilst just why an engineer is expressing such an opinion, relating as it does to bicycle riding, need not be answered here, on the facts that I have found above the plaintiff was at all times acting in a reasonable fashion and I agree with the view of the engineer but she did not contribute to the incident. 11. The plaintiff in submissions also referred to the second page of the conclave report. The page numbered 2 of that report which is in fact the first page following a cover sheet is an answer by Mr Wadell of the question as to whether the bollard's presence required warning and if so of what nature. His view is it does, and by way of a sign. Mr Waddell goes on to give a view that he does not consider that the risk of colliding with the bollard was an obvious risk. Again putting aside whether this is engineering expert evidence he says that it was not obvious because she did not see it until it was too late to safely avoid it. As a matter of common sense, I consider that to be the correct analysis in this case concerning the obvious risk argument. He then goes on to suggest that tactile line marking, that is as I understand it markings that you can feel as you go across them and hatched areas and warning signs should have been used. In my view the tactile line marking would only serve that purpose if it was spread out across the whole of the pathway rather than simply being in line with the bollard, given the plaintiff was navigating across from left to right. Line markings, if they can indicate the bollard ahead, give some added safety. 12. Lastly the plaintiff referred to paragraph 18 of the letter of Mr Waddell of 8 February 2022 which is in response to the Council's expert. This paragraph shows Mr Waddell disagrees with the Council expert as to the adequacy or benefit of line markings, on the basis that a line marking would not be blocked when the view of the bollard was blocked. 13. Next the plaintiff referred to the fact that there were no standards applicable to the location of a single bollard that was not in the centre of a pathway in support of the suggestion that a single bollard should not be off to one side as was the case here. In my view that is a fairly neutral matter and what really needs to be focused on is the effect of this particular bollard in the location that it was in the circumstances of 27 August 2020. 14. The plaintiff was critical of the expert report for the Council at page 332 of the bundle. That shows a photograph of the site but with the bollard the subject of these proceedings no longer present. This is to aid the argument of the Council that the plaintiff should simply have continued along the grass verge rather than turning left to re-join the pathway. The picture shows grass similar to but not the same as what was seen in earlier photographs. The fact that the grass is different has to be acknowledged but even then, in my view what this photograph shows is what appears to be rather thick and heavy grass and most likely uneven ground in very close proximity to the rocks which understandably any cyclist would want to be further away from. My view is that the argument propounded by the Council and supported by the expert has no merit, because of the verge being in such proximity to the rocks, the apparent unevenness of the ground, and the greater difficulty of riding on grass as opposed to concrete, and even more so when doing so having just taken an evasive course around the bollard. 15. In reference to the first expert report for the Council at page 277 of the bundle and in particular at page 284 the plaintiff says that if what the expert is saying there is correct then the logical thing to do was to remove the bollard. What is being said on that page argues that the plaintiff ought to have been aware of the bollard prior to having come up behind the pedestrian. Yet the facts are of the plaintiff riding sensibly and slowly and as she approached the bollard area was focusing on the pedestrians and for good reason given the movements of the male. With respect that the bollard may be clearly visible if you are looking at, does not mean the plaintiff ought to have seen it. As a matter of common sense and everyday experience it can be easily contemplated that the bollard would not be obvious, if as here, the focus of the person concerned is sensibly elsewhere, and the view of the bollard is blocked. The point the plaintiff appears to make is that if this view here being expressed is accepted, namely that linemarking is inadequate, then the better option is to remove the bollard. I accept the plaintiff's argument in that regard. 16. In the submissions of the Council concerning the expert material reference was made specifically to the expert it retained at page 288 of the bundle which addresses causation factors. The Council highlighted the following five matters: 1. The failure of the plaintiff to see the bollard at all which I have addressed above. 2. The plaintiff not being careful regarding the pedestrian moving erratically. I have addressed this in dealing with the facts and have concluded that the plaintiff was careful. 3. The taking of evasive action was not a reasonable response and was fed by not keeping a proper lookout. Breaking that down I have found that the evasive action that was taken was a reasonable response. Furthermore, I am not satisfied that the plaintiff was not keeping a proper lookout as already touched on above. It needs to be remembered that she was in fact looking where she was going and she was until the decision to overtake was made and acted upon travelling on the left-hand side of the pathway, the opposite side from the bollard. I find she was keeping a proper lookout. 