Supreme Court New South Wales Medium Neutral Citation: Collins v Clarence Valley Council [2013] NSWSC 815 Hearing dates: 19 June 2013 Decision date: 19 June 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender of some documents allowed, others rejected. Catchwords: EVIDENCE - no question of principle. Category: Procedural and other rulings Parties: Dr Ann Page Collins - Plaintiff Clarence Valley Council - Defendant Representation: Counsel: C.T. Barry QC, M.P. Tanevski (Plaintiff) R.S. Sheldon SC, B.R. Wilson (Defendant) Solicitors: Johnston Vaughan (Solicitors) DLA Piper (Defendant) File Number(s): 2010/326308 ex tempore Judgment On admissibility of evidence 1The plaintiff, Dr Ann Collins, sues the Clarence Valley Council ("the Council") for negligence arising out of a serious accident she suffered while cycling across a wooden bridge on the Orara Way on 9 April 2008 (the "Bluff Bridge"). This part of the Orara Way and the Bluff Bridge falls within the geographical area in respect of which the defendant council has certain responsibilities. 2In broad terms, the plaintiff case is that the state of repair of the bridge was such that there were significant gaps between the wooden planks on the bridge, and that she fell after one of her wheels became stuck in one of those gaps. The configuration of the bridge was said to be such that, because she fell near the low guard railing on the bridge and her feet were strapped into her bicycle shoes which were in turn attached to her bike, it meant that she fell over the side of the bridge a number of metres to the bank of the creek below. The plaintiff alleges that the Council was negligent in the maintenance and repair of the bridge, as well as failing to appropriately warn cyclists of the hazards posed by the bridge. 3At this point of the trial, there are a number of contested issues of facts, two of which are as follows. First, there is a contest as to the level of cyclist usage on this part of the Orara Way. Second, there is a related factual contest as to the state of the Council's knowledge of the level of that usage. There is one sub-dispute concerning the level of usage of that part of the road by either organised cycling events or by cycling clubs. The plaintiff's accident occurred while she was participating in an organised cycling event. 4Senior counsel for the plaintiff, Mr Barry QC, seeks to tender a number of documents. Senior counsel for the plaintiff, Mr Sheldon SC, has objected to their tender, and I will deal with each of these in turn. 5The documents are contained within a folder marked MFI-1. The first document objected to is at Tab 3 of MFI-1 and is a document entitled "Explore Our Living Coast Popular Cycling Routes Coffs Harbour Bellingen Nambucca". As best as can be ascertained, it appears to be a publication of the State government and three councils that have responsibilities over areas near to the defendant, but do not include the defendant. The document includes a description of various cycling routes, one of which certainly includes part of the Orara Way, although not the part where the accident occurred. The document is undated. 6The fact that the document is undated and does not appear to have been issued with the imprimatur of the defendant means that I am not satisfied that it has any relevance. At best, it could be a document which indicates that cyclists are referred to the area of the Orara Way, and many may decide to continue on that road and off the path that is depicted. However, in the absence of knowing when the publication occurred, I am not satisfied that it has relevance to these proceedings. Its tender is rejected. 7The next document the tender of which is opposed is an extract from the publication "Lonely Planet", and concerns a proposed route for cycle riding from Coffs Harbour to Dorrigo. In particular, at p 120 of that document, is a suggested cycle route which involves departing from Coffs Harbour, travelling west, and heading north-west along Orara Way, and then turning west along Eastern Dorrigo Way. The proposed route does not pass over Bluff Bridge. However, if cyclists were to continue up Orara Way and not turn west, as suggested by that publication, they would come to the Bluff Bridge. 8As best as could be ascertained, it seems that this publication was issued in 2002. It needs to be considered with tabs 24 and 25. Tab 24 is a document entitled "Bike Plan and Pedestrian Access and Mobility Plan". It appears to have been prepared by some consultants for the submission to the defendant Council. It bears the date January 2008. In various parts, the document describes what is known as the "Coastline Cycleway Project" which appears to be a collaborative effort between the State government and various councils, designed to "create a continuous cycling route along the NSW coast from the Queensland border to the Victorian border". 9The document notes that no formal mapping of the route exists, but refers the reader to the "Lonely Planet's Cycling Australia" as containing a ride from the Gold Coast to Melbourne that "largely follows the coastline cycleway route". That appears to be a reference to the document behind tab 23 which I have just described. 10Later the document describes the coastline cycleway in more detail. The description of the route in that part of the document describes it as "exiting south Grafton, south-east via the Pacific Highway", which is said to be outside the study area. On its face, that description of the route appears to involve cyclists travelling from Grafton to Coffs Harbour via the Pacific Highway, and not via the Orara Way. However, later in the document it refers to what is known as regional cycle routes which on its face could conceivably extend to the Orara Way. 11Behind tab 25 is a publication of the defendant Council itself, described as "Bike Plan and Pedestrian Access and Mobility Plan". It appears to be have been strongly influenced by the draft report to which I have just referred. It again refers to the coastline cycleway, and makes reference to the Lonely Planet publication. 