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 PARTIES: Shellharbour City Council – Claimant Aaron Johnson – Opponent FILE NUMBER(S): CA 40238/05 COUNSEL: P Garling SC – Claimant SG Campbell SC – Opponent SOLICITORS: Leitch Hasson Dent – Claimant DGB Lawyers – Opponent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 142/01 LOWER COURT JUDICIAL OFFICER: Quirk DCJ 1 BEAZLEY JA: I agree with Hunt AJA. 2 TOBIAS JA: I agree with Hunt AJA. 3 HUNT AJA: The opponent, Aaron Johnson, as plaintiff sued the claimant, Shellharbour City Council, as defendant in the District Court, claiming damages for personal injuries sustained by him on 9 August 1995 whilst he was riding his bicycle on to a cycleway in Albion Park when he collided with another cyclist. The plaintiff was seventeen years old at the time of the collision. 4 The trial judge made the following findings as to the circumstances of the collision. The cycleway is situated in the Con O'Keefe Oval, which is near the Albion Park High School. The cycleway is part of the oval which is used by both cyclists and pedestrians. The cycleway is accessible from nearby Supply Court by a laneway. At the time of the collision, the plaintiff was living with his parents at their home in Charlotte Crescent Albion Park, which is near Supply Court. 5 The laneway slopes downwards when approaching the cycleway, dropping approximately 1.2 m over its 28 m length. It joins the cycleway at a sharp angle at a point where the laneway runs parallel to a private property on its right surrounded by a tall fence, at least six feet high. The cycleway curves to the right, around a tall tree alongside it. The turn to the right, the high fence and the tall tree make it difficult for those in the laneway, and those on the cycleway approaching the intersection from the right of those in the laneway, to see each other. 6 Prior to the collision, three concrete bollards had been erected at the point of intersection of the laneway with the cycleway so as to prevent access to the Con O'Keefe Oval by motor vehicles. However, the bollards were far enough apart from one another to enable a cyclist entering or leaving the cycleway to ride between them without the need to dismount. 7 On the day of the collision, the plaintiff rode his bicycle along the laneway and passed between the bollards on to the cycleway. He gave evidence that he had to slow down to go through the bollards, evidence which the judge appears to have accepted. One or two metres past the bollards, he collided head-on with another cyclist on his right who was travelling towards him along the cycleway. He described the collision as a "hard" one. Although the plaintiff said in his evidence that he did not remember whether he collided with a cyclist or a pedestrian, the judge accepted the accuracy of the history he gave when admitted to hospital on the day of the collision, that it was a cyclist. 8 The plaintiff conceded that he knew that joggers, walkers, cyclists, skateboarders and pedestrians used the cycleway, and he acknowledged that he had to look out for them. He said that he was always conscious of looking out for pedestrians. He nevertheless accepted that he did not see the person with whom he collided until just before the collision. 9 The plaintiff was thrown from his bicycle, and he suffered head and facial injuries including avulsion fractures to three front teeth, and a fourth tooth was broken in half. He was taken to hospital where his gums were sutured. His broken tooth was extracted about five weeks later. He had dentures fitted approximately six months after the collision. The plaintiff became depressed about his appearance following his injuries, and he began to withdraw from his social circle. He had previously led an active social life, but he disliked the reaction of people to his facial disfigurement, and he joined another group who accepted his appearance, but with whom he would not otherwise have associated. The judge also found that he commenced to use cannabis, rejecting a suggestion in the hospital records that he had used cannabis before the accident. The plaintiff said that initially this was to ease his pain but he quickly became addicted. His mother, whose evidence the judge accepted, said that the plaintiff had changed dramatically after the accident. From being an excellent child with everything to live for, he had become withdrawn from his family and former friends. He still suffered embarrassment about his appearance at the time of the trial in 2004. 10 At the time of the collision (in 1995), the plaintiff had been studying at Wollongong TAFE to be an apprentice electrician. After the collision, he continued to attend his course until about April 1997 when he had a psychotic episode (apparently as a result of his cannabis use), and he was admitted to Shellharbour Psychiatric Ward. He obtained work as an apprentice carpenter in 1998, but ceased work in late 1999 or early 2000 due to an injury to his back. In the eighteen months prior to the trial, the plaintiff had ceased using cannabis and was working as a truck driver and a machinery operator. 