See also the discussion in the Review of the Law of Negligence, Ipp et al (September 2002, Chapter 7).
33 Also pertinent is the decision of the Court of Appeal in Richmond Valley Council v Standing [2002] NSWCA 359. In examining the existence of the duty of care Heydon JA, with whom Handley and Sheller JJA agreed, referred to the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie where it was stated that 'not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury'. Accordingly, the duty must be assessed in part by reference, not to any requirement for the footpath to be safe in all circumstances, but to the position of 'users exercising reasonable care for their own safety' [para 163 in Brodie]. As earlier mentioned, their Honours emphasised the importance of this standard with regard to pedestrians.
34 Heydon JA said, at [29] that:
… The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach.
35 In examining the facts of the case before the court Heydon JA said that a pedestrian exercising reasonable care for his or her own safety ought to have seen the hole in question.
36 His Honour added, at para [54]:
Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety . The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance. [Emphasis added]
37 Heydon JA further said that in so far as there may have been any hazard, it was not only obvious, but insignificant and common. Thus it was not a danger, a hazard or a trap.
38 In light of the authorities a number of features of the facts of the case before us should be emphasised. The accident occurred at the side of the highway in a semi-rural area. The nearest building was an industrial one, 300m away and the closest dwelling was about a kilometre away. While pedestrians were not prohibited and occasionally used the roadway, the area where the opponent walked was a dedicated cycleway. The opponent was not a stranger to the area having walked it on three prior occasions, by day and by night. He had travelled the area by car on numerous occasions. He was aware of the bridge over the railway line with its concrete and metal guard. As he crossed the bridge he looked down and saw the railway line about 10m below. The acute angle at which the bridge crossed the railway line must have been obvious. The opponent could also see where the bridge ended. Prior to the accident the opponent said that he had consumed six beers but denied that he was intoxicated.
39 After he had taken a few steps past the end of the concrete guard rail to the bridge, the opponent stepped over the lower metal guard rail into the adjacent bushland. He assumed the area to be initially flat. In the darkness of the early hours of the morning the opponent moved a couple of steps into the bush in order to urinate. In so doing he fell and went over the embankment wall landing on the rail lines some 10m below.
40 The purpose of the guard rails on the bridge and on the roadway where the opponent stepped over was to prevent motor vehicles leaving the roadway, not pedestrians. The guard rails were of a standard type and used by the RTA throughout the State.
41 What might a reasonable authority reasonably foresee? It could foresee that a pedestrian might walk along the cycleway during the night. It might foresee that a pedestrian or motor vehicle occupant might, through illness or human necessity, step over the guard rail onto the bushland at the side of the road to be sick or urinate. But could it reasonably foresee that a pedestrian would step over the guard rail at this point, immediately past the rail bridge and, importantly, move into the bushland away from the guard rail and roadway?
42 It seems to me that the risk that a person might do what the opponent did was so far fetched and fanciful as not to be reasonably foreseeable by the claimant. The risk was simply so remote as not to be a reasonably foreseeable one. Moreover, I do not accept that the transition from the 1m high concrete guard rail to the 700mm metal guard rail at the edge of the bridge close to where the opponent stepped over into the bush, constituted a trap which required some protection or warning. The lower height of the guard rail did not 'invite' the opponent to step over it into the bush beyond. In accordance with the principles expounded by Heydon JA in Standing, there simply was no hazard or trap created by the change in the height of the guard rail.
43 The opponent's assumption that it was safe to leave the road where he did was unwarranted. He had no good reason to do this given his previous experience and knowledge of the area. There simply was no hidden trap or concealed hazard which required a warning sign and light and his Honour was wrong to so find. Nor was the evidence such as to enable a finding that the RTA had an obligation to raise the height of the rail 'for the duration of the particular hazard'. The lower rail (from that on the bridge) did not indicate that it was safe to step over the rail and enter the adjacent bush.
44 Undemanding as the test of reasonable foreseeability may be, it was simply not satisfied on the facts of this case, whether examined at the duty or breach stage. It was simply too remote a risk to reasonably foresee. There was no pre-accident history to alert the claimant. It was plainly uncommon for pedestrians to walk along the cycleway, particularly at night.
45 Moreover, the opponent chose to step over the guard rail immediately after crossing the bridge from which he had observed the rail line cutting the road at an acute angle. Indeed, he then elected to take several steps into the bush behind the rail in the darkness of night when there was inadequate light for him to gauge whether the surface was flat or sloping.
46 What is plain is that the plaintiff was not taking reasonable care for his own safety, as he was obliged to do. It cannot be said that the opponent was exercising reasonable care for his own safety by waiting until he crossed the bridge and the rail height diminished. He stepped over the guard rail in the dark without knowledge of the terrain on the bushland side. He knew that the area was immediately adjacent to the 10m drop to the railway line below and he knew or ought to have known of the acute angle at which the bridge cut the railway line. This would have been apparent when he crossed and looked down. To compound his lack of regard for his own safety, the opponent then took a few steps into the bush where he could not know or reasonably assume that the ground was flat. In fact, it was steeply sloping and the opponent fell and injured himself.
47 His Honour made findings about the opponent's negligence, which are not challenged by any notice of contention. In stepping over the guard rail where he did, and in the dark, his Honour found that the opponent failed to take sufficient care for his own safety.
48 As the High Court stated in Brodie, users of roadways need to exercise reasonable care for their own safety. This is even more important with pedestrians. Pedestrians are ordinarily expected to look where they are going and to perceive and avoid obvious hazards. Unfortunately, this opponent failed to take elementary precautions for his own safety and it was his failure to take reasonable care which caused his downfall. In my opinion, the appeal should be allowed.