This judgment was published by the NSW Court of Appeal on 1 July 2010.
Daryl Wells (the plaintiff) was bicycle riding with a friend on the morning of 26 November 2006. The pair cycled along a pathway, intending to enter a public park. There was no prohibition on riding bicycles in the park or on the pathway. Mr Wells had cycled this route the previous week. On about 24 November, the Council had placed a metal chain across the pathway. No warning was provided of the chain’s presence. The chain hung low to the ground, immediately above a patch of new concrete. Mr Wells rode into the chain, was thrown from his bicycle and sustained injury to his neck. He claimed in negligence against the Council.
District Court Judgment
Charteris DC J found in favour of the plaintiff.
His Honour found that the chain was not readily observable. The colour of the chain blended with the colour of the concrete background. He accepted that the chain’s presence was unexpected. The environment was such that other objects competed for the cyclist’s attention.
His Honour rejected arguments that the plaintiff failed to pay adequate attention, rode at excessive speed, or failed to apprehend reasonably anticipated changes in the environment. He did not accept an argument that the chain constituted an obvious risk (as per section 5F of the Civil Liability Act). He identified no contributory negligence.
Court of Appeal judgment
The defendant appealed. Beazley JA drafted the Court of Appeal’s leading judgment with McColl JA and Basten JA in unanimous agreement.
Grounds of appeal were:
- The trial judge erred in failing to engage in any analysis of the principles in Wyong Shire Council v Shirt [1980] HCA 12;
- That the chain was an obvious risk;
- That the defendant was contributorily negligent;
- That the award of future economic loss was not supportable on the evidence.
The Court of Appeal observed that the Civil Liability Act (the Act) does not define the circumstances wherein a duty of care arises. Whether there is a duty of care is determined via common law principles.
Section 5B of the Act is directed to whether an identified duty of care has been breached. This section substantially reiterates the principles set out in Wyong Shire Council v Shirt.
The issue of whether there has been a breach must in the first instance turn on an application of the facts to the Act. If attention is not directed to the Act, there is a risk that enquiries concerning the nature of the duty, breach and causation will miscarry.
The defendant cited RTA v Dederer [2007] HCA 42 as authority that the duty it owed to the plaintiff, which was the same as a roads authority, was to take reasonable care for persons taking reasonable care for their own safety. It contended was that there was no duty of care owed to the plaintiff because he failed to take reasonable care himself. The Court of Appeal dismissed this argument, observing that whilst the extent of a duty of care can be conditioned by a plaintiff’s conduct, its existence is not conditional. The Court of Appeal cited Gummow J in Dederer:
“The RTA’s duty of care was owed to all users of the breach, whether or not they took ordinary care for their own safety. The RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct…. The extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe ‘for users exercising reasonable care for their own safety’. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves.”
The defendant argued that the trial judge failed to engage in a Wyong v Shirt analysis when determining whether there was a breach. It argued that a finding that there was a breach of duty of care required specific references to reasonable foreseeability, the appropriate response by a reasonable person to the risk, a weighing of the magnitude of the risk or its probability, and assessment of the expense, difficulty and inconvenience of remedial action. The defendant argued that the trial judge did not deliberate upon these issues.
The Court of Appeal acknowledged that the Act restates the principles in Wyong v Shirt. Those principles have not ceased to operate. The Court of Appeal considered the trial judge’s factual findings and concluded: the defendant knew or ought to have known that the path was used by cyclists; the arising question was therefore whether the plaintiff should have reasonably foreseen that the chain created a risk of harm; a following question being whether the defendant should have taken reasonable precautions to eliminate that risk. The Court concluded that the trial judge made no error in concluding that the defendant was negligent. Whilst the trial judge had not formulated findings with specific reference to the particular principles in the Act and in Wyong v Shirt, his findings implicitly satisfied those principles.
Then to be determined, pursuant to section 5F of the Act, was whether the risk posed by the chain was obvious. (There was no argument that section 5L, dealing with recreational activity, applied). The defendant argued that the chain was obvious but was not sighted due to the plaintiff’s excessive speed and lack of attention; it argued there was thus no duty to warn the plaintiff.
Analysis of obvious risk requires assessment of whether a plaintiff’s conduct involved a risk of harm which would have been obvious to a reasonable person in the plaintiff’s position. Whether a risk is obvious is determined objectively via application of circumstances. The Court of Appeal considered the trial judge’s findings as to the manner in which the chain was hung, its colour, the colour of the concrete behind the chain and the need for the plaintiff to attend to multiple external stimuli as he rode. It rejected an argument that the trial judge did not make a finding as to speed. The trial judge did not identify a specific speed (evidence varied) however he did find that the plaintiff’s speed was not excessive.
The challenge to the trial judge’s finding that the hazard was not obvious was rejected. The trial judge’s finding that the plaintiff could not have identified the chain in time to avoid injury was available on the evidence.
The trial judge found no contributory negligence. The Court of Appeal observed the applicability of Section 5R of the Act. Contributory negligence is determined objectively, applying the circumstances of the event. Once again the Court confirmed the trial judge’s analysis of the events. The evidence permitted a finding that no culpability could be attached to the plaintiff.
Turning to damages, the defendant argued that the trial judge’s award for future economic loss was excessive. The defendant argued that “vagaries” in the plaintiff’s future circumstances were such that an attempt “at being scientific about the assessment became infected by guesswork” [90]. The defendant contended that the plaintiff had not missed time from work and had lost no commercial opportunity. He had other skills that he would apply if unable to continue to work as a boilermaker. The defendant submitted that there was no evidence that actual loss would arise from the acknowledged medical diagnosis and its appertaining reduction in earning capacity. The Court of Appeal opined that there was evidence that the plaintiff’s earning capacity was presently productive of economic loss. It relied on medical evidence to reach this formulation. The trial judge’s findings were permissible on the evidence.
Conclusion
This matter was decided via application of particular facts to established law. The matter provides an opportunity to revisit some key elements of that law:
Please note that this case alert will also be published by LexisNexis in Australian Civil Liability.
If you have any questions around these areas of law, or would like to speak to a member of our
Insurance Team, please do not hesitate to contact:
Dean Newell | Partner
T 61 2 8233 9717
Matthew Seisun | Senior Associate
T 61 2 8233 9716