12The submissions about the tender of these three documents in part appear to revolve around whether or not they definitely indicate that the bridge itself formed part of the New South Wales cycleway. If that were the only basis upon which their tender was sought, I would have some difficulty in drawing the conclusion that they did, especially having regard to the fuller description of the cycleway route in the consultants' report which is tab 24. 13However, at a perhaps more limited level it at least can be seen that the Lonely Planet guide does refer cyclists along the Orara Way towards Grafton for at least part of the journey. The consultants' report and subsequent Council publication may indicate an awareness of so much of the Lonely Planet document that refers cyclists along the Orara Way to that extent. 14I can see that that has some relevance to an assessment of what is the general level of usage by cyclists of the Orara Way, and what the Council's awareness of that may have been, although whether it has the effect contended for by the plaintiff is a completely different matter. 15I will allow the tender of tabs 23 to 25. 16Tab 26 is a document entitled "Clarence Valley Council Engineering Services Policy". It includes reference to the Council's responsibilities in relation to the path and the cycleway network. In particular, it refers to the Council having an "extensive footpath and cycleway network to manage, consisting of more than 65 kilometres of footpath and 25 kilometres of cycleway". 17The document does not bear a date and has "Draft" stamped on it. I am not persuaded that this document has any relevance. I do not think that any part of the Orara Way could possibly fall within the description of the 25 kilometres of cycleway that the Council states that it has some responsibility for. I reject tab 26. 18Tab 28 is entitled "Cycleway Improvement". It is an undated document. Its fate follows that of tab 26. I reject its tender. 19Tab 30 is an extract from the Council's internal documents dated 11 April 2006, recording a recommendation that Council donate $200 to the "Pollie Pedal Charity Bike Ride". Evidence has already been given at the hearing that at some point in the period 2006 to 2009, this charity bike ride passed through the area of the Orara Way. The witness who gave that evidence was a local police officer who had a distinct memory of meeting a prominent politician who was participating in that ride. However, that witness could not remember the precise year in which the event occurred. 20I think the combination of that evidence with this document makes the document relevant. In my view, it would be open to conclude that the Council, in donating to that charity bike ride, either was or should have been aware of its route through the Orara Way. I will allow the tender of tab 30. 21Tab 32 is a similar document, bearing a date June 2007, which records a donation by the Council of an amount of money to the "Tour de Cure Trust Limited", which is an annual bike ride passing through Grafton. There is nothing in the document that states the route which the ride takes. Although not much would ultimately I expect to be made from this, I consider the fact the Council is aware of a number of organised bike events in the region could, when taken with the other material, have some significance to the second issue that I have identified earlier. I will allow the tender of tab 32. 22Tab 33 is similar to tab 32, although it does post-date the accident by a number of months. However, given the basis on which I have allowed tab 32, tab 33 is admissible. 23Tab 34 is a publication of the Council entitled "Let's Go Cyclistic", in which the council promotes the "Cyclistic Festival of Cycling" for the period October/November 2012. While material concerning the level of promotion by the Council of cycling might be of some relevance, this publication post-dates the accident by a number of years, and relates to an event that occurred four years after the accident. I am not satisfied it is relevant. Its tender is rejected. 24Tab 29 is a publication by the Council dated December 2005, in which the Council announces that a charity ride is coming to Grafton. This document falls into the same category as tab 32. I will allow it. 25Tab 39 is a document entitled "NSW Coastline Cycleway Grants Program". It appears to be a publication of the State government which was at least updated in July 2011. It records the making of grants in the financial year 2007/2008 of various amounts of money to local councils throughout New South Wales, including an amount to the defendant. As best as I can ascertain from the document, it refers to a program of funding building, repairs and maintenance of dedicated cycleways, which will form part of the 1,400 kilometres New South Wales coastline cycleway to which I have referred. None of the projects or the description appear to have any relevance to an area of road such as the Orara Way. There is nothing to indicate that funding to fix infrastructure, such as a bridge on a road, was contemplated by this scheme. I reject the tender of tab 39. 26Tab 50 is an internal Council document dated June 2008 which records the Council's consideration of the maintenance and repairs to various regional roads within its area of responsibility. The only significance of the document is that it appears to record what I otherwise understood to be an uncontroversial fact, namely, that the Orara Way was a regional road within the defendant's area of responsibility. No maintenance on that road is recorded in the document. However, given that the bare recording of the Orara Way as a road in respect of which the Council has responsibilities is itself a relevant fact, the document has relevance, even though it is dated shortly after the accident. I will admit it. The same reasoning applies to tab 51, and I will admit that document. 27The entire folder of documents, other than those documents that have been rejected, will be admitted and marked as exhibit N. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2013