Saidden v Drummoyne Muncipal Council [2002] NSWCA 42

New South Wales Court of Appeal

CITATION : Saidden v Drummoyne Muncipal Council [2002] NSWCA 42 FILE NUMBER(S) : CA 40593 of 2001 HEARING DATE(S) : 26/02/02 JUDGMENT DATE : 26 February 2002

Monier Saidden PARTIES : v Drummoyne Municipal Council JUDGMENT OF : Meagher JA at 1; Ipp AJA at 17; Campbell J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT DC 4942 of 1999 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :

COUNSEL : A: S Norton SC with A Healey R: G Watson SOLICITORS : A:Maxwell Berghouse & Ives Solicitors R: Phillips Fox Lawyers CATCHWORDS : Personal Injury - appellant fell while riding bicycle - whether sea wall should have been made level with path - breach of duty of care - causation - appeal dismissed with costs. DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40593 of 2001

MEAGHER JA IPP AJA CAMPBELL J

Tuesday, 26 February 2002 MONIER SAIDDEN v DRUMMOYNE MUNICIPAL COUNCIL Judgment 1 MEAGHER JA: This is an appeal by Mr Monier Saidden, an appellant who unsuccessfully sued the respondent Drummoyne Municipal Council for personal injuries sustained by him when he fell off his bicycle within the boundaries of the Council. 2 He suffered injuries, including damage to his arm, which were all the more serious because by profession he was a dentist and the impairment of his arm must have impeded him from practicing his normal business. 3 These are the circumstances of the accident. He was an experienced cyclist and on this occasion, as on many occasions, he was riding on the bicentennial pathway within Taplin Park, Drummoyne. He was well and truly familiar with the pathway. He had ridden on it literally hundreds of times. Taplin Park is on Sydney Harbour. An historic sandstone sea wall separates the harbour from the park. The top of the sea wall is uneven, consistent with wind and water erosion over its long age. The bicentennial pathway sits on the land immediately adjacent to the sea wall. 4 At the point where the accident occurred the sea wall was broken by a boat ramp which slopes from the park down to the water. The boat ramp is covered by concrete. The bitumen car park lies behind the landward end of the boat ramp. 5 Mr Saidden was riding slowly along the pathway with the harbour on his left. When he reached the boat ramp he turned to his right and followed the pathway towards where it met the top of the boat ramp and adjoined the car park. His usual practice was to keep riding until he came to a level area where the pathway, boat ramp and car park met. He would then continue to ride on the surface of the car park to rejoin the pathway on the other end of the boat ramp. For reasons which he did not make clear on this occasion he did not follow his usual practice. He turned left before reaching the level area. When he turned left he moved off the surface of the pathway and on to an uneven section on the top of the sea wall then down a substantial drop on to the sloping surface of the boat ramp itself. He fell off his bike and injured himself. 6 Although there was much debate about the precise point where this fall was initiated, it would seem on his evidence and indeed even on his Honour's findings, that the fall commenced when his bicycle tried to negotiate a gap between the pathway and the sea wall before one comes to the junction of the sea wall and the ramp. 7 There is indeed a gap between the pathway and the sea wall and that gap is about thirty millimetres. 8 The plaintiff, Mr Saidden, alleged that the Council was negligent for a number of reasons. The main reason is that it did nothing to modify the existence of that gap either by building it up or by marking it with different colours or in some other way. 9 His Honour rejected this argument for a variety of reasons. He held basically that the risk was so obvious and the chance of an accident happening so remote that the Council was not in breach of any duty of care by failing to take any action at that point. This is all the more so because there had never been any suggestion of any previous accident taking place at that point. 10 His Honour recognised that the Council did have some sort of duty of care but not such that a breach of it took place by virtue of the cause of this accident. 11 Recent cases in the High Court have demonstrated clearly enough that in circumstances where a danger is obvious and that the risk is remote a person in the Council's position is not necessarily in breach of its duty if it refrains from taking any action. 12 All this depends, to some extent, on the correctness of his Honour's finding that the gap was patently obvious. His Honour makes that finding not once but on three or four occasions. That is supported by the evidence of Mr Angelos the Council engineer. It is also, I think, supported by the photographs. 13 Even on the very able argument which Miss Norton for the appellant presented to us, it is obvious on some of the photographs. Although it was her contention that it was not obvious on all the photographs. Since the argument in this case has ceased, we have had occasion to look at the photographs to which Miss Norton referred and in our view the gap is blatantly obvious even on those photographs. 14 In any event, regard must be had to the fact that in the ten or fifteen kilometres of pathway it is obvious and was obvious to the appellant that there were gaps of up to 450 millimetres so that he must have known, and any other bicyclist using the pathway must know, that the danger of a gap existing is very real. One may add to that that it seems a little odd that any cyclist displaying rudimentary care for himself would ride his bicycle so close to the sea wall rather than in the centre of the pathway. 15 It is clear enough that modern principles of negligence have hardly abolished the doctrine of contributory negligence and a person in the position of the Council can hardly say that the plaintiff must fail because he did not look after himself. On the other hand, balancing that consideration against the other principles of law, it is also true that a defendant need not necessarily take any steps at all to guard against risks which are both strikingly obvious and very remote. 16 I myself find it very difficult to see any mistake of fact or law in his Honour's judgment and for those reasons I would propose dismissing the appeal with costs. 17 IPP AJ: I agree. 18 CAMPBELL J: I also agree.