Consolidated Broken Hill Ltd v Edwards

Court of Appeal (NSW)|2005-11-11|Before: Giles JA, Ipp JA, Grove J

Reported Decision : (2005) Aust Torts Reports 81-815

Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Hunt AJA at 77

CATCHWORDS: NEGLIGENCE-- occupier's liability -- occupier of private land -- duty of care to trespassers it allowed to pass over its land -- approach to risks -- relevance to breach of duty -- whether reasonable response by occupier to obviousness of risk. - NEGLIGENCE -- contributory negligence -- where deliberate and voluntary decision to undertake obvious and serious risk -- relevance of personal responsibility in apportionment of liability -- plaintiff's duty to take care for own safety. - Section 5R of Civil Liability Act.

Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR Phillis v Daly (1998) 15 NSWLR Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431 Vairy v Wyong Shire Council [2005] HCA 62 CASES CITED: Mulligan v Coffs Harbour City Council {2005} HCA 63 Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904 Swain v Waverley Municipal Council (2005) 79 ALJR 565 Woods v Multi-Sport Holding Pty Ltd (2002) 208 CLR 460 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Wyong Shire Council v Vairy; Mulligan v Coff's Harbour City Council [2004] NSWCA 247

Consolidated Broken Hill Ltd (Appellant) PARTIES: Trevor John Edwards (Respondent)

I G Harrison SC/J B Turnbull (Appellant) COUNSEL: B J Gross QC/R Wilkins/D Williams (Respondent)

McCabe Terrill (Appellant) SOLICITORS: Doyle Kingston & Swift (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40374/05 SC 20240/03

GILES JA IPP JA HUNT AJA

Friday 11 November 2005 CONSOLIDATED BROKEN HILL LIMITED v TREVOR JOHN EDWARDS

JUDGMENT 1 GILES JA: I agree with Ipp JA 2 IPP JA:

The issues on appeal 3 The first issue in this appeal concerns the liability in negligence of an occupier of private land to an entrant who was part of a class of persons that the occupier allowed, without objection, to pass over its land. The second concerns the degree of contributory negligence, if any, of which the entrant in this particular case was guilty, and the appropriate apportionment of liability to be applied. 4 The appeal is from a judgment of Grove J in an action by the entrant to the land (who is the respondent, Mr Edwards) against the occupier (who is the appellant, CBH) for damages for personal injury. His Honour found that CBH had negligently caused Mr Edwards to sustain serious injuries that rendered him paraplegic. He found that Mr Edwards had been guilty of contributory negligence and apportioned liability by attributing one third of the responsibility of the damage to him and two-thirds to CBH. The parties agreed the amount of Mr Edwards's damages and the judge handed down judgment in his favour. 5 CBH appeals on the grounds that his Honour erred in finding that it breached its duty of care, alternatively, in failing to attribute a greater share of responsibility for his damage to Mr Edwards.

The circumstances under which Mr Edwards was injured 6 Mr Edwards was injured when he was riding his bicycle over a bridge on land occupied by CBH. The bridge carried a railway spur line over a dry creek bed. The bridge was four metres long and was open on both sides - there were no walls or other barriers on the sides of the bridge that prevented a fall from the bridge 7 At the time, a train of about twenty rail wagons was parked on the spur line and occupied the entire length of the bridge. The distance between the extremity of the rail wagons and the concrete edge of the bridge was about 400 millimetres. From the edge of the bridge there was sheer fall of 4.9 metres to the creek bed below. 8 Mr Edwards attempted to cycle across the bridge through this narrow space of 400 millimetres. There was barely enough space for a cycle to pass. A jumper he was wearing caught on some protrusion on a rail wagon. This caused him to fall from the bridge onto the creek bed below and, as a result, to be severely injured and rendered paraplegic. 9 CBH neither owned nor operated the rail wagons. Nevertheless, there was evidence that they were parked on the rail spur by arrangement with it. Grove J, in his reasons, appears to have assumed that CBH exercised control over the parking and positioning of the rail wagons on the spur line and the bridge, and there is no challenge to this.

