Australia: Cyclist Collides With a Metal Chain – Whether Obvious Risk Defence Under the Civil Liability Act Available
Curwoods Case Note

Judgment date: 1 July 2010

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

New South Wales Court of Appeal

In Brief

• The Civil Liability Act , 2002 (CLA) does not define or delimit the circumstances in which a duty of care will arise. That remains the province of common law principles.
• Section 5B is directed to whether a found duty of care has been breached and substantially restates the common law principles set out in Wyong Shire Council v Shirt
• At common law the court is required to identify what a reasonable person in the position of the defendant would do by way of response to a reasonably foreseeable risk of injury. This is consistent with s 5B(1) of the CLA: Graham Barclay Oysters Pty Limited v Ryan
• The relevant duty of care is to take reasonable care to avoid foreseeable risks of injury to entrants measured against persons exercising reasonable care for their own safety.

Background

Mr Wells (plaintiff) sustained an injury to his neck after his bicycle collided with a metal chain which had been strung across the mouth of a pathway leading into a park owned by the Council of the City of Greater Taree (,strong>defendant).

The plaintiff brought proceedings against the defendant in the District Court of New South Wales alleging that it was negligent in placing the chain across the pathway.

District Court Decision

In relation to liability the trial judge, Charteris DCJ, found in favour of the plaintiff for the following reasons:

• The location of the chain was unexpected by any regular user of the park. There was an absence of any warning to users of the park of its existence. Its colour made it difficult to pick up as one approached it, particularly on a pushbike.
• The presence of the chain was not obvious and accordingly the chain could not be described as an "obvious risk" as set out in s 5F of the CLA.
• The plaintiff was not guilty of contributory negligence as a person in his circumstances could very easily fail to detect the presence of the chain. The plaintiff was awarded $114,402, which included an award of $83,250 for future economic loss on the basis of a 16% residual loss in earning capacity.

Court of Appeal Decision

Beazley JA, who wrote the leading judgment on behalf of the unanimous Court of Appeal, noted that the four central issues which were raised on appeal were as follows:

• Whether the trial judge erred in failing to engage in any analysis of the principles in Wyong Shire Council v Shirt.
• Whether the trial judge erred in finding that the chain did not constitute an obvious risk.
• Whether the trial judge erred in failing to find that the plaintiff was contributorily negligent.
• Whether the trial judge erred in his award for future economic loss.

In relation to the first ground of appeal, Beazley JA stated that, whilst the Wyong Council v Shirtanalysis was relevant, if the court's attention is not first directed to the CLA there was a serious risk that "inquiries about duty, breach and causation would miscarry" (Adeels Palace Pty Limited v Moubarak: Adeels Palace Pty Limited v Bou Najem). Beazley JA was critical that the trial judge made only passing reference to the CLA.

The defendant contended that it did not owe a relevant duty of care to the plaintiff as he was not taking reasonable care for his own safety. In dismissing this contention Beazley JA referred to the comments of Gummow J in Roads and Traffic Authority of New South Wales v Dederer who stated that:

In determining whether or not the defendant breached the duty of care owed to the plaintiff, Beazley JA stressed that s 5B of the CLA must be first be applied. That section provides:

Beazley JA noted that the defendant knew or ought to have known that the path was used by members of the public, including cyclists. The question for determination was then whether a reasonable occupant in the defendant's position would have foreseen that its conduct, in installing a silver coloured chain, in circumstances where it was slung and where the concrete underneath was a similar colour, involved a risk of harm to the plaintiff, and if so whether it should have taken reasonable precautions to prevent the risk of harm. The Court of Appeal accepted that the defendant was aware of the risk, that the risk was not insignificant, and that there were alternative means open to the defendant to prevent vehicular access to the park including the placement of a bollard in the pathway or using a brightly coloured chain which was more readily visible. Accordingly the defendant's arguments in relation to breach of duty of care were rejected.

The Court of Appeal then turned to the issue of whether or not the plaintiff's claim should fail because the risk of injury was an obvious one. Section 5F of the CLA defines an obvious risk as being a risk that in the circumstances "would have been obvious to a reasonable person in the position of that person". Pursuant to s 5G of the CLA injured persons are presumed to be aware of obvious risks. Pursuant to s 5H of the CLA there is no proactive duty to warn of an obvious risk.

Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the relevant plaintiff was in: Fallas v Mourlas Beazley JA stated that the question of obvious risk requires a determination of whether the defendant's conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff: Carey v Lake Macquarie City Council

In this case the Court of Appeal was satisfied that the risk was not an obvious one because the path commenced a short distance from Macquarie Street where cyclists would be concerned about traffic, and because the chain was slung low and blended into the colour of the new concrete underneath. Accordingly a reasonable person in the position of the plaintiff would not have seen the chain until a short distance before coming upon it and accordingly it could not constitute an obvious risk.

The Court of Appeal noted that s 5R of the CLA now governs the question of contributory negligence and provides as follows:

1. "The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
2. For that purpose:
   1. the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
   2. the matter is to be determined on the basis of what that person knew or ought to have known at the time. "

Beazley JA noted the provisions of s 5R(1) of the CLA were consistent with the High Court decision in Vairy v Wyong Shire Council8 where Callinan and Heydon JJ remarked a person owes a duty:

Beazley JA noted these remarks are consistent with the provisions of the CLA, s 5R(1). Beazley JA also noted contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known:s 5R(2)(b): Joslyn v Berryman.

The Court of Appeal also declined to overturn the trial judge's findings that the plaintiff had not been contributorily negligent. The plaintiff's speed was assessed as being reasonable, the presence of the chain was unexpected, having only been erected two days prior to the accident, and significantly the colour of the chain blended into the concrete below.

In relation to damages the defendant argued that the award of $83,250 for future economic loss was excessive bearing in mind that the plaintiff's injuries had not caused him to miss a single day from work. However the defendant did not dispute the trial judge's finding that the plaintiff's suffered a 16% loss of earning capacity. The defendant simply submitted that the trial judge did not determine what percentage of that loss was, or may be, productive of financial loss. The Court of Appeal rejected this ground of appeal as there was evidence that the plaintiff's earning capacity was presently productive of economic loss. The plaintiff had cut back his hours by about 12 hours a week and he had medical support from Dr Hopcroft who opined that the plaintiff was "now compromised in his pre-injury occupation of being a boilermaker".

The defendant's appeal was therefore dismissed on all grounds.

Implications

The Court of Appeal confirmed that the CLA must be the first point of reference for all questions concerning negligence.

The question of whether a duty of care is owed to a plaintiff does not depend on the defendant's actual knowledge. The question is whether the defendant knew or ought to have known that the risk was foreseeable: s 5B(1)(a) CLA.

The scope of a duty of care is determined prospectively, not by reference to what happened in the accident in question. The prospective test applies to the identification of a foreseeable risk of injury. It is only by the identification of the risk that an assessment can be made as to whether the response to the risk was reasonable.

Whether a risk is obvious is determined objectively having regard to the particular circumstances in which the plaintiff is in and requires a determination of whether the defendant's conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff.

Section 5R of the CLA is to be applied in determining the question of contributory negligence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.