4. The submission was made that her departure onto the verge becomes irrelevant if she is giving one metres grace to the pedestrian. With respect that does not fairly represent her evidence. It is her practice to allow that amount of distance but plainly that might not occur on every occasion. Furthermore, although I do not consider this matter can be reduced to precise calculations, the middle of this path based on the diagram at page 66 of the bundle is 1.35 m from the grass verge. If the person being passed is, as here, at about the middle of the path then, applying the plaintiff's usual rule would place her no further than 35 cm from the grass verge. Based on photo 17 at page 162 that would place her very close to exactly where the bollard is entirely consistent with her case that it necessitated the evasive action and the very departure onto the verge that the defendant argues is irrelevant. 5. Lastly the Council argued that road devices such as speed bumps, chicanes and I would add, bollards, may cause harm and are put in place with the greater good in mind. The submission was that they must pose a danger or perhaps more accurately an obstacle in order to do their work. As a general statement that is entirely accurate, and no doubt is a submission made with section 5B(2)(d) in mind. The problem however for the Council with that argument here is that the greater good ceased to be able to be achieved in 2016 when the first bollard was removed and instead leaving only one bollard, thereby either entirely removing the social utility sought to be achieved by having two bollards or alternatively if that be wrong reducing its social utility to such an extent that the danger it posed outweighed that utility to such an extent that the remaining single bollard should have been removed. 1. My conclusions on the expert evidence is that the views of the plaintiff expert are to be preferred for the reasons just outlined. The parties' submissions 1. Both parties made both written and oral submissions beyond those just dealt with in connection with the expert evidence. I will deal first with the submissions of the plaintiff. In doing so I make certain findings favourable to the plaintiff. I then deal with the Council's submissions. In making findings favourable to the plaintiff I have given due consideration to the Council's submissions. The submissions of the plaintiff 1. The plaintiff's submissions firstly dealt with the question of the Council being the occupier. There was no issue in this respect. 2. Next it addresses the risk of harm and the need to identify such a risk by which both duty of care and breach is to be determined; s5B, CLA. The plaintiff identifies the risk as being that set out at paragraph 6(b) of the Amended Statement of Claim namely the risk of the plaintiff being injured in the event of colliding with or as a result of attempting to avoid colliding with the bollard identified in paragraph 4(a) of the Amended Statement of Claim. 3. To support that pleading the evidence relied on is the CRM report at page 180 of the bundle which shows the removal of a bollard in 2016 so that there remained only one bollard, and the safety audit report which as detailed above at page 135 of the bundle states the single bollard is unlikely to slow cyclists and may result in a cyclist colliding with a pedestrian at speed. 4. This is said to show that not replacing the bollard and leaving just one bollard presents an injury risk to a member of the public. It is further submitted that the risk of a cyclist colliding with a pedestrian as identified by that audit report (due to the bollard) could only be caused by having to take action to evade the bollard and that it was these precise circumstances that resulted in the incident. There is a certain fundamental common-sense logic about this submission and I accept it. 5. The plaintiff argues that not only was the risk foreseeable it was, by the audit report, foreseen. It is argued that risk was not insignificant, again relying on the audit report to show it was categorised as a medium risk. The point is made that we are dealing with a fixed metal bollard installed in a hard concrete surface near a wall containing large boulders so that any collision may result in one or more persons landing on a number of possible hard surfaces. It is argued that a reasonable person in the position of the Council would have removed the bollard, make it more obvious by markings on the pathway or by installing signs. As noted elsewhere in these reasons the first of these options was a very minimal cost, something further supported by the short period of time taken to remedy the damage to the bollard in 2016 as noted at [6] above. Whilst the other options would be attended by contractors their cost too would likely be minimal. The evidence showed that removing the bollard could occur from the allocated budget as shown by the evidence of Mr Busmanis. Further line marking contractors had already been engaged so a budget already set. 6. The factors set out in section 5B(2) to assist in determining whether a reasonable person would take precautions against a risk of harm were argued to favour the plaintiff. I accept that submission. In terms of probability there is the assessment of an occurrence once every 5 to 10 years found in the audit report. That may seem a low frequency, but it is of a frequency that in terms of the audit report is described as occasional, and was a risk Mr Busmanis said was intended to be addressed. Furthermore, the remaining three factors all heavily weigh in favour of the plaintiff. The likely seriousness of the harm could well be significant given the hard surface environment just referred to. The burden of taking precautions is minimal and the social utility, as found at [59.5] above is now minimal, if anything. 7. The conclusion argued for by the plaintiff, which I accept, is that it cannot be said in terms of section 5B that the council is not negligent by failing to take the precaution of removing the bollard. 8. Section 5C requires that a consideration of the burden of taking precautions to avoid risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. The plaintiff has addressed this together with section 42 which provides that it is not open to challenge the general allocation of the council's resources for the purpose of exercising its functions. 