Which case won?

casea
The case for the cyclist
  • The council owes me a duty of care to take reasonable care in all the circumstances to avoid the foreseeable risk of injury to cyclists created by the deteriorated condition of the surface of the bridge.
  • The bridge was in a terrible state of repair and the deteriorated condition of its surface created a risk of harm that a cyclist may fall off the bridge and sustain injury. This risk was foreseeable by the council and not insignificant.
  • The council breached its duty of care, failing to take reasonable precautions. The council should have erected an appropriate sign warning cyclists to dismount before crossing the bridge. Had council erected such a sign, I would have dismounted from my bicycle and walked safely across the bridge.
  • The council argues that it had no duty to erect a warning sign because it was not required by law to warn in relation to “obvious risks”. However, it was not at all obvious that a cyclist would suffer injury by plummeting over the side of the bridge.
  • In any event, it can be inferred from the evidence that the council knew about the poor state of the bridge, and it should also have taken other reasonable precautions. Council should have carried out roadwork and repairs to eliminate gaps in the bridge, undertaken adequate inspections of the bridge, and installed higher guardrails or fencing. Had the council done so, my accident would not have happened.
  • Given that the council was negligent in not erecting a warning sign and in failing to conduct necessary road works, the court must grant my appeal.
caseb
The case for the council
  • The law does not require us to warn of an obvious risk.
  • The risk of harm here was not, as the cyclist argues, a risk of plummeting over the side of the bridge. It was instead that a cyclist might get a wheel stuck in a gap on the bridge and fall over, even if just to the ground, injuring themselves. This risk was an obvious one, and we therefore do not owe a duty to erect a warning sign.
  • The cyclist also claims that we should have carried out road works. However, as a roads authority, we are not liable for failure to carry out road works unless we had actual knowledge of the particular risk that materialised. As there is no evidence that the council officer with the relevant authority to carry out the road works had any actual knowledge, we cannot be held liable.
  • Given that we were not required to erect a warning sign and are not liable for any failure to conduct road works, the court must dismiss the cyclist’s appeal.

So, which case won?

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a59%
b41%

Expert commentary on the court's decision

“This case highlights the difficulties that can arise in pursuing cases against public and roads authorities and emphasises the importance of carefully considering the special defences and protections afforded to such authorities under the Civil Liability Act, even in circumstances where negligence may initially seem quite clear cut.”
Court dismisses cyclist’s appeal

In Collins v Clarence Valley Council [2015] NSWCA 263, the NSW Court of Appeal dismissed the appeal of the cyclist, Dr Ann Collins.  

The court agreed with the primary judge that the risk of harm was an obvious one, and that the council, Clarence Valley Council, was therefore not required to erect a warning sign.  

The court also accepted that there was no evidence to establish that the council had “actual knowledge” of the particular risk of harm. As such, under the relevant legislation, the council was not liable for any failure to carry out road works. 

General duty of care owed to cyclists

At first instance, Clarence Valley Council disputed that any duty of care was owed to Dr Collins. 

However the primary judge rejected this argument, concluding that as a road authority, the council owed a general duty of care “to exercise reasonable care so that the road is safe for users exercising reasonable care for their own safety.”  

The primary judge also found that in order to lessen the risks to cyclists, a reasonable person in its position would have erected a sign warning cyclists to dismount before crossing the bridge. 

On appeal, the council did not challenge this finding. It also accepted that if such a warning sign had been erected, Dr Collins would have heeded it and as a consequence would not have suffered her injuries.

No duty of care to warn of obvious risk

Notwithstanding the above, the council could avoid liability for failure to warn by establishing that the relevant risk was “obvious”.  

Section 5H of the NSW Civil Liability Act 2002 (“the Act”) states that no duty of care is owed to warn of an obvious risk.  

An obvious risk is one that would have been obvious to a reasonable person in the position of the person who suffered harm from that risk.  

Primary judge finds risk obvious, rejecting cyclist’s narrow interpretation

Dr Collins argued a narrow interpretation of the relevant risk of harm, specifically that the relevant risk was the risk of a cyclist falling off the bridge because of the condition of the bridge surface. 

She also gave evidence that this risk was not obvious. She said that she had not considered it a “remote possibility” that she might fall off the bridge and that she had only observed small “cracks” in the planks once she had ridden onto the bridge. 

The primary judge rejected Dr Collins’ arguments, concluding that the relevant risk was “the risk of injury to a cyclist if their wheels become stuck in the gaps between planks (and holes in degraded planks)” and that such a risk was one that would have been obvious to the reasonable person in Dr Collins’ position.

The reasonable person in the position of Dr Collins was an adult of at least moderate cycling ability, participating in a slower-paced event such as the charity ride.

Appeals court agrees that risk was obvious

In dismissing Dr Collins’ appeal, the appeals court agreed with the primary judge’s formulation of the risk of harm, confirming that it is “not appropriate to identify such a risk by reference to the precise mechanism by which the plaintiff suffered injuries”. 

The court also agreed that the risk of harm would have been obvious to the reasonable person in the position of Dr Collins. 

Therefore, the council did not owe Dr Collins a duty of care to warn of that risk by erecting a warning sign. 

No liability for harm for failure to carry out road work if no “actual knowledge” of risk

Dr Collins also argued that the council should have carried out roadwork and repairs to eliminate gaps in the bridge, undertaken adequate inspections of the bridge, and installed higher guardrails or fencing.

These precautions were considered by the court to constitute “road work” under section 45 of the Act.

Section 45 shields a roads authority from civil liability for harm arising from a failure to carry out road work, or failure to consider carrying out road work, unless it had “actual knowledge” of the particular risk that materialised.

