Council of the City of Greater Taree v Wells [2010] NSWCA 147

TORTS – duty of care – duty of council to users of public pathway – whether appellant owed duty of care in circumstances where it installed an obstruction along a public pathway – TORTS – duty of care – scope of duty – scope of duty to be determined objectively – TORTS – breach of duty of care – Civil Liability Act 2002, s 5B – principles in Wyong Shire Council v Shirt [1980] HCA 12: (1980) 146 CLR 40 – whether the Civil Liability Act 2002, s 5B substantially restates the principles at common law – TORTS – contributory negligence – Civil Liability Act 2002, Division 8 – determined objectively – TORTS – obvious risk – Civil Liability Act 2002, Division 4, ss 5F-I – whether installation of a chain across a public pathway constitutes an obvious risk – PRACTICE & PROCEDURE – Civil Liability Act 2002 – actions to be determined by reference to the Civil Liability Act 2002

Headnote

The respondent was injured whilst cycling along a pathway in Taree in circumstances where he failed to observe that a metal chain had been strung across the mouth of the pathway leading into the Queen Elizabeth Park (the park). The respondent was catapulted over the handlebars of his bicycle when the front wheel collided with the chain. He brought a claim against the appellant for damages for his injuries, which he alleged were caused by the appellant’s negligence in placing the chain across the pathway.

The trial judge, Charteris DCJ, held that the appellant owed and breached a duty of care and awarded the respondent damages in negligence in the amount of $114,402.00. The appellant appealed against his Honour’s finding of negligence and against his Honour’s award of future economic loss and future loss of superannuation, contending:

(i) That the trial judge erred in failing to engage in any analysis of the principles in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40;

(ii) That the presence of the chain across the pathway was an obvious risk;

(iii) That the respondent was contributorily negligent; and

(iv) That the respondent’s award for future economic loss was unsupportable on the evidence.

Held
Per Beazley JA (McColl and Basten JJA agreeing):

(i) The scope of a duty of care is determined prospectively, not by reference to what happened in the accident in question: [48]. The appellant, in placing diversionary obstructions along or across the pathway, had a duty to exercise reasonable care to avoid foreseeable risks of injury to users of the pathway, being persons who were taking reasonable care for their own safety: [49].

(ii) The authorities have recognised that the Civil Liability Act 2002, s 5B substantially restates the common law principles stated in Wyong v Shirt: [55]. The appellant breached its duty of care in erecting a chain that was not visible to users of the pathway until shortly before coming upon it: [63].

(iii) A chain which may not be visible to a cyclist taking reasonable care, until shortly before coming upon it, is not an obvious risk: [79].

(iv) Contributory negligence is determined objectively, taking account what the plaintiff knew or ought to have known at the time: [83]. The respondent’s speed was reasonable, the chain’s presence was unexpected and its colour made it difficult for persons taking reasonable care for their own safety to detect: [86].

(v) There was evidence that the respondent’s earning capacity was presently productive of economic loss. Accordingly, the trial judge did not err in his assessment of future economic loss: [101].

79. In my opinion, although a reasonable person in the position of the respondent could not expect that conditions along or in respect of the path would not change, a chain which may not be visible to a cyclist taking reasonable care, until a short distance before coming upon it, is not an obvious risk. The trial judge’s finding on this was clearly one that was available on the evidence and no reason has been shown calling for appellate intervention. In my view, a reasonable person in the respondent’s position would not have concluded it was probable that a council in the appellant’s position would sling a chain across a pathway which, having regard to the colour of the chain itself and the surrounding environment, was not visible to cyclists or others travelling along the path at greater than a walking pace until shortly before coming upon it.

Brisbane Barrister – David Cormack

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