9. The plaintiff meets the argument for the defendant that the council decision not to carry out work such as removing the bollard cannot be challenged because the general allocation of resources cannot be challenged, by asserting that when the bollard was removed in 2016 there was no specific budgetary allocation required. It followed that there would not be any need for any special allocation to do the work claimed here. 10. The plaintiff further argues that the purpose of the audit report was to identify problems with the shared pathway in the same way that CRM reports do. The audit report does this better because it provides a professional assessment rather than a complaint from the public. The Council categorised the issues of the audit report and prioritised high-risk matters. The evidence does not disclose any similar categorisation for CRM matters. In terms of section 5C and the reference to similar risks of harm, plaintiff argues with reference to Weber v Greater Hume Shire Council [2019] NSWCA 74 that there is no evidence of any similar risk of harm existing by reason of the presence of any other bollard. It may be argued that a similar risk of harm should be more broadly stated than that and be a risk of harm arising from the need for maintenance of the path. 11. In my view these issues are able to be resolved by virtue of the evidence of Mr Busmanis who said that it was the intention of the council to address the medium risks identified in the audit report. The first priority was the 11 high-risk matters. When the report is considered six of those high-risk matters involve cutting vegetation or removing sand and gravel, and a seventh identifies a trip hazard. Of the remaining 4, more than one of them was considered to be unfixable which means there remains only a maximum of 2 high-risk matters to attend to out of the entire report. Added to that fact is the minimal cost involved to remove the bollard in question. I also note the evidence that there were occasions when the allocated budget was exceeded. Further the remediation of the 2016 bollard did not require any special allocation of funds. The inference I draw based on these various facts is that there was in fact money available to the Council to take the precautions against the identified risk of harm as argued for by the plaintiff. 12. Put even more simply the medium risk matters of the audit report are matters that are precisely if not more informedly of the same nature as the CRM reports, demonstrating an allocation of resources by the council to address the very matters the subject of the audit report. 13. Additionally and consistent with the foregoing is the evidence of Mr Busmanis referred to at [41.21], [41.7], [41.12] and [41.13] above. Further supporting the plaintiff's argument is the audit report itself which stated: "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". I find, contrary to the assertions of Mr Busmanis, once the bollard was removed in 2016, there was no longer any social utility in the remaining bollard remaining; the two purposes for installing no longer remained, or if that be wrong, was now so minimalised as to not justify the risk it created. 14. The recommendation in the report is for the risk it identifies "should be corrected or the risk significantly reduced if the treatment cost is modest but not high". It was accepted that the treatment cost was modest, if not in fact low; and to give that some perspective, it would be similar to the 2016 work which as already noted took the Council 3 hours and 20 minutes to complete, and would be funded from the allocated budget. 15. The defendant's position needs to be considered however its submissions in relation to these detailed aspects of the legislation were not as comprehensive and having considered them I accept the conclusion of the plaintiff in her written submissions at paragraphs 62 and 63 so that a finding of negligence is not precluded by reason of section 42 nor by reason of section 5B and more particularly 5C for the reason stated by the plaintiff that there was no need for any reallocation of resources to carry out the precaution of removing the bollard. 16. The plaintiff then considered section 5D, causation. The plaintiff applies what is said to be a statutory "but for" test and makes reference to Strong v Woolworths [2012] HCA 5. The simple submission is that but for the Council failing to remove the bollard the accident would not have occurred. I have analysed the evidence in that regard above and the findings made are favourable to the plaintiff. My conclusions are further supported to by the additional point of the plaintiff that the plaintiff had earlier that day overtaken pedestrians without incident. 17. The plaintiff addressed sections 5F and 5G and the issue of obvious risk. The definition of obvious risk in section 5F includes that it would have been obvious to a reasonable person in the position of the plaintiff. For reasons stated at [11] and [54] above I have concluded that the risk was not obvious. The plaintiff's evidence was that she did not see the bollard until the pedestrian moved to the left the second time, and as noted above was focusing quite sensibly on the apparently undecided pedestrian. Having accepted the evidence of the plaintiff that she did not see the bollard until she was within 1 to 2 metres from it and that she at all times acted reasonably, the conclusion must follow that it was not obvious to the plaintiff nor to a reasonable person in her position. 