Reported Decision: (2007) Aust Torts Reports 81-874 New South Wales Court of Appeal CITATION: Carey v Lake Macquarie City Council [2007] NSWCA 4 HEARING DATE(S): 12 October 2006 JUDGMENT DATE: 8 February 2007 JUDGMENT OF: McColl JA at 1; McClellan CJ at CL at 15; McDougall J at 113 DECISION: 1. Appeal upheld; 2. Verdict and judgment for the appellant in the sum of $42,661.00; 3. The respondent is to pay the appellant's costs of the appeal and in the court below. CATCHWORDS: NEGLIGENCE - appeal on liability - bicycle collision with a bollard erected in the middle of a pathway - duty to care owed by local council to cyclists - missing reflector tape on bollard - obviousness of risk - whether appellant cyclist failed to keep proper lookout - voluntary assumption of risk - contributory negligence. Civil Liability Act 2002 (NSW) LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 Interpretation Act 1987 (NSW) Ainger v Coffs Harbour City Council [2005] NSWCA 424 Bernasconi v Newcastle City Council [2005] NSWCA 422 Bowster v Rowley Regis Corp [1944] 1 KB 476 Brodie v Singleton Shire Council C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts 81-815 Doubleday v Kelly [2005] NSWCA 151 Edson v Roads & Traffic Authority [2006] NSWCA 68 Eutick v City of Canada Bay Council [2006] NSWCA 30 Fallas v Mourlas [2006] NSWCA 32 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Great Lakes Shire Council v Dederer [2006] NSWCA 101 Haynes v Harwood & Sons [1935] 1 KB 146 Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 Letang v Ottawa Electric Railway Company [1926] AC 725, Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 Osborne v The London and Northwest Railway Company (1888) LR 21 QBD 220 CASES CITED: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 Randwick City Council v Muzic [2006] NSWCA 66 Roggenkamp v Bennett (1950) 80 CLR 292 Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289 Shellharbour City Council v Johnson [2006] NSWCA 67 Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 Smith v Charles Baker & Sons [1891] AC 325 Standfield v Uhr [1964] Qd R 66 Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361 Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 The Insurance Commissioner v Joyce (1948) 77 CLR 39 Thomas v Quartermaine (1887) LR 18 QBD 685 Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904 Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 Tingle v J B Hinz & Sons [1970] Qd R 108 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 Wyong Shire Council v Shirt (1979) 146 CLR 40 PARTIES: Michael Carey (Appl) Lake Macquarie City Council (Resp) FILE NUMBER(S): CA 40917/05 COUNSEL: B J Gross QC/B Dooley (Appl) J Guihot (Resp) SOLICITORS: Carroll & O'Dea (Appl) Hunt & Hunt (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2040/04 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 12 August 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40917/05 2040/04 McCOLL JA McCLELLAN CJ at CL McDOUGALL J THURSDAY 8 FEBRUARY 2007 CAREY v LAKE MACQUARIE CITY COUNCIL Judgment 1 McCOLL JA: I have had the opportunity of reading McClellan CJ at CL's judgment in draft. His Honour has set out the facts and the primary judge's reasons and I shall not repeat those matters save to the extent necessary to give content to this judgment. 2 McClellan CJ at CL has dealt with the case as if the respondent had pleaded voluntary assumption of risk as a substantive defence. With respect to his Honour, in my view this approach is not open as the case was not argued before the primary judge, or in this Court, on that basis. 3 Although the respondent pleaded volenti non fit injuria as a particular of contributory negligence, it did not press that particular either in support of the contributory negligence plea or as a substantive defence. There were lengthy written submissions before the primary judge. To the extent that the defendant relied upon the Assumption of Risk provisions of Pt 1A, Div 4 of the Civil Liability Act 2002, it did so only in response to the appellant's allegation that it had been negligent in failing to warn persons that they would be coming upon poles in the roadway/walkway. (Black 240 [55]–[57]). That was also the approach taken in this Court (Appeal t/s p35. 20-25). 4 Accordingly, I will consider the case on the basis the respondent advanced in this Court, which varied slightly, but not significantly, from its case at trial and having regard to the fact that the appellant confined his case on appeal to the proposition the bollard should not have been in the pathway. 5 The respondent's primary case at trial was that the bollard was an obvious risk and it did not owe a duty of care to the appellant to guard him against risks of that nature. That argument was rejected by the primary judge who, in reliance upon Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 at [57]–[58], concluded that "the formulation of the duty of care should be left in general terms as a duty to take reasonable care to avoid injury and that the determination of what the duty requires in the particular case is a question of fact to be considered when considering the question of breach." The respondent did not challenge that conclusion in this Court but confined its argument to the propositions that his Honour had been correct in concluding that it had not breached its duty of care to the appellant, but that, if it had the appellant has been guilty of contributory negligence to the extent of 100%. 6 The respondent argued that the question of breach had to be considered in the context of the primary judge's finding that the pathway had not been designed for use as a shared pedestrian/cycleway. (Red 21). Accordingly, it argued, the bollard only constituted a potential risk, if at all, to people using the path for a purpose for which it was not designed and, insofar as the appellant was concerned, in circumstances which involved a clear failure to take care for his own safety. 7 While the primary judge did find that the pathway had not been designed for use as a shared pedestrian/cycleway, he also concluded the respondent knew or ought to have known that bicycles would be ridden along the paths in the park. (Red 22). In such circumstances, as McClellan CJ at CL has concluded (at [49]), "… the respondent created a real and significant hazard for cyclists, particularly during the night time." Accordingly, I agree with McClellan CJ at CL's conclusion (at [54]) that the respondent breached its duty of care to the appellant by placing a bollard in the centre of a pathway where it had "little if any practical utility", but posed a risk which was "entirely disproportionate to any benefit, if it had any benefit at all." 8 As to contributory negligence, the respondent submitted that the Court would find the appellant to have been guilty of contributory negligence to the extent of 100%: s 5S, Civil Liability Act. It argued the appellant ought to have been travelling along the lower path at a speed which would have enabled him to avoid any obstacles or persons he may have encountered, including persons who may have been crossing the pathway where it intersected with the stairs leading down to the lower pathway, who might suddenly emerge into his path. It also relied upon the primary judge's finding that the appellant collided with the bollard because he was not keeping a proper lookout. 9 Sections 5R and 5S of the Civil Liability Act provide: "Division 8—Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 10 Section 5R reflects the concepts expressed by Callinan and Heydon JJ in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [220] that the duty to take reasonable care for one's own safety does not "disregard the burden, by way of social security and other obligations that a civilised and democratic society will assume towards [a plaintiff] if he is injured." It also embodies the expectation expressed in the Review of the Law of Negligence, Final Report, September 2002, at para 8.10, that "people will take as much care for themselves as they expect others to take for them": see Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 at [68]–[70]; the words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the plaintiff's position": Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 at [87]. 11 Despite his knowledge of the presence of bollards in the centre of pathways in the park, on the morning he was injured the appellant, as the primary judge found, "did not think about it when he went down that path …". In my view there could be no doubt, applying s 5R, that the appellant was guilty of contributory negligence. First, he took the lower path without thinking about the likelihood he might encounter a bollard. In my view a reasonable person in the appellant's position would have been alert to the risk of encountering a bollard in the dark as he took the lower pathway and should have travelled extremely slowly, braking rather than freewheeling, conscious of what was immediately in front of him and able to stop in a very short distance. The appellant did none of this. Moreover, he agreed that the light from his bicycle would have shone on the bollard and while he disagreed with the proposition that the reason he did not see it was because he was not looking, the primary judge rejected that explanation, finding that "he simply did not keep a proper lookout" (Red 27U). In my view he was guilty of contributory negligence, in a manner causative of his injuries. 