Simmons v Rockdale City Council

Introduction 1These proceedings were commenced by the plaintiff in relation to an accident that occurred at about 6.15am on 11 April 2007 whilst he was riding his bicycle through a carpark adjacent to the St George Sailing Club ("the Club"). On that occasion he struck a boom gate that had been closed across a motor vehicle entrance to the carpark. 2The plaintiff was very seriously injured. His injuries ultimately led to a below knee amputation of the left leg. 3The parties have by an Agreement on quantum filed on 29 May 2012 agreed upon the quantum of damages and interest in the amount of $1,160,000 subject to findings in relation to the liability of the defendants and any contributory negligence of the plaintiff.

The Proceedings 4The proceedings were initially commenced by Statement of Claim against Rockdale City Council ("the Council") filed on 6 February 2008. An Amended Statement of Claim was filed on 23 March 2011 whereby St George Sailing Club Ltd was joined as second defendant to the proceedings. 5On 27 September 2012 leave was granted to the plaintiff to file a Further Amended Statement of Claim (T 245). On 28 September 2012, having had difficulties in the Registry, the plaintiff handed up a signed copy of the Further Amended Statement of Claim (T 303). 6The defendants filed Defences and Amended Defences in response to the plaintiff's proceedings. Each denied liability. The Council also raised specific defences to which reference will be made later in this judgment.

Cross Claims 7A cross claim was filed by the Council against the Club in which relief was claimed by way of contribution and/or indemnity in respect of any judgment recovered by the plaintiff. 8On the same date, 11 August 2011, a second cross claim was filed on behalf of the Club in which contribution and/or indemnity was claimed from the Council in respect of any damages recovered by the plaintiff. 9There was no reference in the proceedings, and in particular no reference in the submissions of the parties, to either cross claim. 10I will refer to these cross claims later in this judgment.

The Evidence 11The evidence in the plaintiff's case consisted of written evidentiary statements and oral evidence by the following persons: (I) Mr Alex Simmons (the plaintiff): Statement dated 23 July 2008 (Court Book 32). (ii) Mr Daniel Smith: Statement dated 27 October 2007 (Court Book 42) (iii) Mr John Crouchley: Statement dated 29 August 2012 (Court Book 66) (iv) Mr Anthony Gerard Unicomb: Statement dated 14 September 2012 (Court Book 71). 12The Council relied upon witness statements numbered 11-26 in the Index to the Court Book. 13Copies of all witness statements and copies of reports of expert witnesses were included within the Court Book, Exhibit A. 14The following statements were tendered and admitted without the authors of the statement being required for cross-examination: Exhibit 1: Statement of Mr Ken Johnson dated 29 June 2010. Exhibit 2: Statement of William Leonard Aston dated 30 June 2010. Exhibit 3: Statement of Jan Patricia Foster dated 30 June 2010. Exhibit 4: Statement of Carol Deering dated 30 June 2010. Exhibit 5: Statement of Rita McNay dated 4 August 2010. Exhibit 6: Statement of Donald Colin Tinworth dated 19 October 2010. Exhibit 7: Statement of Michael Goodyer dated 19 October 2010. Exhibit 8: Statement of Hans Sarlemyn dated 19 October 2010. Exhibit 9: Affidavit of Shane Kavanagh dated 20 October 2010 (admitted as a statement). 15The plaintiff tendered a statement prepared on behalf of the first defendant, being the statement of Mr John Tsamboumiaris dated 10 September 2008 - Exhibit B. 16Mr Colin Mable and Mr Pintara Lay, the principal lay witnesses for the Council, (witness statements No. 25 and 26 in the Index to the Court Book) were cross-examined on their statements.