18. Lastly, the plaintiff submitted that there should not be any finding of contributory negligence. For the reasons given as to why the risk of the bollard was not obvious, including that the plaintiff at all times acted reasonably, I accept the submissions of the plaintiff which are in line with my above findings that there was no contributory negligence. The submissions of the Council 1. The Council in its written submissions focused on the facts of and leading up to the incident to argue that primary negligence rested with the plaintiff, that is, that the cause of the incident was the plaintiff herself, and essentially because she failed to keep a proper lookout and failed to see the bollard, which it was argued was obvious. The matters raised in this regard have been the subject of my findings of fact, which do not favour the Council. 2. The written submissions then addressed the provisions of the CLA. In respect of s5B the submissions seek to negate the impact of the audit report by arguing that report relates to an incident between a cyclist and a pedestrian. That argument is too narrow a view, and the risk identified plainly extends to what eventuated on 27 August 2020. The argument as to social utility referred to in s5B(2) was relied upon, and that has been dealt with above. That argument does not survive the findings made as to the lack of purpose of the single bollard after 2016, and reliance on the evidence of Mr Busmanis in that regard does not assist the Council for the reasons canvassed when considering his evidence. 3. I accept the Council's submission that the subsequent removal of the single bollard does not demonstrate liability or amount to any admission, and no reference to that fact was made during the hearing, or in submissions by the plaintiff, or in these reasons until just now. 4. In terms of causation and s5D the Council again refers to the conduct of the plaintiff. I reach the same conclusion here as with the argument as to primary negligence. The Council also relied on s5D(4), and says that any danger caused by the bollard was offset by the dangers reduced. As discussed above, that was not the case after the removal of the bollard in 2016. 5. Reliance is placed on the obvious risk provisions. Here, reference is made to the fact of the bollard being a brightly coloured static pole. That is a reasonable submission, but based on the photographic evidence the colour of the bollard is not such that, in the circumstances the plaintiff found herself in, it would make it any more obvious. 6. The plaintiff argues that s42 CLA properly applied means the Council has not breached its duty of care. The Council relies on the evidence of Mr Busmanis to make good this argument. For the reasons discussed above, the conclusions drawn from Mr Busmanis' evidence are to the opposite effect. 7. In the Council's oral submissions following points were made: 1. That the risk was identified to be once every 5 to 10 years as stated in the audit report which is considered to be a medium risk. The submission was made that there were no resources for medium risk and the budget was fully allocated. With respect the evidence was not so emphatic. The evidence clearly was that it was the intention to deal with medium risk. It was also the evidence of the Council that it would be low-cost to do the work needed to be done here, if it is accepted that would be the removal of the bollard. 2. It is difficult to come to a conclusion that the evidence of the Council shows that there was not any allocated budget that could have been used to remove the bollard. The evidence was of the budget sometimes being exceeded which suggests that a modest overrun is possible and other times where the budget had been beaten. The relevant time period to do this is any time from 2016 or at the latest since 2017. I find that the cost of the work to remove the bollard could be met from allocated funds as discussed above. 3. The next point was to say the risk identified in the audit report was something other than what happened, and this is a reference to section 5D. As discussed above in relation to the plaintiff's submissions I reject that argument and that the risk of harm is in line with what has eventuated. 4. It was submitted that the fact that there had been no incident between 2016 and 2020 meant that there was no risk or more accurately no reason to suspect the risk would materialise. With respect, the audit report is to the opposite effect. 5. The submission was made that the cause of the incident was the plaintiff failing to keep a proper lookout. It was said there was no way the bollard should have been invisible to the plaintiff. The trouble with this argument is that it assumes that the plaintiff is keeping her primary focus on a bollard located just within the lines of the pathway on her opposite side of travel, when quite reasonably her focus is upon the person in front of her about the middle of the pathway and as she "navigates" around the pedestrian she sees the bollard. As noted above, viewed this way the bollard is not an obvious risk, and so similarly there is a way that she would not have seen the bollard. It is not as if she was riding along the path with nobody else in sight and rode into the bollard. If that was the case the plaintiff's argument would have severe difficulties and the Council argument would likely succeed. The problem with the Council argument is that it does not account for the interaction of the two users of the shared path. 6. In both evidence and submissions, the Council sought to persuade the court that the plaintiff was swerving in some kind of borderline haphazard manner to go around the pedestrian. On my findings she has sought to go around the pedestrian in a cautious way, was momentarily concerned by the fact of him stepping back to the right but was able without any variation to maintain her course to the right and it was only when the focus on the pedestrian was no longer necessary, and she could see past him that the unexpected bollard then posed a problem. 7. The Council argued that there were only two conclusions. Firstly, that the pedestrian was in the direct line of the plaintiff's sight of the bollard so that the plaintiff was heading for the verge anyway. The second possibility was that the person was further to the left so that the bollard was visible. The problem so says the Council is the plaintiff did not pay attention to it. Based on my findings as to what in fact occurred the facts do not support these submissions. 