12 The task conferred by s 5S of the Civil Liability Act, to determine a "reduction of 100% if the court thinks it just and equitable to do so" invokes the notion of comparative culpability flowing from the like term ("just and equitable") in s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 dealing with apportionment of liability in cases of contributory negligence. This requires attention to the "degree of departure from the standard of care of the reasonable man": Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16. 13 Taking those matters into account, in my view the respondent's culpability was not such as to attract a 100% reduction on account of his contributory negligence. While he did not take precautions against the risk of harm, the respondent's negligence was also causative of his injuries: In my view, the culpability of the appellant and the respondent were equal such that they should bear equal liability for the damage. I agree, accordingly, with McClellan CJ at CL that the appellant's responsibility for the accident should be assessed at 50%. 14 I agree with the orders McClellan CJ at CL proposes. 15 McCLELLAN CJ at CL: On Monday 10 March 2003, at about 5.20 am, the appellant, Michael Carey, then aged 51 was riding his bicycle along a concrete pathway in a public park at Caves Beach, New South Wales when he struck a bollard which was in the middle of the path. He fell off his bicycle and was injured. The appellant sued the respondent, Lake Macquarie City Council, which had the care, control and management of the park and pathway. 16 Garling DCJ gave judgment in favour of the respondent finding that it was not negligent and that the accident was caused by the appellant's failure to keep a proper lookout. His Honour also made an assessment of the damages which he would have awarded if the appellant had succeeded and determined the appropriate sum to be $85,322. 17 The appellant appeals only in relation to the issue of liability. The facts 18 On the morning of 10 March the appellant left his home at about 4.15 am and rode his bicycle to a lookout at the southern end of Caves Beach Park. The park is a large area with many natural features. It includes lengthy concrete paths intended for pedestrian use but which are suitable for use by cyclists. There are separate walkways giving access to the beach and other facilities. 19 Having paused for a time at the lookout the appellant rode back into the park at about 5.15 am. The sun did not rise until 6.48 am. The morning was dark and overcast. 20 The appellant rode some distance on the path through the park until he came to a "Y" intersection where the path divided into two. He decided to do something which he had never done before when riding his bicycle. He usually took the higher path. On this morning he decided to ride along the alternative lower path. After travelling some distance on the lower path he collided with the bollard. It is possible, but not certain, that the appellant saw the bollard just before he collided with it. If he did see it, it was so late that he did not have the time to avoid it. 21 The appellant often rode a bicycle for exercise, and had done so for about 12-15 months before the accident. He regularly went to the park, both on his bicycle and as a pedestrian. He also regularly rode in the park in the early hours of the morning and when it was dark. 22 The appellant's bicycle had a halogen headlight which was on its highest and brightest setting. The halogen light was of a good standard and shone about 2 metres in front, with a beam about 1 metre wide. The trial judge found that the appellant was riding at a speed of 15 to 20 kilometres per hour. When he hit the bollard he was freewheeling down a slight incline. 23 The appellant was aware that there were a number of bollards within the park, located on the paths. They consisted of a single metal pole of a dark blue colour. The bollards were situated mostly in the middle of paths. Some had reflectors on them and some did not. The bollard which the appellant struck had part, at least, of the reflector tape missing. The tape was missing from the side towards which the appellant approached before his accident. 24 When the appellant first rode into the park on his way to the lookout there were a number of bollards which he had to pass. Because of light spilling from the lights in an adjacent car park, the light in this area was better than the light where the accident happened. 25 The trial judge found that cyclists frequented the park on a regular basis. Some would ride their bicycles in the darkness including in the early morning before dawn. There were no signs prohibiting bicycle riding on the pathways. They were clearly an attraction for cyclists. 26 The improvements in the park were designed and built in 1999. It is maintained by the respondent (which has control of the park and the paths within it) but there was no system of regular inspections of the bollards. There was no evidence of any other accident of this nature (ie where a bicycle struck a bollard) over the 4 years between when the park was completed in 1999 and the accident in 2003. 27 The plaintiff gave evidence that his usual pedestrian route to the beach, a walk he often made in daylight, took him along another path which crossed the path he was riding on this morning in proximity to the bollard. He agreed that he would have seen the bollard on many occasions but had failed to appreciate that it would be in his path when approaching it on his bicycle. As the bollard was not an impediment on his path to the beach, he said that he had not previously focused on it or appreciated the danger it could present to a cyclist. 28 Although there was light to the upper pathway, which, like the light at the entry to the park, came from the lights in the adjacent carpark, there was no lighting of any type to the lower path. 29 There was evidence from an officer of the respondent with respect to the purpose of the bollards. Some had been placed in the park to exclude vehicles from entering it and others had been placed so as to prevent maintenance vehicles, which were legitimately in the park, from using the pathway. The bollard which the appellant hit was constructed for the latter purpose. It was also suggested that the bollard may have been placed in the path to stop vehicles using it to access a wooden bridge of light construction to the south. However, that bridge was a considerable distance away and if it required protection this could have been conveniently provided by an obstruction adjacent to it. 30 Being in the middle of the pathway, a bollard in the position where the appellant collided with it could have been easily avoided by a maintenance vehicle. A small deviation off the path was all that was required. The trial judge's reasoning 31 The trial judge found that the respondent owed the appellant a duty of care. This finding was not challenged in this Court by the respondent. His Honour determined that the respondent knew or should have known that persons ride bicycles on the pathways and the respondent had a duty to make them safe for that purpose. The fact that the Council accepted this obligation was evidenced by the placing of reflectors on the bollards. 32 His Honour found that the appellant knew that there were bollards in the park, and that some were located in the middle of the pathways, but the appellant nevertheless chose to ride on the pathways in the dark. Although he had a light, he elected to ride under these conditions, from which his Honour concluded "that the reason he hit the bollard was that he was simply not keeping a proper lookout." His Honour found that he "would have thought that when riding under these conditions he had a responsibility to exercise reasonable care for his own safety and he did not." 33 His Honour considered whether the respondent was liable for having failed to maintain the reflective element on the bollard. He found that the appellant had failed to prove that the maintenance of the bollard was defective or had contributed to the accident. That finding is not challenged by the appellant. His Honour also found that the bollard represented an obvious risk and having regard to the relevant provisions of the Civil Liability Act determined that the respondent had no duty to warn the appellant of the presence of the bollard. The following passage contains his Honour's conclusions: "I have a plaintiff who is a very experienced bike rider, a very experienced bike rider in the early hours of the morning when it is dark. He knows this park extremely well, although I accept not this particular area. Who rides in it regularly in the hours of darkness, who knows that situated in this park are bollards. They are situated right in the middle of the pathway. He knows that some of them have reflective tape on them and some do not. He elects to ride in this park under those conditions. He has to exercise reasonable care for his own safety. He says he does that by riding down an unknown path which is dark, freewheeling on his bicycle at fifteen to twenty kilometres