Expert Reports 17The following reports were tendered on behalf of the plaintiff: (i) The report of John Jamieson dated 13 February 2009 - Exhibit C (ii) The supplementary report of Mr Jamieson dated 12 October 2009 - Exhibit D. (iii) The report of Professor Wenderoth dated 22 March 2010 - Exhibit E. 18The Council tendered the following reports: (i) A report of a conclave of visual experts dated 24 July 2010 - Exhibit 10. (ii) The report of Professor Stephen Dain dated 26 May 2010 was tendered by the first defendant (admitted on a provisional basis) - Exhibit 11. (iii) The report from the conclave of traffic accident experts dated 24 August 2012 - Exhibit 12. (iv) The report of Alan Joy dated 29 July 2009 - Exhibit 13. (v) The supplementary report of Alan Joy dated 9 September 2010 - Exhibit 14. (vi) The report of Warwick Kiernan dated 12 October 2010 - Exhibit 15. 19Mr Jamieson and Mr Joy were both called to give concurrent evidence (T 171). 20Mr Jamieson is a consulting forensic engineer who practices under the name Jamieson Foley and Associates Pty Ltd. He was asked in 2007 to make a road safety audit on behalf of the defendant council. Following that audit he prepared a report dated 4 July 2007. A copy is behind Tab 31 of Exhibit A at 702. 21Extracts of his audit report dated 4 July 2007 are to be found at Appendix D to his report (13 February 2009), prepared for the present proceedings. 22On instructions from the plaintiff's solicitors, Mr Jamieson prepared a supplementary report dated 12 October 2009 (Exhibit A at 803). 23Mr Jamieson prepared a further report dated 1 November 2010 in response to a letter from the plaintiff's solicitors dated 25 October 2010 (Exhibit A at 881). 24Mr Alan Joy is a road safety and traffic engineering consultant. He carried on practice under the name of Joy Consulting Group. He was asked by the solicitors for the Council to prepare his first report dated 29 July 2009 (Exhibit 13). He subsequently prepared a further report dated 9 September 2010 (Exhibit 14). 25I attended at the site of the accident on 25 September 2012 for the purpose of undertaking a view/inspection of the area with the legal representatives of the parties: T 89-92.

The Plaintiff's Background and Cycling Details 26The plaintiff, Mr Simmons, was born on 26 July 1964. He was accordingly 43 years of age as at the date of the accident. He graduated from high school in 1981 and subsequently graduated from the Australian National University, ACT with a Bachelor of Science. Following graduation he took up a number of positions with the Commonwealth Government including Austrade and the Department of Industry. He later took up employment in the private sector and has worked as a business analyser with a communications company. 27Over many years before the accident, in particular since 1997, Mr Simmons had been a competitive cyclist. He described himself as a very keen cyclist. He said that he had participated in a number of cycling championships with success. These included:

• National Masters Track Championships;
• Bronze medal in National Track Championships Points Race;
• NSW Champion Teams Pursuit;
• Bronze medal Statement Criterium;
• Bronze medal in Teams Time Trial and
• Various medals in Teams Pursuit. 28Two weeks prior to the accident he had completed the National Masters Track Cycling Championships in Melbourne. He said that as well as a cycling participant he was also a professional cycling coach (T 47). He ran cycle safety sessions for new members of the Sydney Cycling Club of which he was a former president.

(a) Overview 29The accident site was located on Riverside Drive at Sandringham, adjacent to Cook Park and the Club. Riverside Drive is a local street which follows the shoreline of Georges River at the southern end of the Sandringham/Sans Souci peninsula. The club is situated on foreshore land to the south of Riverside Drive. 30On the day of the accident the plaintiff was on an early morning training ride. In the lead-up to the accident he was riding his bicycle in a generally eastbound direction along Riverside Drive. The final trafficable section of Riverside Drive extends past the front of the Club and the carpark. It was described by some of the witnesses in evidence as being, in effect, an extension of a cycle route. It ultimately connects to another road, Fraters Avenue. 31The carpark adjacent to the Club was enclosed by the Council by the construction of a boom gate and other structures in 2004 in order to restrict access following problems that had arisen of anti-social driver behaviour (referred to as "hooning") in the carpark at night.