11 Shortly after the plaintiff's collision, the defendant removed two of the three bollards and replaced them with tubular barriers, described as a "fixed gating feature" frequently used at the intersection of pathways and roads, which had the effect of slowing and redirecting pedestrians and cyclists before they entered the cycleway. Three tubular barriers were placed in the ground. They go up to about waist height and two of them are the same width whilst the third is about as wide as the other two combined. One narrow barrier is placed near each outer edge of the laneway. They are in line with one another. The wide barrier is about two to three feet closer to the cycleway than the narrow barriers. It is placed in the centre of the laneway so that its outer edges overlap with the inner edge of each of the narrow barriers. This ensures that a cyclist now cannot ride directly onto the cycleway, but must demount and push his or her bicycle through the space between these tubular barriers. 12 Judge Quirk found that the risk of injury by collision at the intersection of the cycleway and the laneway was foreseeable, indeed it was an obvious risk, the means of avoiding that risk had been established by the steps taken by the defendant shortly after the plaintiff's collision, and that the cost of $500 in taking those steps was a modest expense. The defendant had therefore been negligent in failing to take those or similar steps before the collision. 13 The judge accepted that the accident resulted in a psychiatric disturbance, including depression, at an impressionable stage of the plaintiff's adolescence. He has continuing headaches, a distorted facial appearance, and dentures. His earning capacity was affected by his psychological problems and his resulting cannabis abuse, with at least one period of admission to a psychiatric unit. The judge allowed a loss of wages for a considerably shorter period than that claimed. The past and anticipated future medical and dental expenses were allowed, including psychological counselling. After reducing the plaintiff's damages by 50% for contributory negligence (the figure suggested by the defendant and not disputed by the plaintiff), she entered judgment for the plaintiff in the sum of $48,785.60. There has been no challenge to the damages awarded or the finding of contributory negligence. 14 The application by the defendant for leave to appeal against the finding on liability asserts that the judge was clearly in error, the judgment is for a not insignificant sum and is payable from public funds collected from ratepayers, it deals with commonly found circumstances — corners with restricted visibility — found in many municipalities around the State and it is inappropriate to allow it to remain uncorrected. It is conceded that the judgment has "only limited precedent value". 15 The points raised in the application for leave to appeal from that judgment cover every issue on liability. The main issue on appeal was whether the defendant owed the plaintiff a duty of care. The existence of the duty of care is denied, and reliance is placed on the relatively recent cases in the High Court and in this Court dealing with a local council's liability for road works and injuries sustained by pedestrians and persons swimming or diving at public beaches: see Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, Vairy v Wyong Shire Council (2005) 221 ALR 711, Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 and Swain v Waverley Municipal Council (2005) 220 CLR 517. 16 The Council invited cyclists to use the cycleway, and (as it conceded in its submissions) it constructed the pathway for cyclists to ride down in order to obtain access to the cycleway and the Oval. The pathway was used by persons of all ages, including young children and those with disabilities. Not all persons using the path to gain access to the Oval were intending to use the cycleway for a sporting or recreational activity. There would have been a significant number of persons who, like the plaintiff, were using a bicycle as a means of transport. In my view, it was open to the judge to find, as she did find, that the risk of injury was foreseeable, indeed obvious, and that would include the risk of injury to those taking reasonable care for their own safety. 17 The Council placed particular reliance on the following oft-quoted passage from the decision of the High Court in Brodie, per Gaudron, McHugh and Gummow JJ (at [163]) (footnotes omitted): The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , 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 [(1982) 56 ALJR 912]), or the surrounding area (as in Buckle [ Buckle v Bayswater Road Board (1936) 57 CLR 259], 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. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning". In Romeo [ Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431], Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety". Each case will, of course, turn on its own facts. This decision, and in particular these remarks, have been considered and applied in numerous subsequent cases in this Court: see, for example Burwood Council v Byrnes [2002] NSWCA 343; Temora Shire Council v Stein [2004] NSWCA 236; Lake Macquarie City Council v Holt [2004] NSWCA 305; Newcastle City Council v McShane [2004] NSWCA 425; Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461. Differing opinions have been expressed as to whether the opening words of the quoted passage from Brodie were intended to convey that the conduct of a pedestrian was relevant to the question of whether he or she is owed a duty of care by a public authority whilst on a public footpath or road, as distinct from the question of whether that conduct was only relevant to the question of breach of duty: contrast the remarks of Handley JA in Byrnes (at [33]) with the remarks of Bryson JA in Sutherland Shire Council v Henshaw [2004] NSWCA 386 (at [89]) and see also Temora , per Giles JA (at [38]). 