Plaintiff's Submissions
305In oral submissions, Mr Campbell, Senior Counsel for the plaintiff submitted that the mere fact of a boom gate being closed on a road regularly in use as a cycling route posed a hazard to people such as the plaintiff. If there was any doubt about the matter, it was contended it was dispelled by the incident involving Mr Smith on 23 January 2007 (T 245).
306The Council it was noted was responsible for constructing the boom gate in an area known to be regularly used by people throughout the course of a day. In those circumstances, it was submitted, it was incumbent upon the Council to take reasonable steps to protect cyclists known to be lawfully using the roadway for recreational use.
307Reliance was placed upon observations made by the High Court (Gaudron, McHugh and Gummow JJ) in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [163] in support of the proposition that the Council, as a roads authority, had:
"... the basic duty of care to take reasonable care for the safety of lawful road users exercising reasonable care for their own safety." (T 246)
308The passage in Brodie to which attention was drawn, it is to be noted, was in the discussion under the heading "Pedestrians". In that regard it does not directly deal with a case such as the present involving a cyclist. However, that said, in the passage relied upon it was observed that persons using a roadway ordinarily would be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards (in the case of pedestrians, examples were given of uneven paving stones, tree roots or holes). The Court also observed in Brodie that some allowance, of course, had to be made for inadvertence. In this respect, certain dangers, it was stated, may not readily be perceived because of particular circumstances such as inadequate lighting or the nature of the danger, or the surrounding area. The Court then proceeded:
"... in such circumstances there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning': Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117."
309Reference was also made in Brodie to the fact that in Romeo (1998) 192 CLR 431 at [52], Toohey and Gummow JJ had noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Each case will, it was noted, of course, turn on its own facts.
310Mr Campbell also referred to observations of the High Court in Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330. In that case, Gummow J noted that a road authority such as the RTA is not obliged to exercise reasonable care in the abstract; still less, is it obliged to ensure that a road be safe in all circumstances: at [46].
311It was further noted that the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety", the extent of the obligation of reasonable care is to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves: at [47].
312In Dederer, Gummow J also addressed the proper identification of the risk emphasising the need in determining the scope of duty of care of accurately identifying the actual risk of injury faced by the plaintiff:
"... It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be ..." (at [59]).
313Accordingly, in the present case the plaintiff pointed to Mr Smith's accident as demonstrating, as related matters, both the fact that under the arrangement the Council had with the Club that the boom gate was closed when it was expected to be open, and that that circumstance was relevantly connected with a similar accident involving the plaintiff. In both cases injury had been suffered by experienced cyclists during training runs.
314The plaintiff, it was submitted, belonged to a class of persons that should have been within the reasonable contemplation of the Council (and the Club), being cyclists who early in the day were known to use the boom gate entry on a regular basis (T 246).
315These matters, it was submitted, were fundamental in the application of the General principles relating to a duty of care as set out in s 5B of the Civil Liability Act 2002 (CLA). It was submitted that the relevant risk was a foreseeable one in circumstances in which it was known that cyclists utilised Riverside Drive as part of a well-established cycleway.
316It was further submitted, that that risk was not an insignificant one and required the adoption of appropriate safeguards (T 248).
317In the application of the provisions of s 5B(2) of the CLA it was submitted that the probability of harm to a cyclist was significant. A cyclist has no external protection whilst riding. Striking a barrier at speed could foreseeably occasion serious harm and even potentially death (T 248).
318That foreseeable risk of serious injury it was contended, required risk management by a system that co-ordinated and regulated the boom gate operation.
319It was contended for the plaintiff that the risk was one that was capable of being readily addressed. Put in its simplest form, there was a need for the gate to be open when in use by cyclists. A proper system of operation would ensure that the boom gate would have been opened by 5.00am.
320Mr Campbell in his submissions made it clear that the plaintiff's case was not a criticism of the Council's action in choosing a boom gate mechanism over, an alternative such as a barricade involving the use of chains. However, having chosen to create what he referred to as an "obstruction" there was a corresponding obligation that went with it, namely, an obligation to ensure that any obstruction of the roadway could operate only for the purpose and for as long as necessary to deal with the night time problem with "hoons" (T 249).
321That problem, it was submitted, was confined to a relatively limited period, namely, at night time. The likely early morning presence of those referred to as "the lawful users of the area" (cyclists) arose from the fact that the route followed by the plaintiff operated as part of a cycleway.
322The evidence, it was submitted, did not reveal that any consideration had been given by the Council as to the possible impact of the boom gate operation for cyclists, and the specific requirements that would ensure that the interests of cyclists were taken into account and protected. Reference was made to the evidence of Mr Lay in which he initially stated that police proposed a 5.00am opening (from which evidence Mr Lay later sought to resile) (T 249-251).
323Criticism was directed to the investigation into Mr Smith's accident. Both Mr Lay and Mr Mable had known that that accident occurred when the boom gate had been left in the closed position. However they failed to make any enquiries to determine or investigate the adequacy of the arrangements concerning the opening and closing of the boom gate and the reason as to why the gate had been left in the closed position at the time of Mr Smith's accident. Mr Mable acknowledged, it was noted, that "obviously you want the gate open" (T 250).
324The submission for the plaintiff was that the Council had failed, at the time the boom gate was designed and constructed, and after construction, to consider the safety interests of cyclists and the potential conflict that existed between the closure of the boom gate at night and the daily use of Riverside Drive as part of a cycleway, early each day. The submission was:
"... an irresistible inference necessarily arises to the effect that no one at the Council turned their mind to the need to have the obstruction cleared at an appropriate time of morning ..." (T 251)
325In relation to a proper system for the control of the boom gate it was submitted for the plaintiff that the Council already had in place a system for using contractors to open the gates in other parks in the Municipality. Rather than pursue the proposal that had been suggested by Mr Jarvis to engage the Council's existing contractors to open the boom gate according to a timetable, the Council instead chose the informal arrangement with the Club which Council records indicated would be at no cost to it and was one that met the Club's request.