per hour and not seeing, despite the fact he has a light, the bollard. That would seem to me to suggest that the reason he hit the bollard was that he was simply not keeping a proper lookout. Was he perhaps not keeping a proper lookout because he did not expect there would be anything on the path? In other words, not paying careful attention. Yet he knows that in this area, in the middle of paths, are these bollards. I would have thought that when riding under these conditions he had a responsibility to exercise reasonable care for his own safety and he did not. I am just not sure what else the defendant could have done. There was some suggestion that they could have put better lights in the area. The problem with that seems to be the cost involved and the fact that it was not considered necessary. It was suggested that there should be warnings but I am not sure what a warning would have done because the plaintiff knew of the existence of the bollards. The other problem is this: the plaintiff, on his own evidence, says that the bollard, if the light had shone on it, would have been obvious and he simply did not see it. He cannot explain that. In addition to all that I have to deal with the Civil Liability Act and the problems that may create. Section 5 of that Act, 5F, obvious risk, 'An obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Obvious risks include risks that are patent or are a matter of common knowledge. A risk of something occurring can be an obvious risk even though it has a low probability of occurring.' And 5G, 'In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless that person proves on the balance of probabilities that he or she was not aware of the risk.' And 5H, 'A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.' And then there are some exceptions which do not apply. When you put those together this was, as I have said earlier, as far as I am concerned, an obvious risk. It was not as obvious at night as it was in the day time. It was an area the plaintiff knew well. He had passed by this bollard walking on numerous occasions. He was aware there were bollards in the park. In my view, for him, it was an obvious risk. What had actually happened I think he summed up in his evidence by saying he did not think about it when he went down that path. But that makes it no less obvious and I am satisfied there is no duty to warn for that reason and for the other reason I said, that it would not have mattered. There was an argument about s 45. I do not think s 45 was relevant to the decision which I had to make. In the end I am forced to the conclusion that what simply happened here was that the plaintiff was riding of his own free will in a dark area, an area he knew well, although not this path, an area where he knew there were these bollards, he simply did not keep a proper lookout, for some inexplicable reason he did not see the bollard which would have been illuminated by his headlight and riding at the speed he was he could easily have avoided it. He collided with it and I do not believe the defendant was negligent." 34 In my opinion it was appropriate for his Honour to consider whether the risk that materialised was one that would have been obvious to a person exercising reasonable care for his or her own safety. As I have described below, whether a risk is obvious, in the sense of being readily apparent, is relevant to the question of whether or not the defendant has breached its duty of care. However, in the context of breach of duty, the statutory definition of an "obvious risk" in s 5F of the Civil Liability Act has no operation. That definition is expressed to be "for the purposes" of Division 4 of Part 1A of the Act, which has the heading "Assumption of Risk" (note that under s 35(1)(a) the Interpretation Act 1987 (NSW) division headings are to be taken to be part of the Act). Accordingly, his Honour was correct in excluding ss 5F and 5G from his consideration of the question of breach of duty (see C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 per Santow JA at [101]). It is plain from the passage quoted above that his Honour only considered these sections so as to determine, in accordance with s 5H, whether the respondent had a duty to warn the appellant about the risk posed by the bollards. The issues 35 In his notice of appeal the appellant claimed that his Honour had erred in a number of respects. However, on the hearing of the appeal the argument was confined to a submission that his Honour should have found that the respondent had breached its duty of care by placing a bollard in the centre of the pathway at a location where the colour of the bollard and the lack of any artificial light would make it likely that a cyclist would collide with it if riding in the park at night. Although pleaded, his Honour does not seem to have analysed the case from this perspective. 36 Both the appellant and the respondent called expert evidence at the trial. His Honour did not find it to be of assistance. The appellant submitted this was an error and, in particular, emphasised that the relevant Australian standard identifies that a bollard in a pathway represents a likely hazard to cyclists. However, close examination of the standard indicates that the authors are referring to dedicated cycleways or "designed" dual use pedestrian/cycleways. This path was neither. However, as the Council knew, it was commonly used by cyclists. 37 The appellant submitted that when, as here, the Council creates a lengthy series of concrete paths within a park, which is open twenty-four hours per day and does not prohibit cycling, it is inconceivable that cyclists will not use it. Furthermore, it was submitted that it was foreseeable that they will use it at night when a single dark coloured bollard in the middle of the path is a real and significant hazard. Apart from being a hazard to cyclists, it also represented a danger to skate boarders, runners and walkers, all of whom could be expected to use it during the hours of darkness. 38 It was further submitted that, although the appellant knew that there were bollards in the park, the danger of hitting one would not have been obvious to him because he had not previously ridden along this particular path. If, contrary to that submission, the court concluded that it was an obvious risk it was submitted that, there being no reasonable justification for the bollard, the risk was so great that the Council breached its duty of care. It was submitted that if, as the evidence indicated, the purpose of the bollard was to deter council maintenance persons from driving along the path, this could have been done by giving appropriate instructions. The risk of collision with the bollard was submitted to be out of all proportion to the benefit which it was said to have to the Council. 39 The respondent's pleading lacked clarity. Having pleaded various denials, it was pleaded in paragraph 4 of the defence that because the risk was obvious, there was no duty to warn the appellant. Although pursued at the trial the appellant abandoned an argument based on a duty to warn on the appeal. Paragraph 5 pleaded ss 5I and 5L of the Civil Liability Act, which relate to "inherent risks" and "dangerous recreational activities." 40 The respondent also pleaded contributory negligence, of which particular (d) was identified as "volenti non fit injuria." Although pleaded in this manner I infer that the intention was to plead volenti as a defence. I have dealt with the appeal on this assumption. A breach of duty? 41 Although the High Court has considered the matter on a number of subsequent occasions the general principle by which it may be determined whether a public authority has breached its duty of care remains that expressed by Mason J in Wyong Shire Council v Shirt (1979) 146 CLR 40 at 47-8: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have." 42 One question which has troubled the High Court and this Court, since Shirt is whether a defendant is liable for a risk which was obvious. The troublesome question has been whether, because the risk was obvious, the defendant is relieved of a need to guard against it materialising. 43 In Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512, the High Court was concerned with the appropriate principles to apply when determining whether a local authority had breached its duty of care with respect to public roadways. Gaudron, McHugh and Gummow JJ concluded that although people may be expected to avoid obvious hazards some allowance must be made for inadvertence (at 580-581): "The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger. In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care … …persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ), or the surrounding area (as in Buckle , where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. Each case, of course, will turn upon its own facts." 44 In Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407, Giles JA ([31] and [39]) when considering Brodie and Ghantous, said that these authorities: "firmly establish that the content or breach of the duty of care of a council (or other entity responsible for a public area) involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety. On my reading, the reasoning in the joint judgment in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council made the proposition that persons using the road will themselves take ordinary care one of the matters in the balancing of matters in accordance with Wyong Shire Council v Shirt ." 