(b) Location Detail 32The road network diagram and crash location is identified in Figure 1 in Mr Jamieson's report, 13 February 2009, Exhibit A at 668. The aerial photo of the site showing the crash location is depicted in Figure 3 to Mr Jamieson's report in Exhibit A at 670. A photograph of the Boom Gate is depicted in a number of photographs in evidence including Figures 5 and 6 of Mr Jamieson's report in Exhibit A at 672-673. 33As at 11 April 2007, Riverside Drive was a public road. It flows in a north-easterly direction from Taren Point Bridge and connects, as I have indicated, with Fraters Avenue, San Souci. Before the intersection at Fraters Avenue, Riverside Drive passes through the general area where the Club is positioned to the south with the carpark positioned to the north of it. 34A tubular steel gate (being the "boom gate" with which the plaintiff collided) is located at the intersection of Riverside Drive and Fraters Avenue. It consists of a horizontal cylindrical rail about 100 mm in diameter and about 7.5m long. The diagonal and two vertical struts are about 45 mm in diameter. 35The boom gate was painted white. It was hinged at a steel post on the eastern side of the intersection of Riverside Drive and Fraters Avenue and was capable of being locked to a steel post on the western side. It had a length of red and white self-adhesive reflective material on the horizontal cylindrical rail. A diagonal striped marker board was added after the accident. 36Riverside Drive to the south-west of the intersection with Fraters Avenue was a black bitumen road and was generally straight. It was designated one-way westbound for about 135m in front of the Club and the carpark. There were two traffic calming "speed bumps" located on both sides of the entrance to the Club. There were directional arrows painted on the roadway's surface. At its furthermost western section, Riverside Drive was two-way for approximately 35m. Riverside Drive joins what was described in evidence as a bicycle path or cycleway which runs down from the eastern side of the Taren Point Bridge. 37A pedestrian crossing over which the plaintiff passed extended across the road between the front entrance of the Club and the carpark. 38The distance from the boom gate, in its closed position, to the speed hump on the south-western side was about 35m. The distance from this speed hump to the pedestrian crossing was about 29m and the distance from this point to the second speed hump was a further 17m. 39The evidence established that there was daily regular usage by cyclists of the route or cycleway starting from the eastern side of Taren Point Bridge, from early in the morning. 40For a period up to the year 2004 neighbours complained of antisocial/reckless driving taking place at night in the carpark area. The Council, in consultation with the State Member for Rockdale, the St George Local Area Command, members of the public and the Club decided to modify the carpark so as to restrict vehicular access to and from the carpark at night as a means of dealing with such inappropriate use of the carpark. Those works included the installation of the boom gate by the Council in 2004. 41The Council and the Club communicated about an arrangement for the daily closing and opening of the boom gate. There was evidence (discussed below) that police had proposed daily opening of the boom gate at 5.00am. Ultimately, the Council agreed, as noted on plans and other documents, that the Club should have a discretion as to closing and opening hours. This aspect is considered in greater detail later in this judgment.

The Cycle Track: A Popular Route 42The above factual matters arise in the overall context of Riverside Drive having been used both before and after 2004 as part of a route used by the plaintiff and many other cyclists, many of whom, were referred to as "sporting" or "serious" cyclists, as a training route. The plaintiff was one such person. 43Mr John Crouchley, who was 69 years of age at the date of his statement, (23 August 2012), and who would be categorised as a "serious" cyclist, said in evidence that the route was often used by recreational cyclists. He had been a competitive cyclist and had been using the route for some 25 years several days a week. 44Mr Unicomb also gave evidence of his regular use of the route. He was 49 years of age at the date of his statement (14 September 2012), an Inspector of Police by occupation, and he had been involved in competitive racing at a very high level since the 1980s. In 1990 he attained Australian representation at the Auckland Commonwealth Games in the sport of triathlon. 45Mr Unicomb said that he had used the route, including the Riverside Drive extension of it, as part of a network of cycle routes on more than a thousand occasions. He said the route in his experience, had always been regularly used by cyclists. 46Mr Crouchley's evidence was that in his experience the boom gate had always been open and he in fact had only noticed the boom gate after the plaintiff's accident. He could not specifically say that he had noticed it before that time. I note at this point that this evidence is consistent with the evidence given by the plaintiff that since the gate had always been in the open position he had assumed it to have been a fence-like structure. The detail of his evidence in that respect will be discussed below. Mr Unicomb's evidence was that following the modifications to the carpark area in 2004, apart from a few occasions, referred to below, the boom gate, in his experience, had otherwise invariably been open. He said that in the course of his work duties as a police officer he had only seen it closed at night and in early morning hours of darkness. 47One of the training routes which the plaintiff habitually used led from his home in a southerly direction to Taren Point and then southwards over the Taren Point Bridge, turning around via Sylvania Waters, and returning back towards the City, in a northerly direction, over the Taren Point Bridge, following what was a dual cyclist/pedestrian way marked as such ("the dual cyclist/pedestrian footpath") on the eastern side of the Bridge. 48This dual cyclist/pedestrian footpath led off from the north-eastern edge of the Bridge in a clockwise arc downwards into the carpark area of the Club in Sandringham. There was a dual cyclist/pedestrian footpath that followed the water foreshore. This pathway permitted both bicycle and pedestrian traffic in both directions. There were markings to this effect on the footpath surface. 49The carpark roadway was wide enough to permit bicycle traffic in both directions as well as the passage of vehicles in a westerly direction through the carpark entrance. After passing through the entrance, motorists followed painted directional arrows on the carpark road surface to enter the carpark and proceed to park in marked car parking spaces: Report of Professor Wenderoth, 22 March 2010 in Exhibit A at 605. 50By reason of the fact that the Council relied in argument upon the directional arrows on the road surface proximate to the boom gate, it is necessary to say something at this point on that matter. Professor Wenderoth observed that the directional arrows were, in his opinion, for the purpose of directing the route of travel of motor vehicles which came through the carpark boom gate entrance into the carpark. They, in other words, he considered, operated as a guide for motorists entering the carpark and who wished to park in the designated car parking spaces. Professor Wenderoth observed that they did not serve the function of directing or advising cyclists as to the path that they should, or should not, take as they travelled along the carpark roadway: Report of Professor Wenderoth, 22 March 2010 in Exhibit A at 606. As discussed below, cyclists regularly rode out to Fraters Avenue through the boom gate entrance, Riverside Drive itself leading in the direction to that entrance way.