The incentives to cross the spur line bridge 10 The land occupied by CBH is part of mining leases that divide the southern part of the town of Broken Hill from the northern part. A public road known as Silver City Highway connects the southern to the northern part. A pedestrian and cycle pathway has been constructed alongside Silver City Highway. 11 Silver City Highway, as it runs from northern Broken Hill in a southerly direction, is more or less parallel with and to the west of the main railway tracks that pass through the town. At a point on or near the CBH mining leases, the highway bends eastwards and, on its way south, crosses the main railway tracks. The crossing of the tracks is achieved by means of an overbridge and the highway forms relatively steep grades as it passes across the tracks. 12 A practice had grown up amongst cyclists and pedestrians in Broken Hill of avoiding that part of Silver City Highway that passed over the railway tracks. This was because of the steep grades that that part of the highway entailed and also because the alternative route was slightly shorter. 13 The alternative route passed over the CBH mining leases and was the path along which Mr Edwards was cycling when he was injured. 14 The alternative route, for cyclists and pedestrians travelling south from north Broken Hill, involved them, first, turning off Silver City Highway along a strip of bitumen road, called Old South Road, that runs off the highway to the south-east and leads to and stops just short of the main railway tracks. Next, these cyclists and pedestrians would walk across the railway tracks (with the cyclists pushing their cycles). Thereafter a relatively flat path follows, adjacent to the spur line, and this leads to the bridge across the creek bed. The last stage, after crossing the spur line bridge, involves proceeding to a mine entrance and then arriving in south Broken Hill. 15 This alternative route, from Old South Road to the flat path beside the spur line and then across the spur line bridge, was in frequent and common use by cyclists and pedestrians, both adults and school children. CBH was aware of this.

Mr Edwards's actions on the day of the accident 16 Mr Edwards was an experienced cyclist who resided in the southern part of Broken Hill. On the morning of the day on which the accident occurred, he decided to cycle to the north of the town. He did so using the alternative spur line track and cycled across the bridge. The train of 20 rail wagons, which he had to negotiate on his return journey, was already parked across the bridge and he cycled past it on his way northwards. 17 Mr Edwards spent some time in northern Broken Hill and between 1.00 and 2.00 pm commenced cycling back towards his home in the southern part of the town. 18 He was not disturbed by the prospect of the rail wagons being parked on the spur line bridge. He said that prior to his accident he had seen rail wagons parked there. He had, previously, cycled across the bridge with rail wagons parked on it and had done so without experiencing any difficulty. He had seen other cyclists do the same thing. 19 Mr Edwards said that on these previous occasions, when rail wagons had been parked on the bridge, he had not dismounted from his cycle in order to walk across the bridge and had not seen any other cyclist do such a thing. He said that the space between the side of the parked rail wagons and the edge of the bridge would be too small to enable one to walk past, pushing a cycle at one side, and it would be unsafe to attempt to carry a cycle across. Walking across while straddling the cycle would be impractical. 20 Notwithstanding the very small space between the side of the railway wagons and the edge of the bridge, Mr Edwards did not perceive any risk to himself from riding his cycle across the bridge. He said that he was careful as he cycled across the bridge but, nevertheless, fell.

The trial judge's findings 21 Grove J observed that the people who used the shortcut, including Mr Edwards, were trespassers but nevertheless CBH owed them a duty of care: Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. His Honour said: "The status of the plaintiff as a trespasser is relevant to the content of the duty, but it is also relevant that the plaintiff was but one of many whom the defendant knew were availing themselves of the short cut." 22 His Honour said: "[T]he presence of any rail car would create a dramatic narrowing of the space or 'envelope' through which the plaintiff cyclist had to pass between the rail car and the precipitous drop to the creek bed." 23 His Honour said that it was foreseeable that the narrowing of the gap through which a cyclist would have to pass might lead to a fall onto the creek bed below the bridge. 24 His Honour agreed with an expert witness that: "[T]he risk was obvious and if the rail cars were put in that position then the probability of harm, if care was not taken [was] equally obvious. The potential of a nearly five metre fall makes likely seriousness of harm self-evident." 25 His Honour, with the consent of the parties, viewed the scene in their absence. He said in this regard: "The consequence of the view was to fortify my finding, in particular, that the parking of wagons in the circumstances described would create a considerable and obvious risk." 26 The judge concluded: "The simplest way of avoiding the risk would have been not to park rail cars across the bridge. This involves not using only a small four metre portion of the available spur track. It was not suggested that the whole of the spur was needed for rail car storage. When placed they needed to be shunted into position and there was no perceptible reason why, if it was necessary to use the spur beyond the bridge, the cars could not be separated at that point so as to leave a clearance at that location."

