Shellharbour City Council v Johnson [2006] NSWCA 67

New South Wales Court of Appeal

CITATION: Shellharbour City Council v Johnson [2006] NSWCA 67

HEARING DATE(S): 14 February 2006

JUDGMENT DATE: 6 April 2006

JUDGMENT OF: Beazley JA at [1]; Tobias JA at [2]; Hunt AJA at [3]

DECISION: (1) Leave to appeal is granted.; (2) The appeal is dismissed.; (3) The appellant is to pay the respondent's costs.

CATCHWORDS: Cyclists invited by council to use laneway to gain access to cycleway — blind spot at intersection of laneway and cycleway — fence to right of laneway and tree alongside cycleway as it curves to right — difficult for persons in laneway and cyclists on cycleway to see each other until reaching the curve itself — risk of collision obvious — intersection inherently dangerous and "trap" — duty of care owed — whether duty owed to person who fails to take reasonable care for his or her own safety — risk of collision could not be avoided if council's invitation to use area is accepted — council not relieved of duty to take reasonable measures to guard against risk — appeal against liability dismissed.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Clarke v Coleambally Ski Club [2004] NSWCA 376 Commissioner for Railways v Anderson (1961) 105 CLR 42 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Lake Macquarie City Council v Holt [2004] NSWCA 305 Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 CASES CITED: Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 Newcastle City Council v McShane [2004] NSWCA 425 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Swain v Waverley Municipal Council (2005) 220 CLR 517 Temora Shire Council v Stein [2004] NSWCA 236 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Vairy v Wyong Shire Council (2005) 221 ALR 711 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460