45 In Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904, the High Court considered the case of a delivery driver who injured her back at the respondent's loading dock when she attempted to move an industrial waste bin that was blocking her access. In a joint judgment the court said at [35]-[37] that: "The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response… The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence." 46 The critical factor in the decision to allow that appeal was stated at [138]: "in the circumstances that prevailed, the respondent knew that, frequently, delivery drivers would move the bins. The respondent knew that not all drivers were capable of doing that without risk of injury". Although the risk of attempting to move a heavy bin may have been obvious it was but one factor to be taken into account when considering the defendant's obligation. 47 In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 the High Court considered whether a Council had a duty to erect a warning sign near a rock platform from which the plaintiff dived and was injured. By majority the court upheld the decision of the Court of Appeal that a sign was not required. Vairy was heard together with Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43, which involved an injury sustained as a result of the appellant diving into a shallow creek. 48 In Mulligan Gleeson CJ and Kirby J, who were in the minority (but not in a manner relevant to this issue) concluded that "the obviousness of a danger can be important in deciding whether a warning is required." Whether a warning sign is required "is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that people will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits"[8]. 49 Although their Honours were of course speaking in the context of a failure to warn, their remarks are of universal application whenever a risk, which may be more or less obvious, exists within land under the control of a public authority. 50 On this issue Gummow J said (at [55]): "Something further should be said at this stage respecting the somewhat confused state in which the issues in Vairy came to this Court and were argued here. The plaintiff lost in the Court of Appeal the verdict recovered at trial before Bell J. The leading judgment of Tobias JA placed great weight upon the significance of the notion of obviousness of risk as destructive of the plaintiff's case. In his appeal to this Court, the plaintiff complained of this as displaying error in principle. This point also was stressed in the submissions to this Court in Mulligan . From a reading of the reasons of Tobias JA, there is room for debate as to how determinative of the outcome that weight was. But, in any event, I agree with Hayne J, for the reasons he gives, that reference to a risk being "obvious" cannot be used as a concept necessarily determinative of questions of breach of duty or, I would add, of questions of the existence and content of duty itself." 51 Although it may not be determinative, the obviousness of a risk is a factor to be considered. In the passage with which Gummow J expressed agreement Hayne J said (at [162]-[163]): "The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred in Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754 to as the obviousness of the risk. Reference to a risk being "obvious" is apt to mislead and cannot be used as a concept determinative of questions of breach of duty. Not least is that because obviousness of risk may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Inquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty. That is not to deny the importance of considering the probability of occurrence of the risk in question. The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of inquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. And in looking at the reasonable response to a foreseeable risk it is necessary to recall that there will be times when others do not act carefully or prudently. That is why, as the Court of Appeal recognised ( Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754 at 65,899 [195]), what it referred to as "the obviousness factor" is not to be elevated into some doctrine or general rule of law. It is why little if any assistance is to be gained from considering the several American cases to which the Court of Appeal referred in connection with what was identified as the "open and obvious doctrine" sometimes applied in several jurisdictions in the United States." 52 (See also Callinan and Heydon JJ in Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 at [74]-[77]). 53 This problem has been considered in the Court of Appeal on a number of occasions and there are many helpful statements of the relevant principle including that of Ipp JA in Consolidated Broken Hill Ltd v Edwards (2005) NSWCA 380 at [53]; (2005) Aust Torts Reports ¶81-815: "A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive." 54 This passage has been cited and applied by Hunt AJA in Randwick City Council v Muzic [2006] NSWCA 66 at [24] and Shellharbour City Council v Johnson [2006] NSWCA 67 at [23]; McColl JA in Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [79]; Campbell AJA in Eutick v City of Canada Bay Council [2006] NSWCA 30 at [69]; Ipp JA in Edson v Roads & Traffic Authority [2006] NSWCA 68 at [103]; Tobias JA in Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 at [50]. 55 With respect to the issue of whether the obviousness of a risk is relevant to the existence of a duty of care as well as to breach, this Court has recently held that "the weight of authority in the High Court is that the question of obviousness relates to breach and not to duty" (Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 at [58]). 56 I am conscious of the difficulties of utilising factual determinations in previous cases to assist in the resolution of a factual question in a later case. However, there may be utility in examining how the issue of "readily apparent" danger in the past has been weighed with other factors relevant to the reasonableness of a defendant's response to a risk. 57 In Bernasconi v Newcastle City Council [2005] NSWCA 422, McColl JA at [34] held that uneven pavers in a mall were an obvious risk. Weighed with the other circumstances of the case "including the location of the fall, the nature of the opponent's responsibility in a highly trafficked area and the practicality of remedying unevenness in the Mall", her Honour determined that the trial judge was correct in finding that the Council was not in breach of its duty. 58 In Ainger v Coffs Harbour City Counci [2005] NSWCA 424 at [95], McColl JA held that the defective reconstruction of a footpath where a 10-15 mm lip was left in a path in a busy shopping centre was a breach of duty. The fact that the Council "was on notice as to its existence and had the resources and capacity to remove it" outweighed the expectation that people would avoid the risk of tripping through care for their own safety. 59 Campbell AJA in Eutick v City of Canada Bay Council [2006] NSWCA 30 found a lip in the roadway adjacent to a busy road crossing to be an obvious risk. His Honour rejected the argument that it was unreasonable for the council to expect that people taking care for their own safety would notice the lip while also looking for oncoming traffic and held that the Council's response was appropriate in light of the magnitude of the risk. At [88] and [97] Campbell AJA observed: "Human beings routinely perform far more complex tasks than observing a road surface over which they pass and approaching vehicles. Pedestrians deal constantly and in very large numbers with more dangerous and complex crossings than the one in Great North Road … Crossing over pedestrian crossings is a normal incident of life, particularly in cities and, as with footpaths, they are by no means uniformly smooth and often contain defects, cracks, repaired patches misplaced tiles and other obstacles." 60 In Edson v Roads and Traffic Authority [2006] NSWCA 68, Ipp JA found that the risk posed by crossing a freeway by a particular path was an obvious one. However, his Honour found at [104] that in this case the obviousness of the risk was not conclusive. Ipp JA observed that the obviousness of the risk of crossing at this point was: "not deterring the local inhabitants, of which many were children. The RTA could not assume that most persons would take reasonable care for their own safety … Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result." 