And: "[T]he parking of a rail car so as to narrow the passage of cyclists, known to frequently pass along the track route, created a foreseeable risk which was practicable and economical to avoid, and which a reasonable occupier would have taken steps to so avoid. It was that risk which fell due as the plaintiff attempted his passage on the particular occasion and the defendant is liable for the damage which he sustained as a result of its negligence." 27 Thus, his Honour found that CBH had breached its duty of care it owed Mr Edwards by allowing the rail cars to be parked on the spur line bridge. 28 Grove J accepted that Mr Edwards had fallen because his jumper had "snagged" on something on the rail carriage. His Honour found causation to be established (and there is no challenge to this finding). 29 As regards the contributory negligence of Mr Edwards, Grove J said: "I accept the evidence of the plaintiff that he had safely navigated his passage on his bicycle in similar circumstances on many occasions and I further accept that he was not conscious of the risk. I find, however, that he should have appreciated the risk. Insofar as I have held that a person in the defendant's position who turned the mind to the situation should have perceived the risk, so also should the plaintiff, if he turned his mind to it, have appreciated it." 30 His Honour went on to say: "The evidence explored alternatives including abandoning the journey and returning to use [Silver City Highway], dismounting and carrying the bicycle across the four metre bridge span, or moving across the bridge on foot while straddling the cycle (a somewhat awkward exercise as a performance in mime by counsel showed). I am unpersuaded that the failure of the plaintiff to adopt any of these postulated alternatives extinguished the liability of the defendant, but I am satisfied that the plaintiff has been shown to have failed to take reasonable care for his own safety, in failing to take sufficient care by having elected to ride past the rail car over the bridge, to ensure that his clothing was kept clear of the rail car as he passed it." 31 His Honour, as I have noted, assessed Mr Edwards's share of responsibility for the damage at one-third and that of CBH at two-thirds.

CBH's argument as to breach 32 Mr Harrison SC, who together with Mr Turnbull appeared for CBH, accepted that CBH owed Mr Edwards a general duty of care as occupier of the bridge. He submitted, however, that the judge had erred in finding that CBH had breached that duty of care. 33 Mr Harrison's oral submissions reiterated and built on the following written submissions filed on CBH's behalf: "The appellant says that the danger was clearly an obvious danger of which the respondent must have been aware. In the circumstances, the respondent ought not to have crossed the bridge on his pushbike. His failure to appreciate the danger that was obvious was the real cause of his accident, not any action or inaction on the part of the appellant. Any duty the appellant owed to the respondent did not extend to keeping carriages off the railway bridge." 34 CBH's written submissions relied on Phillis v Daly (1998) 15 NSWLR at 73 and Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431 at 478 in arguing: "[I]f a danger is not hidden or unusual but obvious an occupier does not need to provide against it." 35 CBH further submitted: "In circumstances where the bridge was not built as a pedestrian bridge, where a safer alternative is available to the respondent and where the risk facing the respondent in riding his bike across the bridge were obvious and substantial it could not be said that the parking of carriages on the railway tracks on the bridge indicated that the appellant was acting unreasonably."