8. The Council made the point that there was no evidence of losing control of the bike and that the bike was going where the plaintiff rode it. This too is addressed by the factual findings, and the facts as to having to avoid the bollard and then return to the path clearly explain how the bike came out from underneath the plaintiff. 9. The Council said this was simply an unfortunate accident of a bike and two pedestrians with the view of the bollard obscured by the pedestrians and not seen due to a failure to keep a proper lookout. For reasons already outlined this is rejected. I would add that the case demonstrates the difficulty of a shared pathway and is an illustration of the very sort of circumstance that might emerge where the risk identified and known to the Council materialises. 10. The Council then referred to Mr Horrigan's report at page 288 of the bundle. This has been addressed above 11. The Council acknowledged the evidence of Mr Busmanis that the removal of the first bollard reduced the effectiveness of the remaining bollard. It submitted that the bollard still served as a warning as to the narrowing of the corridor. For reasons discussed above I consider this most unconvincing. 12. It was submitted that as there was no CRM concerning the bollard, and the plaintiff did not in fact hit the bollard, so there was no reason to be aware of any risk. This submission ignores the audit report and the fact of the Council being aware of the reduced utility of the bollard since 2016. 13. The Council relied on s42, which has been addressed above. The Council says that there was a general allocation of resources for the purposes of maintenance which do not extend to carry out the maintenance required here. The evidence was that the budget was nearly fully spent or overspent in the relevant period dealing with CRM matters. Subsection 42(b) makes it clear that this general allocation is not open to challenge in the matter of resourcing as a matter for the Council. 14. At the risk of repetition, the plaintiff did not seek to challenge the proposition that the general allocation could be challenged in the way prohibited by the section. The plaintiff however relied on the fact that is acknowledged by Mr Busmanis that the audit acts as a CRM where the assessment has already been carried out. The evidence was that it was the intention of the Council to address medium risk matters as identified in the audit report. In other words, the allocation was for the very type of maintenance that the plaintiff argues should have occurred. 15. Furthermore, the evidence was that CRMs are logged in the system and a person then goes and assesses the matter and it is then dealt with depending on that assessment. There was no evidence to suggest by reference to the audit report what style of risk or categorisation was comparable in the CRM process to justify the use of the general the allocated resource. The fact that the evidence was of an intention on the part of the Council to remedy the risk identified in the audit report leads me to infer that an assessment by the Council of the bollard if reported by member of the public would have led to action being taken from those allocated resources. 16. For those additional reasons to those set out above, it follows that I do not consider section 42 denies the plaintiff's claim. 17. It was submitted that if the court was against the Council, then there should be a significant finding of contributory negligence. For the very same reasons that the risk of the bollard was not obvious and based on my findings as to how the accident occurred, I find that there is no contributory negligence. 18. Perhaps only as a throwaway line the Council submitted that "accidents happen" and it is not always somebody's fault. For all the above reasons my view is that this was not an accident the cause of which cannot be attributed to somebody but rather it is an event that occurred due to the materialisation of a non-obvious risk the Council was well aware of, could easily have fixed, and had the allocation of resources to deal with. Conclusions and orders 1. The Council as occupier of the pathway owed the plaintiff a duty of care and having regard to the provisions of the CLA breached that duty. I find that the breach of duty is the failure to remove the single bollard that remained on the pathway following the removal of another bollard on the other side of the pathway in 2016. The plaintiff argued the Council also breached the duty of care by failing to have warnings as to the presence of the bollard by way of signs or markings, including tactile markings, on the pathway. Whilst those precautions would in my view reduce the risk of harm and would on the evidence likely be of minimal cost, in light of my finding as to the breach being the failure to remove the bollard, it is not necessary to determine any further breach of duty. 2. It follows that the plaintiff has established liability. The parties informed the Court that the quantum of damages had been agreed in the sum of $193,531.39. There should accordingly be a judgment for the plaintiff in that amount, and subject to any further submissions of the parties, the defendant is to pay the plaintiff's costs as assessed or agreed. 3. I make the following orders: 1. 1. Judgment for the plaintiff in the sum of $193,531.39. 2. 2. The defendant pay the plaintiff's costs as agreed within 28 days, and if not agreed, then as assessed, subject to any submissions of the parties to be made in writing by no later than 21 December 2022. 3. 3. In the event the parties make submissions as to costs, then the matter is relisted for mention or further orders on 8 February 2023. 4. 4. Direct that the exhibits be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2023