August 29, 2023

In what circumstances can an injured cyclist recover damages against a local council for failing to remove an obstacle that creates a “not insignificant” risk of a foreseeable injury on premises it is required to maintain?

Consider the case of Diane Moore who was riding an electric bicycle along the 8.25km pathway – shared by pedestrians and cyclists – that runs from Lennox Head to Skennars Head in northern NSW.

Nothing Done To Avert Risk; Court Halts $200K Awarded To Injured Cyclist Of Accident On Lennox Head- Ballina Bike PathShe attempted to overtake some pedestrians on a section of the bikeway on the north bank of the Richmond River in Ballina.

They moved left as she approached, after hearing the ring of her handlebar bell.

Moore steered to the right of the path but on seeing a metal bollard about 20cm from the edge, veered off and lost control.

Her crash off the bike on to her hip fractured her pelvis.

That was in August 2020.

The council defended Moore’s injury compensation claim against it as the body responsible for the management and control of the shared pathway and claimed – among other things – that the bollard was an “obvious risk” of which the plaintiff was deemed to be aware by operation of the NSW Civil Liability Act.

The District Court at Lismore adjudged the local council negligent for failing to remove the single bollard from the pathway at the same time as or after it removed one in the same position of the path – but on the opposite side – in 2016.

In its view, “the risk of harm could no longer be justified because once one bollard had been removed, there was no justification for retaining the second.”

It awarded the injured cyclist damages totalling $193,531.39.

The council appealed.

President of the Court of Appeal Julie Ward and appeal judges Anna Mitchelmore and John Basten accepted that an injury to cyclists from having to take evasive measures to avoid pedestrians or other cyclists was foreseeable.

They also agreed with the trial judge that the “risk of harm” viewed prospectively – and against which the council was required to take reasonable measures to prevent – was that of a cyclist being injured from colliding with the bollard or when attempting to avoid a collision.

They queried though whether in retrospect, the council had – by leaving the single bollard in situ – breached its duty to prevent such harm?

Put another way, was it a reasonable response for the council – when confronted with the foreseeable risk – to do nothing?

There was no dispute that the presence of two bollards had created a “not insignificant” risk of injury and that their presence had the effect of promoting safety by encouraging cyclists to slow down.

The trial judge had though – they reasoned – accorded too much weight to just five words in a road safety audit conducted by engineers Ardill, Payne & Partners stating that one bollard “is unlikely to slow cyclists”.

In the opinion of Justice Basten with whom his sister justices concurred, the single bollard “may well have continued to serve some limited function in dissuading cyclists from travelling too fast”.

But even in the absence of any social utility being achieved from a single bollards – eg by reason of a nil safety benefit – it did not follow that it was a hazard requiring removal to take of reasonable care for cyclists’ safety.

The council was indeed entitled to do nothing in relation to the single bollard as permitted by s 5B (1) (c) of NSW’s Civil Liability Act because it was not reasonably required on safety grounds to be removed, even though it could be accomplished very cheaply.

The injured cyclist had thus – they ruled – failed to establish that the council had taken unreasonable steps to care for her safety. The appeal court reversed the lower court’s ruling and dismissed her claim on 6 July 2023.

Ballina Shire Council v Moore [2023] NSWCA 155 Ward P; Mitchelmore JA; Basten AJA, 6 July 2023  Read case

Foreseeable & Not Insignificant s 5B (1) (a) & (b) s 9 (1) (a) & (b)
Precautions reasonably required s 5B (1) (c) s 9 (1) (c)
Reasonableness qualifiers: probability; seriousness; burden; utility s 5B (2) s 9 (2)
Presumed aware of Obvious Risk s 5G s 14
No duty to warn re Obvious Risk s 5H s 15

Categories: Cyclist accident

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