Rockdale City Council v Simmons [2015] NSWCA 102

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rockdale City Council v Simmons [2015] NSWCA 102 Hearing dates: 24, 25 September 2014 Decision date: 17 April 2015 Before: Beazley P at [1]; McColl JA at [1]; Barrett JA at [1] Decision: (1) Appeal dismissed with costs;

(2) Cross-appeal allowed in part;

(3) Set aside the judgment of the court below insofar as it found the cross-appellant guilty of contributory negligence;

(4) Verdict and judgment for the cross-appellant for $1,160,000 plus interest from 27 September 2013;

(5) Order the second cross-respondent to pay the costs of the cross-appeal insofar as it concerned the issue of contributory negligence;

(6) Otherwise dismiss the cross-appeal with costs. Catchwords: TORTS – negligence – duty of care – breach of duty – where plaintiff seriously injured when his bicycle collided with boom gate erected by Council – boom gate intended to close public road to prevent access to carpark at night by hooning motorists – where arrangement with local club to open boom gate in the morning at a time at its discretion – where other Council carparks opened at fixed times by Council officers – where closed boom gate created "perceptual trap" for cyclists – where previous incidents of cyclists injured colliding with boom gate notified to Council – whether s 5B Civil Liability Act 2002 (NSW) correctly applied – standard of liability – whether primary judge applied too exacting a standard of reasonableness by referring to Council "ensuring" various matters

TORTS – negligence – causation – whether appellant's breach caused respondent's injury – previous incidents of cyclist colliding with boom gate notified to Council – whether Council failed to take simple measures to mitigate against threat of harm within reasonable time – s 5D Civil Liability Act 2002 (NSW)