18 As I understand the position, this Court has not yet been asked to consider whether the remarks in Brodie at [163] would apply with equal force to a cyclist on public land, who does not always have the same opportunity as a pedestrian to perceive and avoid obvious hazards in the physical condition of the surface and the other features of the area. However, it is not necessary to resolve that issue in this case, because the issue as it arises here is already the subject of a concession made by the defendant and other authority in the High Court. The Council accepted during the course of the appeal that there were circumstances in which a public authority owes a duty of care to a person entering land under its control where that person fails to take reasonable care for his or her own safety. I agree. As Menzies J stated in Commissioner for Railways v Anderson (1961) 105 CLR 42 [at (67)]: I am not prepared to accept the broad proposition that there is never a duty of care owed by an occupier to a careless invitee or to an invitee who is aware of the dangerous condition of the premises to which he is invited. In my view, this remains the law: see Clarke v Coleambally Ski Club [2004] NSWCA 376 at [26] et seq . Like the Council, the defendant in Anderson was a public authority and not an occupier of private land. 19 However, the Council argued that the question of duty depends on the degree of carelessness of the entrant. Thus, it was said, an entrant whose own failure to take reasonable care contributes to his or her injury as to 95% would not be owed a duty of care, whereas an entrant whose contributory negligence was only 5% would. There is considerable difficulty in accepting such a proposition. The obvious question it raises is: how is one to determine the degree of contributory negligence which is sufficient to relieve a defendant of its duty of care? The Council did not provide a satisfactory answer. It merely contended that, in this case where the plaintiff's contributory negligence was found to be 50%, a duty was not owed. The Council's argument that it was entitled to expect that persons using the path would take reasonable care for their own safety, and therefore that it is not liable for any injury caused to them if they do not take such care, is yet another attempt by councils to reinstate the old common law defence of contributory negligence in an action in negligence: cf Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 (at [37]) and Henshaw (at [66]). 20 Even if a plaintiff's conduct could be determinative of the defendant's duty, this plaintiff's failure to take care for his own safety does not bear significantly on the question of the Council's duty of care in the present case. The evidence discloses that there was a blind spot as the laneway approached the bollards which continued along the cycleway leading up to the curve to the right. The high fence and the tree described in par [5] supra were the cause of that blind spot. Persons entering the cycleway by the laneway or the laneway by the cycleway were not visible to one another until, at the earliest, they had reached the curve itself. It was anticipated and even intended by the Council that both the laneway and the cycleway would be used by pedestrians of all ages and capabilities as well as cyclists. As the bollards were insufficient to force cyclists entering or exiting the laneway by the cycleway to dismount, the danger of a collision between a cyclist and a pedestrian or another cyclist was clearly foreseeable. 21 In my view, the intersection was inherently dangerous. Even a cyclist approaching the corner carefully would still be at risk of a collision with a cyclist travelling across his or her path if that other cyclist was not taking reasonable care for his or her own safety, and the safety of others. The danger posed by the intersection was therefore one that the exercise of reasonable care on the part of a user of either the laneway or the cycleway could not eliminate. A pedestrian or cyclist would have no capacity to control the potentially dangerous behaviour of other cyclists, whereas the Council did. The intersection was, to use an expression adopted in the extract quoted from Brodie, in the nature of a "trap". In these circumstances, I am not satisfied that the judge erred in finding that the Council owed the plaintiff a duty of care. 22 I turn next to the question of the content and the breach of that duty. Breach of duty is also denied, as requiring an unreasonable action on the part of the council. Yet the risk of injury was clear, and the cost of doing something to avoid that risk was only $500. It could not validly be asserted to have been an unreasonable requirement on the part of the council. The Council relies on the absence of any evidence of prior injuries occurring at the intersection. In my view, the probability of the occurrence of the risk of injury could still be judged to be high given the obvious danger it posed, and the Council is not thereby relieved of its obligation to take reasonable care. Assertions are also made that the barrier erected causes problems for aged and/or blind pedestrians, and that it presents a risk of injury to such persons. Bearing in mind that this is a blind spot with a risk of injury to both blind and/or aged pedestrians from cyclists using the cycleway, this submission ventures into a state of unreality. 