HAISMAN v ALBURY WODONGA DEVELOPMENT CORPORATION and ANOR [1997] NSWCA 134

HAISMAN v ALBURY WODONGA DEVELOPMENT CORPORATION and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, BEAZLEY JJA and STUDDERT AJA 19, 20 March 1997, 18 April 1997 [1997] NSWCA 134

NEGLIGENCE — Design of bicycle pathway and absence of warning signs — No design fault proven

APPEAL AND NEW TRIAL — Conflicting versions of events — Duty of trial judge to make express findings of fact

The appellant sustained severe head injures when, whilst riding a bicycle, he collided with another cyclist coming from the opposite direction on the Lincoln Causeway commuter/cycle pathway linking Albury and Wodonga. He brought an action in negligence against the first and second respondents, who had been responsible for the design and construction of the pathway, alleging breach of duty of care for failure to construct a dual pathway and failure to erect warning signs.

At trial, Master Greenwood found that the appellant's wife (the appellant having no memory of the accident) had in her evidence and in pre-trial statements given conflicting versions of the circumstances surrounding the accident. The Master held that the appellant had failed to establish that the accident was due to any design fault in the construction of the pathway.

HELD: (1) Appeal dismissed

(2) It was incumbent upon the Master to make appropriate findings of fact, including as to which version of the facts he preferred and to determine, on those findings, whether the appellant had established negligence.

(3) However, as the Master had considered the matter on a number of alternative bases, including his preferred version of the facts, his findings were open, and were supported by the evidence.

(4) The appellant had failed to establish negligence and in particular, had failed to establish that the 1st and/or 2nd respondents were negligent in having failed to design and construct a dual pathway at the underpass where the accident occurred.