A breach of duty?
41 Although the High Court has considered the matter on a number of subsequent occasions the general principle by which it may be determined whether a public authority has breached its duty of care remains that expressed by Mason J in Wyong Shire Council v Shirt (1979) 146 CLR 40 at 47-8:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."
42 One question which has troubled the High Court and this Court, since Shirt is whether a defendant is liable for a risk which was obvious. The troublesome question has been whether, because the risk was obvious, the defendant is relieved of a need to guard against it materialising.
43 In Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512, the High Court was concerned with the appropriate principles to apply when determining whether a local authority had breached its duty of care with respect to public roadways. Gaudron, McHugh and Gummow JJ concluded that although people may be expected to avoid obvious hazards some allowance must be made for inadvertence (at 580-581):
"The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger.
In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care …
…persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ), or the surrounding area (as in Buckle , where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. Each case, of course, will turn upon its own facts."
44 In Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407, Giles JA ([31] and [39]) when considering Brodie and Ghantous, said that these authorities:
"firmly establish that the content or breach of the duty of care of a council (or other entity responsible for a public area) involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety.
On my reading, the reasoning in the joint judgment in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council made the proposition that persons using the road will themselves take ordinary care one of the matters in the balancing of matters in accordance with Wyong Shire Council v Shirt ."
45 In Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904, the High Court considered the case of a delivery driver who injured her back at the respondent's loading dock when she attempted to move an industrial waste bin that was blocking her access. In a joint judgment the court said at [35]-[37] that:
"The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response…
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence."
46 The critical factor in the decision to allow that appeal was stated at [138]: "in the circumstances that prevailed, the respondent knew that, frequently, delivery drivers would move the bins. The respondent knew that not all drivers were capable of doing that without risk of injury". Although the risk of attempting to move a heavy bin may have been obvious it was but one factor to be taken into account when considering the defendant's obligation.
47 In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 the High Court considered whether a Council had a duty to erect a warning sign near a rock platform from which the plaintiff dived and was injured. By majority the court upheld the decision of the Court of Appeal that a sign was not required. Vairy was heard together with Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43, which involved an injury sustained as a result of the appellant diving into a shallow creek.
48 In Mulligan Gleeson CJ and Kirby J, who were in the minority (but not in a manner relevant to this issue) concluded that "the obviousness of a danger can be important in deciding whether a warning is required." Whether a warning sign is required "is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that people will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits"[8].
49 Although their Honours were of course speaking in the context of a failure to warn, their remarks are of universal application whenever a risk, which may be more or less obvious, exists within land under the control of a public authority.
50 On this issue Gummow J said (at [55]):
"Something further should be said at this stage respecting the somewhat confused state in which the issues in Vairy came to this Court and were argued here. The plaintiff lost in the Court of Appeal the verdict recovered at trial before Bell J. The leading judgment of Tobias JA placed great weight upon the significance of the notion of obviousness of risk as destructive of the plaintiff's case. In his appeal to this Court, the plaintiff complained of this as displaying error in principle. This point also was stressed in the submissions to this Court in Mulligan . From a reading of the reasons of Tobias JA, there is room for debate as to how determinative of the outcome that weight was. But, in any event, I agree with Hayne J, for the reasons he gives, that reference to a risk being "obvious" cannot be used as a concept necessarily determinative of questions of breach of duty or, I would add, of questions of the existence and content of duty itself."
51 Although it may not be determinative, the obviousness of a risk is a factor to be considered. In the passage with which Gummow J expressed agreement Hayne J said (at [162]-[163]):
"The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred in Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754 to as the obviousness of the risk. Reference to a risk being "obvious" is apt to mislead and cannot be used as a concept determinative of questions of breach of duty. Not least is that because obviousness of risk may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Inquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty.
That is not to deny the importance of considering the probability of occurrence of the risk in question. The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of inquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. And in looking at the reasonable response to a foreseeable risk it is necessary to recall that there will be times when others do not act carefully or prudently. That is why, as the Court of Appeal recognised ( Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754 at 65,899 [195]), what it referred to as "the obviousness factor" is not to be elevated into some doctrine or general rule of law. It is why little if any assistance is to be gained from considering the several American cases to which the Court of Appeal referred in connection with what was identified as the "open and obvious doctrine" sometimes applied in several jurisdictions in the United States."
52 (See also Callinan and Heydon JJ in Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 at [74]-[77]).
53 This problem has been considered in the Court of Appeal on a number of occasions and there are many helpful statements of the relevant principle including that of Ipp JA in Consolidated Broken Hill Ltd v Edwards (2005) NSWCA 380 at [53]; (2005) Aust Torts Reports ¶81-815:
"A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive."
54 This passage has been cited and applied by Hunt AJA in Randwick City Council v Muzic [2006] NSWCA 66 at [24] and Shellharbour City Council v Johnson [2006] NSWCA 67 at [23]; McColl JA in Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [79]; Campbell AJA in Eutick v City of Canada Bay Council [2006] NSWCA 30 at [69]; Ipp JA in Edson v Roads & Traffic Authority [2006] NSWCA 68 at [103]; Tobias JA in Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 at [50].
55 With respect to the issue of whether the obviousness of a risk is relevant to the existence of a duty of care as well as to breach, this Court has recently held that "the weight of authority in the High Court is that the question of obviousness relates to breach and not to duty" (Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 at [58]).