61 Likewise, in finding that the defendant had breached its duty of care in Consolidated Broken Hill at [56]-[57], Ipp JA found that the obviousness of the risk of falling off a bridge, where the parking of rail wagons only allowed a small space for passage, was outweighed by the fact that the defendant was a private company (not a public authority) and was aware of the use of the bridge as a short cut. 62 Hunt AJA in Shellharbour City Council v Johnson [2006] NSWCA 67 held that the risk of a collision between cyclists on a blind corner of a cycleway was obvious, but that the risk of injury was serious and the possible means of controlling the danger were "relatively inexpensive." At [25]-[26] Hunt AJA found that the Council's response to the risk was unreasonable and in breach of its duty of care. 63 In Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 at [29], Basten JA found that a patch of spilt oil in a carpark on a cloudy afternoon was not obvious in the sense that it implied a finding "that a person taking reasonable care for their safety, whilst walking across the car park, need necessarily look at the ground in those circumstances." 64 In Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 Tobias JA held that a low slung rope bordering a car parking area adjacent to playing fields was not an obvious risk. At [49] his Honour distinguished this risk from: "A case of uneven paving stones or holes or the other kinds of hazards which a pedestrian should expect in the course of walking along a public street in an urban area. There was nothing associated with the natural state or condition of the ground upon which the appellant was walking which would constitute an obvious hazard of the nature of those referred to in the pedestrian cases. In the present case, the respondent had erected a rope barrier which, to any person who did not anticipate its presence, clearly constituted a trap for pedestrians who were, in effect, invited by the respondent to use the entranceway as a pedestrian route from the carpark to the playing field." 65 There are obvious difficulties in describing a risk as obvious when the level of risk may vary depending on the time of day or the person who must confront it. During the day, a bollard in a pathway would be obvious to any sighted person who was keeping an appropriate lookout. However, a bollard in a pathway at night is unlikely to present an obvious risk except to someone, who, from having seen it during the daylight, is conscious of its presence. Accordingly, a risk will be obvious when it is capable of being readily appreciated at the time that a person comes upon it. As Basten JA said in Timberland Property Holdings Pty Ltd at [25]: "However, obviousness depends to a significant extent on the circumstances and position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances." 66 In the present case, although the bollard was obvious in the daytime, by putting it in the middle of the pathway the respondent created a real and significant hazard for cyclists, particularly during the night time. On a dark night, cyclists, even with the usual light on their bike, would be unlikely to see a bollard without a reflector. Furthermore, it was entirely foreseeable that the reflector tape would be missing at times. 67 It was accepted by the respondent that the purpose of the bollard was confined to deterring park maintenance workers from driving along the path. However, not only were those workers amenable to direct control by the Council, a slight deviation would enable a moderately determined driver to avoid the pole and continue along the path. Although it might operate as a reminder to a misbehaving worker it was hardly a significant impediment to their misbehaving. 68 To my mind the particular bollard was of little if any practical utility. Because it was in the middle of the path, it was a serious hazard for cyclists and others using the path at night. In my opinion there was no reasonable justification for creating that risk and the Council accordingly breached its duty of care to the appellant. The risk which the bollard created was entirely disproportionate to any benefit, if it had any benefit at all. 69 In my opinion the trial judge should have found that by placing the bollard in the centre of the pathway the Council breached its duty of care to the plaintiff. Voluntary assumption of risk: the effect of sections 5F and 5G of the Civil Liability Act 2002 (NSW) 70 The Latin maxim "volenti non fit injuria" originated in the civil law and literally refers to the situation where a free citizen of Rome would, in concert with another, permit himself to be sold as a slave in order to share in the purchase price. Although such a person could be said to have suffered an injury, "he was in the strictest sense of the term volens" (Smith v Charles Baker & Sons [1891] AC 325 per Lord Watson at 355). 71 The statutory scheme created by Division 4 of Part 1A of the Civil Liability Act is not expressed with clarity (see, eg, B. McDonald, "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia" (2005) 27 Sydney Law Review 443). The heading to the Division suggests that the provisions relating to "obvious risk" were enacted for the purpose of informing the common law defence of voluntary assumption of risk. The Ipp Report reinforces this conclusion (see below). The statutory definition of obvious risk also applies in relation to the duty to warn (s 5H) and in relation to obvious risks involved in dangerous recreational activities (ss 5K and 5L). The provisions do not otherwise impact on the law of negligence (C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 per Santow JA at [101]). 72 The Privy Council considered the defence of volenti non fit injuria, or voluntary assumption of risk, in Letang v Ottawa Electric Railway Company [1926] AC 725, which was an appeal from a decision of the Supreme Court of Canada. At 731 Lord Shaw of Dunfermline adopted the following passage from Wills J's judgment in Osborne v The London and Northwest Railway Company (1888) LR 21 QBD 220 at 223-224: "If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it." 73 In Roggenkamp v Bennett (1950) 80 CLR 292 at 300, a majority of the High Court (McTiernan and Williams JJ) stated: "Taking the defence of volenti non fit injuria, the onus was on the respondent [i.e. the defendant] to prove this defence. The elements of the defence are conveniently stated in Halbury's Laws of England , 2nd ed., vol. 23, at pp. 716-718. There it is said that: 'In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of the danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk. The question whether the plaintiff's acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances…'" 74 Kirby J has recently restated the defence as follows: "To satisfy the test of voluntary assumption of risk, it must be shown that the claimant fully comprehended the extent of the risk and chose to accept or ignore it" (Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 at [125]). In Randwick City Council v Muzik [2006] 66 at [48], Hunt AJA said "a defendant who advances this defence must establish that the plaintiff perceived the existence of the danger, that he fully appreciated it and that he voluntarily agreed to accept the risk." 75 At common law, the test of voluntary assumption of risk is a subjective one. The defendant must prove actual knowledge on behalf of the plaintiff (Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289). The plaintiff must have actually perceived and fully appreciated a risk before he or she could be said to have voluntarily accepted it. Actual knowledge will be more readily inferred where a risk is obvious (The Insurance Commissioner v Joyce (1948) 77 CLR 39 at 57 per Dixon J; Roggenkamp v Bennett at 300 per McTiernan and Williams JJ), but a risk does not have to be obvious in order to satisfy the test. 76 It is important to keep in mind that knowledge of a risk is not itself sufficient to make out the defence. It has been repeatedly pointed out in the authorities that the test is volenti non fit injuria, not scienti non fit injuria (Thomas v Quartermaine (1887) LR 18 QBD 685 per Bowen LJ). That is, proof of knowledge is necessary but not sufficient in order to prove that the plaintiff voluntarily agreed to accept the risk. A plaintiff is not presumed or deemed to have voluntarily accepted a risk merely because he or she knew about it and exposed themselves to it. However, there will rarely, if ever, be direct evidence that a plaintiff voluntarily agreed to accept a risk. Their agreement will usually have to be implied or inferred from their conduct. In Roggenkamp at 300, McTiernan and Williams JJ (quoting from the 2nd edition of Halsbury's Laws of England) state: "The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not." 77 Accordingly, where the defence is raised, the tribunal of fact will usually be entitled (but not bound) to infer that the plaintiff voluntarily accepted a risk when it is proved that the plaintiff actually perceived and fully appreciated the risk. Since the question is a question of fact, "there is no arbitrary rule of law which decides it" (Smith v Charles Baker & Sons [1891] AC 325 at 357 per Lord Watson). 78 It is not enough to show that a plaintiff merely agreed to accept a risk. The agreement must in a real sense be voluntary. Dixon J stated in The Insurance Commissioner v Joyce (1948) 77 CLR 39 at 57 that: "…under modern authority consent or voluntary assumption of risk is not to be implied where, notwithstanding knowledge, the person concerned has exposed himself to the danger only because of the exigency of the situation in which he stands. If he has no real or practical choice he does not voluntarily consent." 