The concept of obviousness of risk and the breach of duty 36 CBH's submissions require due regard to be had to the more recent statements by the High Court on the subject of obviousness of risk. The latest discussion occurs in Vairy v Wyong Shire Council [2005] HCA 62 and Mulligan v Coffs Harbour City Council [2005] HCA 63 but the High Court did not speak with one voice in these cases and it is helpful to commence the inquiry by referring to a joint judgment of five members of the High Court (Gummow & Callinan JJ did not sit) delivered six months before Vairy and Mulligan, namely Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904. 37 In Thompson the High Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) said at [36], 911: "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." 38 It is also helpful at this stage to repeat the reminders given by Callinan and Heydon JJ in Mulligan at [76] of the several occasions in which various members of the High Court in recent times have affirmed the relevance and importance of the concept of obviousness of risk. For example, as their Honours remarked, in Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 593 Gummow J said that the obviousness of the risk was important "at least in the mix of factors to be taken into account" and in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, "Gleeson CJ, with whom Hayne J agreed, thought obviousness decisive in relation to the recreational activity in which the appellant was there engaged". Callinan and Heydon JJ remarked that what Callinan J had said in Woods also emphasised the importance of obviousness and they noted, (at [77]), that in Ghantous v Hawkesbury City Council (2001) 206 CLR 512, "five judges of this Court stressed, and treated obviousness as a decisive factor" (at [8] 526, per Gleeson CJ, [163] 581, per Gaudron, McHugh and Gummow JJ, [355] 639, per Callinan J). 39 For the reasons that follow, I do not think, with respect, that anything said by the majority of the justices in Vairy and Mulligan departs in substance from what was said in Thompson and what had earlier been said on this topic in the instances mentioned by Callinan and Heydon JJ. 40 There were differences in the High Court as to the correctness of the principles applied by the Court of Appeal in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 - and indeed as to what principles the Court of Appeal applied. I am required, in order to reveal fully my reasoning (based on the judgments of the High Court in Vairy and Mulligan) as to the correct approach to be adopted to the concept of obvious risks, to set out my understanding of the basis of the Court of Appeal's decision. This is necessary as a majority in number of the justices of the High Court approved of the way in which the Court of Appeal dealt with this issue. 41 I think it sufficient to state that Tobias JA, who gave the leading judgment of the Court of Appeal, placed considerable reliance on the fact that the plaintiffs in those cases knew that the water into which they dived was of unknown depth and the danger of diving into it was obvious. His Honour found that, in the particular circumstances of those cases, because of the obvious danger it was not unreasonable for the defendants to fail to warn of the foreseeable risk of diving. I do not understand the Court of Appeal to have proceeded on the basis that diving cases constituted a separate category of negligence, or that obviousness of the risk meant more in diving cases than in other cases, or that the sole fact that the risk was obvious meant that the plaintiffs should fail. On my understanding of the judgment of Tobias JA, his Honour regarded the obviousness of the risk, in the particular circumstances of the two cases, to be so important a factor that the defendant authorities did not act unreasonably in not giving a warning of the risks that were present. Beazley JA, who dissented in Vairy, did not disagree as to the principles that applied but had a different view after weighing up all the facts. 42 In Mulligan, the High Court unanimously (but for reasons that differed) dismissed the appeal from the decision of the Court of Appeal. In Vairy the appeal was dismissed by a majority (again for reasons that differed) consisting of Gummow, Hayne, Callinan and Heydon JJ; Gleeson CJ and Kirby J (who delivered a joint judgment) and McHugh J dissented. 43 In Mulligan Gleeson CJ and Kirby J, in a joint judgment, said at [7] that, having considered the reasons of the Court of Appeal (and of the primary judge), they found no error. In Vairy their Honours said at [7]: "The obviousness of a danger can be important in deciding whether a warning is required."

Thus, although Gleeson CJ and Kirby J dissented on the facts in Vairy , they regarded obviousness of the risk as a factor relevant to breach of duty. They did not depart in any way from what they had said on this issue in Mulligan or Thompson. 44 In Mulligan, Gummow J said: "It was appropriate also for his Honour to examine the issue of scope of duty as he did, by reference to considerations, albeit not propositions of law, touching the readily apparent danger of an activity against which it was alleged the public authorities in question were obliged to warn entrants upon the public land."

The concept of "obviousness of risk" is not substantially different from the concept of the "readily apparent danger of an activity". The difference can only be semantic. 45 In Vairy Gummow J said that he agreed with Hayne J that: "[R]eference 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."

I infer, with respect, from these remarks that Gummow J accepted that while the obviousness of the risk was not necessarily determinative of questions of breach of duty, the concept was relevant to that issue. 46 In Mulligan Hayne J observed (at [52]) that a reasonable response to a risk of injury does not depend on the obviousness of the risk. This observation does not mean that his Honour regarded obviousness of the risk as an irrelevant factor. This is made plain by his Honour's succeeding observation, namely: "Rather, it is a judgment about what, in all the circumstances of the case, a reasonable authority having the care, control and management of an area to which the public has access would have done in response to the foreseeable risk …"