56 I am conscious of the difficulties of utilising factual determinations in previous cases to assist in the resolution of a factual question in a later case. However, there may be utility in examining how the issue of "readily apparent" danger in the past has been weighed with other factors relevant to the reasonableness of a defendant's response to a risk.
57 In Bernasconi v Newcastle City Council [2005] NSWCA 422, McColl JA at [34] held that uneven pavers in a mall were an obvious risk. Weighed with the other circumstances of the case "including the location of the fall, the nature of the opponent's responsibility in a highly trafficked area and the practicality of remedying unevenness in the Mall", her Honour determined that the trial judge was correct in finding that the Council was not in breach of its duty.
58 In Ainger v Coffs Harbour City Counci [2005] NSWCA 424 at [95], McColl JA held that the defective reconstruction of a footpath where a 10-15 mm lip was left in a path in a busy shopping centre was a breach of duty. The fact that the Council "was on notice as to its existence and had the resources and capacity to remove it" outweighed the expectation that people would avoid the risk of tripping through care for their own safety.
59 Campbell AJA in Eutick v City of Canada Bay Council [2006] NSWCA 30 found a lip in the roadway adjacent to a busy road crossing to be an obvious risk. His Honour rejected the argument that it was unreasonable for the council to expect that people taking care for their own safety would notice the lip while also looking for oncoming traffic and held that the Council's response was appropriate in light of the magnitude of the risk. At [88] and [97] Campbell AJA observed:
"Human beings routinely perform far more complex tasks than observing a road surface over which they pass and approaching vehicles. Pedestrians deal constantly and in very large numbers with more dangerous and complex crossings than the one in Great North Road …
Crossing over pedestrian crossings is a normal incident of life, particularly in cities and, as with footpaths, they are by no means uniformly smooth and often contain defects, cracks, repaired patches misplaced tiles and other obstacles."
60 In Edson v Roads and Traffic Authority [2006] NSWCA 68, Ipp JA found that the risk posed by crossing a freeway by a particular path was an obvious one. However, his Honour found at [104] that in this case the obviousness of the risk was not conclusive. Ipp JA observed that the obviousness of the risk of crossing at this point was:
"not deterring the local inhabitants, of which many were children. The RTA could not assume that most persons would take reasonable care for their own safety … Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result."
61 Likewise, in finding that the defendant had breached its duty of care in Consolidated Broken Hill at [56]-[57], Ipp JA found that the obviousness of the risk of falling off a bridge, where the parking of rail wagons only allowed a small space for passage, was outweighed by the fact that the defendant was a private company (not a public authority) and was aware of the use of the bridge as a short cut.
62 Hunt AJA in Shellharbour City Council v Johnson [2006] NSWCA 67 held that the risk of a collision between cyclists on a blind corner of a cycleway was obvious, but that the risk of injury was serious and the possible means of controlling the danger were "relatively inexpensive." At [25]-[26] Hunt AJA found that the Council's response to the risk was unreasonable and in breach of its duty of care.
63 In Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 at [29], Basten JA found that a patch of spilt oil in a carpark on a cloudy afternoon was not obvious in the sense that it implied a finding "that a person taking reasonable care for their safety, whilst walking across the car park, need necessarily look at the ground in those circumstances."
64 In Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 Tobias JA held that a low slung rope bordering a car parking area adjacent to playing fields was not an obvious risk. At [49] his Honour distinguished this risk from:
"A case of uneven paving stones or holes or the other kinds of hazards which a pedestrian should expect in the course of walking along a public street in an urban area. There was nothing associated with the natural state or condition of the ground upon which the appellant was walking which would constitute an obvious hazard of the nature of those referred to in the pedestrian cases. In the present case, the respondent had erected a rope barrier which, to any person who did not anticipate its presence, clearly constituted a trap for pedestrians who were, in effect, invited by the respondent to use the entranceway as a pedestrian route from the carpark to the playing field."
65 There are obvious difficulties in describing a risk as obvious when the level of risk may vary depending on the time of day or the person who must confront it. During the day, a bollard in a pathway would be obvious to any sighted person who was keeping an appropriate lookout. However, a bollard in a pathway at night is unlikely to present an obvious risk except to someone, who, from having seen it during the daylight, is conscious of its presence. Accordingly, a risk will be obvious when it is capable of being readily appreciated at the time that a person comes upon it. As Basten JA said in Timberland Property Holdings Pty Ltd at [25]:
"However, obviousness depends to a significant extent on the circumstances and position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances."
66 In the present case, although the bollard was obvious in the daytime, by putting it in the middle of the pathway the respondent created a real and significant hazard for cyclists, particularly during the night time. On a dark night, cyclists, even with the usual light on their bike, would be unlikely to see a bollard without a reflector. Furthermore, it was entirely foreseeable that the reflector tape would be missing at times.
67 It was accepted by the respondent that the purpose of the bollard was confined to deterring park maintenance workers from driving along the path. However, not only were those workers amenable to direct control by the Council, a slight deviation would enable a moderately determined driver to avoid the pole and continue along the path. Although it might operate as a reminder to a misbehaving worker it was hardly a significant impediment to their misbehaving.
68 To my mind the particular bollard was of little if any practical utility. Because it was in the middle of the path, it was a serious hazard for cyclists and others using the path at night. In my opinion there was no reasonable justification for creating that risk and the Council accordingly breached its duty of care to the appellant. The risk which the bollard created was entirely disproportionate to any benefit, if it had any benefit at all.
69 In my opinion the trial judge should have found that by placing the bollard in the centre of the pathway the Council breached its duty of care to the plaintiff.