79 Accordingly, courts have been very reluctant to infer voluntary agreement in cases where the alternatives to accepting the risk are onerous or repugnant, such as where avoiding the risk would require the plaintiff to give up their employment (Smith v Charles Baker & Sons [1891] AC 325) or not to rescue another person from danger (Haynes v Harwood & Sons [1935] 1 KB 146 at 157). In Standfield v Uhr [1964] Qd R 66, the plaintiff jockey lost his leg when the horse he was riding shied from a tractor and ran into a railing during a barrier trial. The plaintiff knew that the horse was likely to shy from a tractor, he knew that a tractor was in the vicinity, but he was not aware that it was beside part of the track where his horse would run during the barrier trial. He did not become so aware until the race had commenced. Mansfield CJ said: "…I hold the view that the evidence establishes that the plaintiff was in a dilemma, or in what he might properly assume to be a dilemma, and that he cannot be held to have voluntarily assumed the risk of injury by taking the course which he took. From the time the plaintiff saw the tractor after the horses commenced galloping until the time when he came into the danger area, only a few seconds had elapsed. His horse was at that time leading the field and if he had pulled up there was a likelihood that he would have interfered with the horses following and thereby caused danger to them and to their riders as well as himself. A decision, if there can be said to have been a decision, to continue to gallop, taken in that space of time and in those circumstances, is not in my view a free and voluntary decision because he had no real or practical choice." 80 As was stated by Swift LJ in Bowster v Rowley Regis Corp [1944] 1 KB 476 at 479, a free and voluntary choice requires not only full knowledge on the part of the plaintiff, but also "the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will." 81 It may be easier to infer voluntary agreement when the plaintiff's injury follows a positive act of the plaintiff rather than an omission (Smith v Charles Baker & Sons [1891] AC 325 per Lord Halsbury LC at 338; Lord Watson at 357). The rationale behind this distinction is not entirely clear, but it would seem to be because a positive act may more readily be seen as evidence of a conscious choice than will an omission, which in many cases will be more easily characterised as the product of inadvertence rather than free choice. 82 Even if a plaintiff perceived and fully appreciated a risk, the inference of free and voluntary agreement cannot be made if the plaintiff had a genuine belief that the risk would not materialise. This is because a person cannot agree to accept something that they honestly believe will not happen. Accordingly, the 16 year old plaintiff in Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361 was found not to have voluntarily accepted a risk because, although he got into the car with a driver who he knew was drunk, the plaintiff nevertheless thought that the driver "seemed alright." In Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24 the cyclist perceived and fully appreciated the risk that he might collide with a footballer at a municipal playing field which had a dual use as a velodrome and football field. However, Ipp AJA said (at [145]-[147]): "As Burt CJ said in Jeffries v Fisher [(1985) WAR 250] (at 253): 'Of course in many cases that appreciation and acceptance [of the risk] can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient…' It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists' path. He may well have believed that the touch football players were quite capable of acting without negligence and would play their game in safety. These issues were not properly investigated at the trial. What evidence there was on the issue tends to support a finding that the respondent did not expect that the risk would materialise. A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers: cf O'Shea v The Permanent Trustee Company of New South Wales Limited (1971) Qld R 1; Suncorp Insurance & Finance v Blakeney; State Government Insurance Company v Hitchcock (unreported, Full Court, Supreme Court of Western Australia, delivered 11 March 1997)." 83 This passage is open to misinterpretation. In a recent article ("Personal responsibility and the 'new' volenti" (2005) 13 Tort L Rev 76), Associate Professor Lunney refers to Canterbury Municipal Council and says (at 86): "In this case, Ipp AJA held that a belief by the plaintiff that the dangers would not materialise would negative the proposition that the dangers had been accepted. Taken literally, this would require the plaintiff to expect injury as a result of the conduct. It is difficult to imagine any plaintiff testifying that they expected to be injured as a result of his conduct. Rather, the question is whether the plaintiff accepted the risk of injury." 84 Lunney's conclusion is correct but his analysis of Canterbury Municipal Council may not be. There is a very real difference between the proposition (which Ipp AJA advanced) that a belief that a risk will not materialise will negative consent to the risk, and the proposition (which Lunney attributes to his Honour) that consent can only be inferred where the plaintiff believed that a risk would materialise. All that must be proved is that the plaintiff voluntarily accepted a chance that a perceived and fully appreciated risk would materialise. A genuine belief that the risk would not materialise will negative the defence, but a positive belief that the risk would materialise is not required to make the defence out. 85 From these decisions it is apparent that to make out the defence of volenti the defendant must prove the following three elements: 1. That the plaintiff perceived the existence of the danger; 2. That he or she fully appreciated it; 3. That he or she freely and voluntarily agreed to accept the risk. 86 Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that: "Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed.) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things." 87 Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) – particularly ss 5F and 5G – was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p. 129 indicates that the intention of Division 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that: "The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way." 88 Accordingly, the Report recommended the enactment of the following provisions: · A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30); · A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31). 89 Sections 5F and 5G of the Civil Liability Act 2002 (NSW) are in the following terms: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 90 The effect of these provisions is that a plaintiff is rebuttably presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. A plaintiff cannot rebut the presumption by claiming that even though he or she was aware of the general risk of harm, he or she was not aware of all its possible manifestations, including the one that eventuated. 91 This of course begs the question: what risks are the provisions directed to? It serves no purpose to answer that they are directed to "obvious risks," because no conclusion can be reached as to whether or not a risk is obvious until the risk itself is identified. This problem was noted by Bryson JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136. That case involved a woman who injured herself in a hotel when she slipped on a wooden floor. Her fall was caused by a residue of polishing liquid that had not been properly removed from the polished floorboards. A cleaner was in the room polishing a different section of the floor when she slipped. Bryson JA said (at [172]-[175]): "The course of argument requires consideration whether Ms Hutton-Potts' injury was caused by an obvious risk [as defined in s 5F] of such an injury occurring. Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted Ms Hutton-Potts can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured. If it were to be said that that risk was obvious it would, in the application of the meaning of 'obvious risk' to the facts, have to be said that a reasonable person in the position of Ms Hutton-Potts who entered the room would have seen that Mr Elder was in the room, and would have gone further and considered what he was doing, and would have gone further and noticed that he was buffing the floor with a buffing machine; and that it would have been obvious to the reasonable person who did those things that there was a risk of slipping on the floor because it was recently polished. However that would not be enough to show that Ms Hutton-Potts suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what Mr Elder was doing, but advertence to the risk that he was not doing it properly. When the risk is stated at this degree it is in my opinion quite unsustainable that it should be found as a fact that there was an obvious risk to which the provisions of Div 4 applied; obviously so." 92 In Great Lakes Shire Council v Dederer [2006] NSWCA 101 Ipp JA said (at [157]-[159]): "In dealing with the defence of voluntary assumption of risk raised by the RTA and the Council, Dunford J [the trial judge] said: 'What must be established for that defence is that the plaintiff not only knew of the risk or danger, but he fully comprehended the nature and extent of the risk and accepted such risk. For the reasons given above in relation to obviousness of the risk, I am satisfied that the plaintiff did not fully comprehend the nature and extent of the risk involved, and accordingly this defence fails.' This finding, I think, means that Mr Dederer knew of the risk that he might be injured by diving from the bridge but did not fully comprehend that the risk was of diving into shallow water and that the risk was of serious injury to the spine. This reasoning is directly contrary to s 5G(2) of the Civil Liability Act … I would add that Dunford J appears to have decided the question of obviousness of risk by reference to what Mr Dederer subjectively knew and not by reference to a reasonable person in his position, as s 5G requires." 