23 The Council also submits that, as the risk was obvious to users of both the laneway and the cycleway, it was reasonable for the Council to do nothing. There has recently been much discussion of the role of obviousness in the context of breach of duty by members of the High Court. Clearly some envisage the concept playing a more central role than others: contrast the remarks of Hayne J in Vairy (at [162]), Gummow J in Vairy (at [55]) and Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 (at [43-45]) with the remarks of Callinan and Hayne JJ in Mulligan [at [75]). The present position was summarised by Ipp JA in Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380, where he said (at [53]): 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. 24 It may be accepted that the risk that a pedestrian or cyclist entering or exiting the laneway by the cycleway could collide with a cyclist travelling in the opposite direction is obvious. However, that circumstance alone does not automatically relieve a defendant of its obligation to take reasonable care. There will undoubtedly be risks which are obvious but which nonetheless call for a response by a defendant. As Bryson JA said in Sutherland Shire Council v Henshaw (at [67]): A rule of law which meant, or had the effect that if a hazard in a road is so obvious that a pedestrian can observe it, the highway authority is not obliged to do something about it on the calculation that pedestrians will take reasonable care for their own safety has an air of parody; that the hazard was so bad that nothing needed to be done about it. Only in a Savoyard parody should a highway authority maintain that its own negligence was so egregious that everyone should have observed the hazard which it produced, and that as a result the highway authority had no responsibility to the users of the road. See also Temora , per Giles JA (at [40]). 25 In my view, obviousness of risk cannot be determinative in this case. The Council invites pedestrians and cyclists onto its land to use the laneway and the cycleway. The Council knew or ought to have known that the blind corner posed a risk of serious injury. It was not a risk which the exercise of reasonable care on the part of a pedestrian or cyclist could have eliminated because no matter how careful he or she was, there would still be a risk created by the potentially dangerous behaviour of other users of the laneway and cycleway who might decide to take the curve at too great a speed. That danger is not something a user can take care to avoid, other than by refraining from entering or exiting the cycleway by the laneway. That cannot be a reasonable expectation to have of a pedestrian or cyclist in circumstances where: (1) the Council invites them to use the laneway and cycleway; (2) the means of controlling that risk is not available to users of the laneway and cycleway; and (3) the Council is in a position to control the danger by a relatively inexpensive means. The assertion that the risk in this case was obvious cannot therefore relieve the Council of its duty to take reasonable measures to guard against it. Consequently, I do not accept that there is sufficient basis in this case to disturb the findings of the judge on breach of duty. 26 In my opinion, the judge correctly found that the Council's duty of care required that it take measures to force cyclists entering or exiting the cycleway by the laneway to dismount. It was not suggested in the appeal that a warning sign would have been a sufficient response to the risk, and I doubt it would have been in any event. Accordingly, the Council's failure to erect barriers of the kind ultimately constructed at the intersection of the laneway and cycleway was negligent. 27 Next, causation is denied by the defendant because the finding that a collision occurred is said to be doubtful on the evidence, as the plaintiff was unable to pinpoint exactly where the collision occurred, and as the plaintiff's injuries are consistent with him having slipped and fallen off his bicycle. It is asserted that the finding was merely speculative. However, the judge accepted that the plaintiff collided with another cyclist. Causation is a question of fact and, in this case, there was sufficient evidence to support the judge's finding. The plaintiff agreed in his evidence that the collision occurred approximately one to two metres past the bollards, and this evidence appears to have been accepted by the judge. There was also sufficient evidence to support that finding. Accordingly, this ground of appeal must also fail. 28 Accordingly, I propose the following orders be made: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The appellant is to pay the respondent's costs. -------------------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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