Ballina Shire Council v Moore [2023] NSWCA 155

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ballina Shire Council v Moore [2023] NSWCA 155 Hearing dates: 22 June 2023 Date of orders: 6 July 2023 Decision date: 06 July 2023 Before: Ward P at [1]; Mitchelmore JA at [2]; Basten AJA at [3] Decision: (1) Allow the appeal and set aside the orders of the District Court entered on 15 December 2022. (2) In place thereof: (a) dismiss the plaintiff's amended statement of claim filed on 10 November 2022, and (b) order that the plaintiff pay the defendant's costs of the trial. (3) Order that the respondent pay the appellant's costs of the appeal. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: TORTS – negligence – breach of duty – public authority – responsibility for care and management of shared pathway – identifying risk of harm – whether risk not insignificant - duty to pedestrians and cyclists – fall by cyclist in avoiding bollard – precaution of removing remaining bollard of pair – purpose of bollard to create obstacle – whether single bollard had social utility – burden of precautions to avoid similar risks – whether reasonable authority would have taken precaution of removing bollard Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5G Cases Cited: Council of the City of Greater Taree v Wells [2010] NSWCA 147 Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Category: Principal judgment Parties: Ballina Shire Council (Appellant) Diane Margaret Moore (Respondent) Representation: Counsel: R Sheldon SC / D Hanna (Appellant) J Sexton SC / G Hampson (Respondent)