Court finds council had no “actual knowledge” of risk

To displace the operation of section 45, Dr Collins had to prove that the council had “actual knowledge” of the particular risk of harm.  

A council road inspector had told the court that he had observed gaps in the planks of the bridge during his inspection in February 2008.  

However, he also gave evidence that he had not communicated the existence of such gaps to any of his council supervisors. 

At common law “actual knowledge must be found in the mind of an officer within the council having delegated or statutory authority to carry out the necessary repairs.”  

Having considered evidence of the council hierarchy, the primary judge concluded that the council road inspector clearly “did not have the level of authority to meet the applicable test.”  

The primary judge also found that it could not be inferred that the officer within the council who did have authority had actual knowledge.  

The appeals court found that Dr Collins had failed to establish that the primary judge had erred in this respect.  

Accordingly, Dr Collins could not displace the operation of section 45, and the council did not have any liability to Dr Collins for “harm arising from a failure of the council to carry out road work”. 

Court considers breach of duty if hurdles to success had been overcome by cyclist

Because the court found that the council did not owe a duty of care to warn of an obvious risk, nor did it have any liability in relation to failure to do road works, it followed that Dr Collins’ claim had to be dismissed.  

Nevertheless, the primary judge went on to consider whether a breach of duty of care would have otherwise been established if Dr Collins had overcome the hurdles constituted by section  5H and section 45. 

Pursuant to section 5B of the Act, failing to take precautions against a risk of harm will not result in a finding of breach of duty of care or negligence unless the risk was foreseeable, not insignificant, and a reasonable person in the defendant’s position would have taken those precautions.

Council also argues defence under section 43A of Civil Liability Act

Relevant to the question of breach of duty was the council’s reliance on a defence provided under Section 43A of the Civil Liability Act.  

Section 43A provides that, in relation to the exercise of a special statutory power by a public authority, any act or omission does not give rise to civil liability unless the act or omission was so unreasonable, that no authority having the power in question could properly consider the act or omission to be a reasonable exercise of its power. 

Therefore the primary judge had to consider whether the council’s failure to exercise precautions constituted a failure to exercise special statutory power, and further, whether such failure was so unreasonable that no authority in the council’s position would consider the failure to be reasonable.  

Dr Collins’ arguments faced problems in respect of reasonableness and council’s section 43A defence.  

Inspections and higher guardrails would not have prevented accident

Evidence given by expert engineers indicated that higher guardrails or different fencing would only partially address the risk of harm and could in fact create possible adverse consequences.  

The primary judge therefore did not consider this to be a reasonable precaution in the circumstances.  

Whilst it was found that undertaking adequate inspections was a reasonable precaution, and that the council inspection conducted in February 2008 was in fact conducted negligently, the primary judge concluded that an adequate inspection would not have prevented the risk of harm in and of itself, unless it was acted upon. 

Council did not have reasonably available funding to undertake repair work

The primary judge also concluded that undertaking repair work was not a precaution that “a reasonable road authority in the Council’s position would have taken.”  

The council had relied heavily on Section 42 of the Civil Liability Act, which provides that functions required to be exercised by an authority, such as a council, are limited by reasonably available financial resources. The council argued that it did not have the available funds or resources to undertake the precaution of repairing the bridge.  

Evidence was produced of the broad range of functions for which council was responsible, including the care and management of 146 other timber bridges. Evidence of council’s budget and financial resources showed there was a heavy demand on the infrastructure budget.  

Dr Collins argued that council had other potential sources of revenue available to repair the bridge, such as a federal grants scheme.  

However Dr Collins’ arguments were rejected in light of the evidence of council’s numerous other demands and responsibilities.

Erecting warning sign was reasonable precaution

The primary judge determined that erecting a warning sign for cyclists was a reasonable precaution the council could have undertaken.  

Furthermore, it was unreasonable under Section 43A of the Act for council not to have done so, especially in circumstances where it did not propose to repair or rebuild the bridge. 

On appeal, the council challenged the primary judge’s finding in relation to section 43A but was unsuccessful.  

Nevertheless, this was a blow to Dr Collins’ claim, since it made no difference due to the “obvious risk” finding.  

Had the relevant risk of harm not been an obvious one, a breach of duty of care would have been established on the basis of the council’s failure to take the reasonable precaution of erecting an appropriate warning sign.  

In these circumstances Dr Collins would have won.

Risks of claiming against public and roads authorities

This case highlights the difficulties that can arise in pursuing cases against public and roads authorities and emphasises the importance of carefully considering the special defences and protections afforded to such authorities under the Civil Liability Act, even in circumstances where negligence may initially seem quite clear cut.  

While the evidence clearly established that the bridge was in a poor state of repair and represented a danger to cyclists, Dr Collins still lost her case due to the operation of sections 5H and 45 of the Act. 

Warning to councils to conduct adequate risk analyses

On the other hand, while the council was successful in defending Dr Collins’ claim in this instance, this case should serve as a stark warning to public authorities. They should ensure adequate risk analyses are conducted of roads and bridges under their care, control and management, so that adequate precautions are implemented to prevent the risk of injury to road users.  

The council was able to avoid liability in this instance because of the qualifying provisions of both Section 5H and Section 45 of the Act.  

However, the outcome may have been very different for a plaintiff other than Dr Collins, for example a child cyclist. As noted on appeal: 

Although… the risk the defective bridge surface posed was an obvious one to an experienced cyclist such as the appellant, there was clearly a class of cyclists to whom that risk may not be apparent. That class should have been considered by the Council in determining what, if any step, it should take to guard against the risk of harm the bridge posed. 

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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