In my respectful opinion, "all the circumstances of the case" must include the obviousness of the risk, and Hayne J said nothing that detracted from this proposition. 47 In Vairy Hayne J said: "[162] The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred 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 [my emphasis]. They are not useful, however, when considering breach of duty. [163] 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." 48 Hayne J's reference to "[I]nquiries of this latter kind" (see [162]), in my respectful opinion, is not a reference to the obviousness of a risk but to "how someone other than the plaintiff could have avoided injury". It is the latter inquiry that would be particularly relevant when considering questions of contributory negligence. His Honour's acceptance, in [163], of "the importance of considering the probability of occurrence of the risk in question", and the reference to the probability of an occurrence of risk being "readily apparent to even the casual observer", make it clear that he considered the obviousness of the risk to be a factor relevant to breach of duty. The probability of the occurrence of a risk involves the degree to which the risk is obvious. 49 In Mulligan Callinan and Heydon JJ accepted (at [75]) that "[O]bviousness may be of such significance and importance, indeed of such a very high degree of importance as to be overwhelmingly so, and effectively conclusive in some cases". They concluded at [78]: "What we read Tobias JA to be saying in this case is that obviousness was the critical factor because all of the other relevant factors, each of which was considered by the trial judge, were not such as to outweigh the obviousness of the risk. This, in all of the circumstances, justified the omission to do the only thing in substance that the appellant contended the respondents should have done, erect an appropriate warning sign in an appropriate place or places. Obviousness of a risk very much conditions the response, or even the necessity for any response at all to it." 50 It remains necessary to refer to the observations of McHugh J in Vairy. McHugh J said at [19]: "Seldom will the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action by that party."

I understand this observation to imply that, in his Honour's view, obviousness of a risk is a factor to be taken into account in determining whether there has been a breach of a duty of care. 51 McHugh J criticised (at [43] and [44]) the approach of the majority of the Court of Appeal in Vairy on the basis that they had applied an erroneous rule that "the obviousness of the risk negates the need for a warning in a diving case". The majority of the justices in Vairy appear to have understood the approach of the Court of Appeal differently (namely, that obviousness of a risk was not a "rule", it was merely a factor to be taken into account and, in the circumstances of the case, was a critical factor). 52 McHugh J went on to say (at [46]): "The obviousness of the risk goes to the issue of the plaintiff's contributory negligence, rarely to the discharge of the defendant's duty. In the vast majority of - maybe all - cases, obviousness of the risk is relevant to the discharge of the defendant's duty only where the taking of precautions, other than giving a warning, is not a reasonably practicable alternative for the defendant."

His Honour's observations as to the concept of obviousness of risk are contrary to those made by Gleeson CJ and Kirby J, and Callinan and Heydon JJ. They also differ from those made by Gummow J and Hayne J. They are contrary to those previously made by the High Court in the cases to which Callinan and Heydon JJ referred and to the statement of principle made in Thompson . 53 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.

Did CBH breach its duty of care 54 Mr Harrison sought to draw some similarity between the circumstances in the present case and those in Vairy and Mulligan and submitted that the obviousness of the risk in the present case was so important a factor that it was reasonable for CBH to take no steps to respond to the risk created by the parking of the rail wagons across the bridge. In response to the proposition that CBH knew that, despite the obviousness of the risk, many cyclists (and pedestrians) crossed the bridge while rail wagons were parked there, Mr Harrison drew attention to the observations of Callinan and Heydon JJ in Vairy at [219] to the following effect: "The primary judge seems to have been impressed by a submission by the appellant that he had seen other people diving safely from the platform on the day of his injury, and on earlier occasions. That submission says as much against the appellant's case as it does for it. As we have noted, Murphy J pointed out in Shirt that drivers of motor cars customarily follow too close behind cars in front of them. That is true, but his Honour could equally have pointed out that this conduct, prohibited and criminalised by law as it was, demonstrated that people will continue to do it, and are not deterred by the relatively infrequent, but nonetheless occasional catastrophic accident that it causes."