326On the issue of the plaintiff's failure to see the boom gate, Mr Campbell submitted that the plaintiff would be believed when he said that all he could see was a horizontal white line which did not provide any clue as to the fact that the gate was closed rather than open. That, it was submitted, is to be explained by the particular matters identified in the expert evidence which gave rise to a problem of visual misinterpretation (T 262). This was said to arise, in part, as an aspect of the cyclist's expectation of the gate being in the open position (T 263). In these circumstances, it was submitted, the closed boom gate could not be said to have constituted an "obvious risk".
327On the meaning of "obvious risk" within s 5F of the CLA, Mr Campbell relied upon the decision of Beazley JA (as her Honour then was) in Council of the City of Greater Taree v Wells [2010] NSWCA 147 where her Honour stated at [75] and [76]:
"Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the respondent (as the relevant plaintiff) was in: see Fallas v Mourlas [2006] NSWCA 32, where Ipp, Basten and Tobias JJA determined that 'the position of the plaintiff' comprehended the particular circumstances in which the risk materialised and the harm was suffered.
The question of obvious risk requires a determination of whether the appellant's conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the respondent: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; (2007) Aust Torts Reports 81-874. In Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff's knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at [106]-[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which 'the aspects of "the position" of the plaintiff' are to be ascribed to the reasonable person."
328Mr Campbell also relied upon the observations of McClellan CJ at CL (as his Honour then was) in Carey v Lake Macquarie City Council [2007] NSWCA 4 at [65]-[66] as follows:
"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.'
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."
329In his oral submissions, Mr Campbell argued that the Club assumed the responsibility for opening and closing the gate (T 328).
330It was further submitted that the correspondence sent by the Council to the Club in 2004 supports the conclusion that the opening and closing of the gate had been delegated to the Club and accordingly there was a duty of care owed by the Club to lawful road users who may suffer injury if obstructed in their use of it. That submission was subsequently modified to a contention that there had been a "purported delegation" by the Council to the Club (T 329:30-35).
331It was contended that the Club was in breach of its duty by reason of what was described as the "haphazard process" by which the operation of the boom gate was operated (T 329).
332There was no evidence, it was submitted, as to how the Club "discharged [its] duty", the only evidence being that the Club simply left the operation of the boom gate to its cleaner. The cleaner, it was contended, had not acted responsibly.
333Mr Campbell's submission was that the Club had not discharged its obligation (to operate the boom gate) and that such breach caused the plaintiff's injury: (T 329:35-40).
334In the plaintiff's written reply submissions dated 4 December 2012, it was argued that the Club knew or ought to have known, that the roadway (Riverside Drive) was extensively in use by cyclists from early morning each day. It was contended that the time, 5.00am, as an opening time, had originally been selected on the basis of police input. There was no evidence, it was submitted, that the Club had in fact considered or exercised the discretion permitted to it under its arrangement with the Council as to opening times.
335In the above circumstances, it was submitted that the proper inference to be drawn is that the boom gate would be open at 5.00am, absent any good reason for it to be otherwise: Plaintiff's Reply Submissions at [7].
336Reliance was also placed upon the evidence said to have established the difficulties that existed in determining the position of the boom gate (whether in the closed or open position) and the steps that could readily have been taken to have made the boom gate more visible.
337In relation to the knowledge of the Club of the use of Riverside Drive by cyclists each morning, it was submitted that the Club possessed knowledge of that fact through its employee, the cleaner. It was also submitted that given the level of cycle activity on a daily basis in the precincts of the Club, the conclusion could be drawn that the Club was well aware of the risk to cyclists if the Club did not exercise reasonable care in the operation of the boom gate, in particular opening the boom gate at an early hour each day.
338The contention made on behalf of the Club that the plaintiff was under an obligation to properly familiarise himself with the route that he was following was disputed in the plaintiff's reply submissions. The submission was that there is no basis for the contention that it was a matter for the plaintiff to detect unexpected hazards that may arise from the boom gate in its presentation on the day of the accident.
339The contention made on behalf of the Club as to the existence of available alternatives as exit points for cyclists was also disputed on the basis that there were no viable alternatives. In particular the spiked exit for motorists was said to be unsuitable for cyclists.
340In terms of the existence of a duty of care, the plaintiff's submission was that there was a proper basis for the conclusion that a duty of care arose in the Club in respect of the operation of the boom gate, in particular its opening at an early hour and that there was nothing novel about the case that would displace a duty existing in the Club.
341It was submitted that the Club was an "occupier" of the carpark and that it had used it as an adjunct to its business. In this respect it was contended that the Club exercised what was termed "occupational control" such as to make it an "occupier", which included its control over the opening and closing of the gate and arising from what was termed its "assumption of liability" of that task. All the factors identified in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [103] were said to be satisfied.
342On the issue of "foreseeability" it was argued that the Club in permitting an obstruction to remain across the roadway/cycleway, gave rise to a foreseeable risk of injury. The risk was said to have been a significant one. Further, the risk, it was argued, arose, not from a failure arising from a static state of affairs on premises, but stemmed from the positive act of the Club in creating the hazard by "blocking off the road".
343The contention was that steps ought to have been taken to remove the hazard by the Club by 5.00am. If that was not done, it was argued, the likelihood of harm could not be to have been considered a low one. A simple and clear instruction to the Club's cleaner, as to the opening time of the gate was required to offset that risk.
344Finally, it was submitted that ss 43 and 44 of the CLA had no application.