93 The question which must be asked in the present case is whether the conduct of the plaintiff involved a risk of harm that would have been obvious to a reasonable person in his position. 94 In Fallas v Mourlas [2006] NSWCA 32 Ipp, Basten and Tobias JJA determined that "the position of the plaintiff" comprehended the particular circumstances in which the risk materialised and the harm was suffered. Ipp JA (Handley and Tobias JJA agreeing) adopted the same approach in Dederer [151]-[152]). The position of the plaintiff will include the plaintiff's knowledge and experience of the relevant area and conditions (see Ipp JA Dederer at [152] and Santow JA in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at [106]-[108]). 95 In Dederer, a 14 year old boy suffered severe spinal injury after diving off a bridge into a lake. Ipp JA, applying Fallas v Mourlas, said: "Whether this risk was obvious (within s 5F of the Civil Liability Act ), to a person in the position of Mr Dederer, has to be answered objectively, attributing to the notional reasonable fourteen and a half year old person the knowledge of the area and conditions possessed by Mr Dederer at the time." 96 His Honour noted at [164] that it was not "Mr Dederer's state of mind that counts, but that of a reasonable person in his position. Nevertheless, his evidence, I think, is relevant to a consideration of what a reasonable person would know about the risk." Ipp JA took into account Mr Dederer's knowledge that there was variable water depth, a sign prohibiting diving, and a sandbar near the place in which he dived. 97 The "reasonable person in the position" of the plaintiff has also been held, in several cases, to take account of the age, experience and personal characteristics of the person. Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 concerned an accident where a child fell through the skylight of a community centre. Ipp JA (Spigelman CJ and Tobias JA agreeing) at [70] rejected the argument that the risk was obvious under s 5F. His Honour considered that to a young boy the risk of climbing on the roof was not an obvious one, particularly where this was a common pursuit. Likewise, Doubleday v Kelly [2005] NSWCA 151 concerned an injury to a child who attempted to roller skate on a trampoline. Bryson JA (Young CJ in Eq and Hunt AJA agreeing) at [28] held that the risk was not obvious to a reasonable person in the child's position. His Honour noted that: 'The characteristics of being a child of seven with no previous experience in the use of trampolines or roller skates, who chose to get up early in the morning and play unsupervised, is part of that position.' 98 In the present case a "person in the position of the appellant" would be an experienced cyclist in his 50s, with knowledge of the presence of the bollards within Caves Beach Park and with knowledge gained as a pedestrian that there was a bollard on the lower path. It would have been obvious to a reasonable person in that position that riding along the lower path in the dark would involve the risk of hitting unexpected obstacles, the most obvious of which may have been pedestrians or another cyclist. The effect of s 5G(2) is to deny the appellant an opportunity to avoid the defence of volenti by pleading that he was not aware of the "precise nature, extent or manner of occurrence of the risk." Accordingly, as it must be concluded that he was aware of the risk of hitting an obstruction in the dark, the appellant could not successfully plead that he was not aware of the risk of hitting a bollard or of hitting this particular bollard. 99 However, before the defence is made out the defendant must prove that the plaintiff voluntarily accepted the risk of which he or she is deemed to be aware. In the present case, the appellant voluntarily chose to ride in the park when it was dark. He chose to take the lower path which he had never previously ridden and which had less artificial light than the upper path. However, his evidence, which was not challenged, was that, as opposed to consciously accepting a risk, he simply did not think about it. Relevant extracts from his evidence include: "Q. How is it that you say you didn't know it was there? A. I possibly could have seen it but I certainly didn't take it in. It never computes in me that, you know, there's a bollard there. Usually when you're walking down through there you're either looking to the left or the right, making sure there's no bicycles coming, or no pedestrians or dogs which is also used through the park [sic]. I guess also that I'd be intent on getting to the beach and enjoying my day… Q. Even though you'd never, on any occasion, ridden down the pathways, you say you made a deliberate decision to go that way? A. I don't know that it was deliberate, it was a decision that I decided to turn to the right. I didn't think about it before I got there sir. … Q. You knew there was no artificial light illuminating that area through which the lower pathway ran. There's no doubt about that is there? A. I didn't know. There is a doubt about that. I did not, I did not know, I did not even assume, I never even thought of that situation as I was approaching that particular fork in the road. Q. You're not suggesting that when you made the decision to turn right, that you expected the lower pathway to be floodlit to illuminate the area through which you were to ride. You're not suggesting that are you? A. No I'm not, no. Definitely not. Q. You knew it was likely to be darker than the level over which you'd ridden hundreds of times to go to the lookout. There's no doubt about that either is there? A. I never considered that fact at all sir. I proceeded down that turn with my light on and I didn't consider the fact of whether it was going to be light or dark or anything else. … Q. I'm suggesting to you that you couldn't have been concerned about the state of light after you had gone into the lower pathway, and I'm suggesting to you that the indication for that lack of concern was because if you had been concerned, you could have simply put the brakes on, turned the bike around and travelled back to the car park area, which journey would have taken a matter of seconds, do you agree with that? A. I don't agree with it, no, I didn't even consider that fact. It was not something that entered my mind. I was cycling down towards the wire section [sic – "Y" intersection], from there I made a decision to go right, first time that I'd ever done that one, and I didn't think oh whoops, perhaps I should go back cause it's dark. The distance that I travelled, my lights, I could see the pathway, I could see from both the left to the right-hand side the width of the pathway, which I believe to be a little over a metre, and I could see clearly enough to continue on cycling down there. I never considered going back to go out the way that I'd normally go. Never even entered my mind. Q. Well, but the reason that it didn't enter your mind is because there was no concern on your part about the light? A. It wasn't even an issue because it never came into my head to even consider it, so I would not even think that I could possibly be concerned. … Q. Do I take from your answer this, that by continuing you felt that the light on your bike was adequate for the journey that you were going to make? A. I would agree with that." 100 The trial judge's findings as to the appellant's credit were favourable to him. As to the appellant's knowledge his Honour said: "It was not as obvious at night as it was in the day time. It was an area the plaintiff knew well. He had passed by this bollard walking on numerous occasions. He was aware there were bollards in the park. In my view, for him, it was an obvious risk. What had actually happened I think he summed up in his evidence by saying he did not think about it when he went down that path … " 101 Although it may be that his Honour did not give particular consideration to the defence of volenti, this conclusion is relevant to the second limb of the elements of the defence. His Honour found, in my view correctly, that the risk was obvious. However, his Honour did not find that the appellant accepted the risk. His conclusion was that the appellant simply did not think about it. 102 Although the appellant gave answers to other questions which were equivocal, the evidence to which I have referred, together with his Honour's