Mr Harrison submitted that their Honours' remarks supported the proposition that little weight should be attached to the fact that CBH knew that many people or members of the public over a long period, cycled across the bridge while rail wagons were parked there. 55 It would be dangerous, however, to attempt to apply the reasoning in Vairy and Mulligan (which was dependent on the particular facts) to this case. As McHugh J remarked in Vairy at [30] findings of fact as to breach of duty "bind no one". See also Gleeson CJ and Kirby J at [3]. 56 The defendant in this case was not a local authority administering large tracks of public land used for recreational purposes. It is a public company occupying private land for its own commercial gain. In Ghantous, Gaudron, McHugh and Gummow JJ at [148] 577, said that there was no analogy, in the formulation of the content of a duty of care, "between occupation of privately owned land and the management and control by statutory bodies of lands set aside for public use and enjoyment." See also Kirby J at 605-606 [244]-[245]. There are other substantial differences between the facts in Vairy and Mulligan and the facts in this case. The circumstances of Mr Edwards's injury are fundamentally different to those of the plaintiff's in Vairy and Mulligan. The breach of duty on the part of CBH, as found by Grove J, was the positive act of allowing the rail wagons to be parked across the bridge. It was not a failure to warn. The factors that motivated members of the public to enter CBH's land and cross the bridge even while rail wagons were parked across it were different and more compelling than those that induced the plaintiffs in Vairy and Mulligan to dive into the water. I do not regard the circumstances in the latter two cases as being comparable. 57 In my opinion, the regular conduct of members of the public, that had been known to CBH for a long period, in crossing the bridge in manifestly unsafe circumstances, does have relevance to the reasonableness of CBH's response and cannot be discounted. CBH, in effect, controlled access to the bridge and used it for commercial gain. CBH knew that the way in which it used the bridge gave rise to a risk of serious injury to persons who cycled or even walked across the bridge. It, nevertheless, allowed members of the public to traverse the bridge on a regular and frequent basis. These are serious matters that affect the determination of whether CBH responded unreasonably to the risk. 58 There were steps that CBH could have taken to prevent members of the public from having access to its land or from crossing the bridge. It chose, deliberately, not to take such steps. It allowed the situation to develop whereby members of the public assumed that they could use the bridge as a short cut. In such circumstances, CBH acted unreasonably in allowing the rail wagons to be parked across the bridge. I agree with the decision of Grove J in this respect and see no error in the conclusion to which his Honour came.

Contributory negligence 59 As I have mentioned, Grove J found that Mr Edwards failed to take reasonable care for his own safety by failing "to ensure that his clothing was kept clear of the rail car as he passed it". 60 His Honour pointed out that one of the alternatives explored by the evidence was the abandonment by Mr Edwards of his plan of taking the short cut over the spur rail bridge. This would have required Mr Edwards to return to Silver City Highway and to cycle home along the adjacent cycle path. Although his Honour made express reference to this means whereby Mr Edwards could have avoided crossing the bridge, in fixing the appropriate apportionment he made no mention of Mr Edwards's failure to adopt this course. I repeat that the judge said in this regard: "[I] am satisfied that the plaintiff has been shown to have failed to take reasonable care for his own safety, in failing to take sufficient care by having elected to ride past the rail car over the bridge, to ensure that his clothing was kept clear of the rail car as he passed it." 61 Mr Harrison submitted that, on the evidence, Mr Edwards - as he was cycling towards the bridge - would have seen the rail wagons on the bridge when he was about 100 to 150 metres from them. He therefore would have had ample time and opportunity to retrace his steps to Silver City Highway. 62 Mr Gross QC, who together with Mr Wilkins and Mr Williams appeared for Mr Edwards, did not dispute that Mr Edwards was that distance from the rail wagons when he first saw them. Moreover, as I have observed, Mr Edwards had seen the rail wagons parked across the bridge when he traversed it in the morning on his way to the northern part of Broken Hill. 63 The fact is that Mr Edwards simply did not think that there was any risk in cycling past the rail wagons over the bridge and rode on, without due thought for his own safety. 64 On the basis that Mr Edwards was about 100 to 150 metres from bridge when he first saw the rail wagons on the bridge, he would have been about 200 to 250 metres from the point where he turned off Silver City Highway on to Old South Road. The path over that distance was relatively flat. He was not in any hurry and time was not an issue. It would have taken little effort to cycle back to the point where had turned off. He could then have continued his journey home on the public cycle path provided. He would thereby have avoided crossing the bridge and the serious and obvious danger that that activity entailed. He had ample time to make the decision whether to proceed along the bridge or to retrace his steps to the highway and possessed all the information necessary to make that decision. 65 In my opinion, a reasonable person in the position of Mr Edwards would not have gone on to cross the bridge (cf s 5R(2)(a) of the Civil Liability Act 2002)(NSW). In other words, apart from not using sufficient care when crossing the bridge (as Grove J found), Mr Edwards was also guilty of contributory negligence in not turning around and cycling home on the cycle path adjacent to Silver City Highway when he saw the rail wagons on the bridge. Indeed, in my opinion, the latter is a more serious facet of Mr Edwards's contributory negligence than his lack of care when actually crossing the bridge. 66 With respect to his Honour, I consider that he erred in failing to take into account Mr Edwards's contributory negligence in proceeding with his journey and not using the alternative means of access to southern Broken Hill when he determined apportionment of liability. On this ground alone I consider that his discretion miscarried. 67 A further factor to which his Honour made no express reference was that Mr Edwards made a deliberate and voluntary decision to cross the bridge despite the obvious and serious risk that faced him in doing so. Appropriate weight must be given to considerations of personal responsibility when determining whether there has been a breach of a duty of care or contributory negligence. If due regard is not had to Mr Edwards's informed decision to take the obvious risk, the concept of personal responsibility is negated. 68 Bound up with the importance of personal responsibility when assessing apportionment of liability are the following remarks of Callinan and Heydon JJ in Vairy (at [220]): "[O]f relevance to any question of contributory negligence …, we would seek to make the point that it is not right to say, without qualification, that the difference between the duties of an injured plaintiff, and those of a tortfeasor, is that the former owes absolutely no duties to others including the defendant, while the latter owes duties to all of his 'neighbours'. The 'duty' to take reasonable care for his own safety that a plaintiff has is not simply a nakedly self-interested one, but one of enlightened self-interest which should not disregard the burden, by way of social security and other obligations that a civilized and democratic society will assume towards him if he is injured. In short, the duty that he owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized." 69 These remarks are consistent with s 5R(1) of the Civil Liability Act which provides: "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." 70 Section 5R(1) was introduced into the Civil Liability Act by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). In the second reading speech introducing the bill which became the Civil Liability Amendment (Personal Responsibility) Act, the Premier said (Hansard 23 October 2002 at 5765) that many of its provisions were modelled on the recommendations in the final report by the panel appointed by the Commonwealth and State governments to review the law of negligence (review of the Law of Negligence Final Report September 2002). Section 5R(1) is in accord with Recommendation 30 of the panel. Paragraph 8.10 of the panel's final report states: "8.10 In the opinion of the Panel, there is in the Australian community today a widely-held expectation that, in general, people will take as much care for themselves as they expect others to take for them. This is an application of the fundamental idea that people should take responsibility for their own lives and safety, and it provides powerful support for the principle that the standard of care for negligence and contributory negligence should be the same."

