Simmons v Rockdale City Council [2013] NSWSC 1431

Supreme Court New South Wales

Medium Neutral Citation: Simmons v Rockdale City Council [2013] NSWSC 1431 Hearing dates: 24-28 September 2012; 12 October 2012; 22 November 2012 Decision date: 27 September 2013 Jurisdiction: Common Law Before: Hall J Decision: (1) That a verdict and judgment be entered in favour of the plaintiff against the first defendant, Rockdale City Council in the amount of $928,000. (2) That judgment be entered in favour of the second defendant, St George Sailing Club. (3) I grant leave to the parties to make application in respect of costs of the proceedings and other ancillary orders. Catchwords: TORTS - negligence - duty of care of local government authority to sporting cyclist exiting from a cycleway - early morning collision with closed boom gate customarily placed in the open position by day under an informal arrangement between the council and a neighbouring sailing club - boom gate constructed to exclude/prevent anti-social driving of vehicles in carpark - arrangement between Council and Club for Club to close and open the boom gate - the arrangement did not provide for a fixed timetable specifying mandatory opening times - overall discretion as to closing/opening times conferred upon the Club under its arrangement with Council - duty of care - duty in the Council in respect of cyclists as known users of the cycleway - BREACH OF DUTY - breach of duty by the Council - high level of cycle use known to Council and use of boom gate entrance as an exit - previous accident - failure to investigate and identify visual perception problems when gate closed - failure to modify gate to enhance its visibility as occurred following the accident - failure to re route the cycleway exit as undertaken subsequent to accident - failures by Council causally contributed to the plaintiff's cycling accident - Club not in breach of its duty of care having regard to the limited scope of its duty and the discretionary arrangement it had with the Council - CAUSATION - causal nexus between Council arrangement with the Club and failure to investigate and adopt available preventative measures which measures, if adopted, were likely to have prevented the plaintiff's accident - CIVIL LIABILITY ACT 2002 - ss 5F and 5G "obvious risk" - no obvious risk from cycling, s 5P - taking "precautions against a risk of harm" - a matter to be considered objectively by reference to the circumstances - factors in s 5B(2) did not outweigh those in s 5B(1); ss 5K and 57 - "Dangerous recreational activity" - no evidence of plaintiff's cycling constituting such a dangerous activity - s 42 - Council failed to adduce evidence to establish applicability of s 42(a) and (b) - Section 43A: "special statutory powers" - whether Council had exercised or failed to exercise a "special statutory power" under provisions of the Roads Act 1993 - sections 87, 114 and 115 of the Act - the failure to open the boom gate, or leaving the boom gate in the closed position was not the exercise or failure to exercise a special statutory power within s 43A Legislation Cited: Civil Liability Act 2002 Roads Act 1993 Transport Administration Act 1988 Cases Cited: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 Bevillesta t/as Top Ryde Shopping Centre v Liberty International Insurance Company [2009] NSWCA 16 Brodie v Singleton Shire Council (2001) 206 CLR 512 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 Caparo Industries Plc v Dickman [1990] 2 AC 605 Carey v Lake Macquarie City Council [2007] NSWCA 4 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Tort Reports 81-815 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Fallas v Mourlas [2006] NSWCA 32 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Kuhl v Zurich Financial Services [2011] 243 CLR 361 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 Romeo (1998) 192 CLR 431 Romeo v Conservation Commission (NT) [1998] HCA 5 Sullivan v Moody (2001) 207 CLR 562 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Vairy v Wyong Shire Council [2005] HCA 62 at [220]; (2005) 223 CLR 422 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wyong Shire Council v Shirt [1980] HCA 12 Category: Principal judgment Parties: Alex Simmons (Plaintiff) Rockdale City Council (First Defendant) St George Sailing Club (Second Defendant) Representation: Counsel: D Campbell SC; J Sheller (Plaintiff) G Watson SC; N Chen (First Defendant) P Morris SC (Second Defendant) Solicitors: G Walsh & Co (Plaintiff) TressCox Lawyers (First Defendant) Moray & Agnew (Second Defendant) File Number(s): 2008/289194