finding, preclude a finding by this Court that the appellant voluntarily agreed to accept the risk of a collision when cycling the lower path. Although the appellant may have been aware of the bollard in the pathway, proof of knowledge of a risk is not of itself sufficient to make out the defence of volenti non fit injuria. The respondent must prove that the appellant voluntarily assumed the risk, not merely that he knew about it. Although the appellant was aware of the risk in the present case, his evidence discloses that he did not think about it when he turned down the lower path. The trial judge formed a favourable view of the appellant's credit and accepted the appellant's evidence in respect of this issue. In these circumstances, this Court could not infer that the appellant freely and voluntarily agreed to accept the risk that he would collide with a bollard. Inadvertence to a known risk is not the same as agreeing or consenting to accept it. It may amount to contributory negligence, but it is not the voluntary assumption of risk. 103 I should emphasise that there may be cases where a court can infer that a plaintiff has voluntarily assumed a risk from the fact that the plaintiff has exposed themselves to a risk of which they were aware. This will usually be the only way in which the third element of the defence of volenti can be made out. However, this inference is not available merely because the plaintiff knew of the risk when they engaged in the relevant conduct. The drawing of the inference is always a question of fact that must be considered on a case by case basis. 104 In the present case, the appellant's evidence is inconsistent with the inference that he voluntarily assumed the risk that he might hit unexpected obstacles. That is not because the appellant says he was not aware of the risk. Rather, it is because the appellant says – and the trial judge accepted his evidence on this point – that even though he was aware of the risk, he did not advert to it when he turned down the lower path. This is not a logically inconsistent or even a far-fetched proposition. On a day-to-day basis people expose themselves to known and obvious risks without thinking about them. Everyone knows that when they drive their car there is a risk of being injured by the negligence of other drivers. The risk is obvious but it is not a risk that most people advert to when they get into their cars. It is not a risk that they voluntarily accept, even when their decision to drive is entirely free from external compulsion (such as the need to get to work or to take a relative to hospital and so on). If this were not so then it would be hard to see how, in light of ss 5F and 5G, a driver who is at fault in a collision with another moving vehicle could ever be held to be liable in negligence, except in circumstances where the plaintiff's decision to drive was not free and voluntary in the sense already described. This would have the absurd outcome that people who are injured whilst driving to work could recover from the defendant, whilst people who are injured in exactly the same circumstances could not recover if they were on their way to the cinema, or leaving on a holiday. It is not hard to think of other examples. The point is that a person can be aware of an obvious risk without adverting to it when they expose themselves to the risk. 105 Courts have been careful to distinguish between the concepts of awareness of risk and acceptance of it since at least the nineteenth century. In Smith v Charles Baker & Sons [1891] AC 325, Lord Halsbury LC said: "… in both Thomas v Quartermaine [18 QBD 685] and in Yarmouth v France [19 QBD 647], it has been taken for granted that mere knowledge of the risk does not necessarily involve consent to the risk. Bowen LJ carefully points out in the earlier case ( Thomas v Quartermaine [18 QBD 685 at 685]) that the maxim is not 'Scienti non fit injuria,' but 'Volenti non fit injuria.' And Lindley LJ, in quoting Bowen LJ's distinction with approval, adds ( Yarmouth v France [19 QBD 647 at 660]): 'The question in each case must be, not simply whether the plaintiff knew of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff" (emphasis added). 106 Indeed, in the context of voluntary assumption of risk, the reason why a defendant has to prove that a plaintiff has knowledge of the risk is because knowledge is an ingredient of the wider concept of voluntary agreement. It is merely a step on the way to proof that a plaintiff has voluntarily assumed a risk. 107 The question is not simply whether the plaintiff freely and voluntarily decided to embark upon a course of conduct that involved a risk of which he or she was aware. There must also be some conscious advertence to the possibility that the known risk might eventuate, and a decision to proceed with the conduct regardless. It is not enough that the plaintiff knows of the physical facts or circumstances that constitute the risk and exposes him or herself to them, although proof of this will in many cases be sufficient to support an inference that the plaintiff voluntarily assumed the risk. After citing the above passage from Lord Watkin's judgment in Smith v Charles Baker & Sons [1891] AC 325 at 335, Balkin and Davis state in the second edition of their work Law of Torts (at p 354): "This means that, for the defence to operate, it must be proved that the plaintiff has assumed not merely the risk of physical injury but also the legal risk consequent upon that injury." 108 If all that can be proved is that the plaintiff knew about a risk but did not think about it when he or she engaged in conduct that exposed him or her to the risk, the defence has not been made out. To assume a risk, a plaintiff must know about the risk, he or she must turn their mind to it at the relevant time, and he or she must persist in the risky conduct regardless. 109 In my opinion, if pleaded, as I believe the respondent intended, it failed to make out the defence of volenti. Contributory negligence 110 The appellant was riding in the dark, at some speed and without lighting on his bicycle, which would enable him to avoid unexpected obstacles. He was obliged to look out for his own safety by travelling at an appropriate speed and taking reasonable care to avoid obstructions. Although in my opinion the respondent owed a duty to the appellant, which it breached, I do not believe it should be found to be entirely responsible for the appellant's injuries. 111 It is difficult to be definitive about the contribution which the appellant made to the accident. However, I am satisfied that the combination of his speed and lack of forethought, when riding in the dark, make it appropriate to assess his responsibility for the accident at fifty percent. Orders 112 In my opinion subject to any further submissions which the parties may wish to place before the court relating to interest or costs the following orders are appropriate: 1. Appeal upheld. 2. Verdict and judgment for the appellant in the sum of $42,661.00. 3. The respondent is to pay the appellant's costs of the appeal and in the court below. 113 McDOUGALL J: I have had the advantage of reading in draft the reasons of McColl JA and McClellan CJ at CL. 114 The trial judge found that the respondent (the Council) owed the appellant (Mr Carey) a duty of care. The Council did not challenge that finding in this Court. I agree with McClellan CJ at CL, for the reasons his Honour gives, that the Council breached that duty of care. 115 McClellan CJ at CL deals at length with the question of voluntary assumption of risk, on the basis that the Council intended to rely upon it as a substantive defence. However, in my view, on a fair reading of the Council's pleaded defence the relevance of voluntary assumption of risk was limited to: (1) Mr Carey's pleaded "failure to warn" case; and (2) contributory negligence. 116 The Council did not seek, either before the trial judge or in this Court, to rely upon what might be called a substantive defence of voluntary assumption of risk. That is to say, the Council did not seek to argue, either before the trial judge or in this Court, that it had no liability to Mr Carey because he had voluntarily assumed the relevant risk. 117 The interaction of ss 5F and 5G of the Civil Liability Act 2002 with the common law concept of voluntary assumption of risk gives rise to very difficult questions. In my view, having regard to the way the case was argued both before the trial judge and in this Court, it is not appropriate to consider those questions, or the substantive defence of voluntary assumption of risk, on this appeal. I therefore agree with McColl JA as to the basis on which this Court should dispose of the appeal. On that basis I agree with McClellan CJ at CL that the appeal should succeed as to liability. 118 As to contributory negligence, I agree with McColl JA and McClellan CJ at CL that, on the facts of this case, Mr Carey's responsibility for the accident that he suffered should be assessed at 50%, and that damages should be reduced accordingly. 119 Subject to any submissions as to interest or costs, I agree with the orders proposed by McClellan CJ at CL. ********** 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. 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