Section 5R(1) reflects this "fundamental idea", as well as the concepts expressed by Callinan and Heydon JJ in Vairy (at [220]). 71 Mr Gross submitted that Mr Edwards's contributory negligence was less serious than that of CBH as Mr Edwards was negligent merely in regard to his own safety, but CBH was negligent as regards the class of persons that used the spur line bridge. For the reasons set out in the preceding three paragraphs, that submission cannot be accepted. 72 The risk brought about by the parking of the rail wagons on the bridge was as manifest to Mr Edwards as it was to CBH. Just as the accident could have been avoided had CBH not allowed the rail wagons to be parked on the bridge, so it could have been avoided had Mr Edwards decided not to cross the bridge. In my opinion, the blameworthiness of both parties is the same and the causal potency of their actions is also the same. 73 In my opinion, liability for the damage should have been apportioned equally and his Honour erred in failing to do so.

Conclusion 74 The agreed damages amounted to $1,825,830. As the judge's finding was that Mr Edwards's share of responsibility for the damage was one-third and that of CBH two-thirds, his Honour entered a verdict and judgment for Mr Edwards for $1,217,220. 75 In my opinion, the appeal should be upheld, the verdict and judgment should be set aside and in lieu thereof there should be entry of a verdict and judgment for Mr Edwards in the sum of $912,915. 76 I would order Mr Edwards to pay the costs of the appeal. He should be allowed a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. 77 HUNT AJA: I agree with Ipp JA.

15/11/2005 - Paragraph [56]Line 5, full stop inserted after [244]-245]. "These" changed to "There".Line 6, "difference" changed to "differences" - Paragraph(s) 56

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Suitors Fund Act 1951(NSW)

Civil Liability Amendment (Personal Responsibility) Act 2002(NSW)

Suitors' Fund Act 1951(NSW)

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