The Boom Gate - Use by Cyclists 51The grounds upon which the Council relied in defence of the plaintiff's proceedings, need to be considered against the background of the daily use of Riverside Drive, before the carpark modifications were made in 2004 as well as after they were completed, in particular, in the period 2004 to 2007. 52The uncontradicted evidence is that Riverside Drive for many years formed or was used by cyclists as a de facto extension of what was a popular cycle route in use on weekdays and on weekends. That route included the Captain Cook Bridge and the pathway which led down from it towards Cook Park and past the Club into the area where the plaintiff's accident occurred. 53Prior to the construction of the boom gate exit in 2004, cyclists regularly exited the cycle route onto Fraters Avenue by riding through the point at which the boom gate was later erected, being the same area through which the plaintiff was intending to proceed on the day of his accident. This had, on the evidence, become the natural flow-on exit point to Fraters Avenue. 54The evidence established that following the carpark modifications in 2004, it remained the practice for cyclists to continue to use the boom gate entrance area as an exit way to reach Fraters Avenue as they had before the modifications, even though "No Exit" signs were erected near the boom gate. In other words, the usage or practice as described by Mr Crouchley and Mr Unicomb remained unaltered. This was also confirmed by the plaintiff's evidence. The evidence indicated that this practice was well-known to the Council. 55The Council's expert, Mr Kiernan, observed in his report dated 12 October 2010 (Exhibit A at 864): "The cycleway painted markings on the access road since the incident direct cyclists to the right and along the Riverside Drive cycle path. This is a directional improvement for cyclists intending to travel along the cycle path and not along Fraters Avenue. When the gate was closed, this was the travel path, at speed, by most cyclists observed at the site inspection. However, when the gate was open, these markings were not observed by the cyclists who travelled through the gate and onto Fraters Ave. This was the intention of the plaintiff. Therefore, lack of cycleway pavement markings, are not relevant to this incident." 56On the evidence, the reasons for the continued practice after 2004 of cyclists riding through the boom gate area were: (1) The passage through it was, as before 2004, the natural flow-on path of the cycle route leading to Fraters Avenue. (2) Few vehicles entered the carpark through the boom gate entry at early hours of the morning (eg, before 6.00am-6.15am). (3) There were no other convenient or practical exit points for cyclists wishing to leave Riverside Drive and access Fraters Avenue for a combination of reasons including: (i) The one-way spiked exit access for motor vehicles leaving the carpark installed in 2004 was not suitable for cyclists (as discussed further below). (ii) The foreshore recreation route was a shared pathway and cycleway for pedestrians and cyclists. For reasons explained in evidence, there was a risk to pedestrians and other users, from "serious" or competitive cyclists using it. (iii) Many cyclists did not wish to travel on the shared pathway along the foreshore as that would not take them in the direction they wished to take along Fraters Avenue. (4) On the evidence, the "No Exit" signs were intended for, or were directed at, motorists who were required to use the other exit (the one-way spiked exit) constructed in 2004. 57On the evidence, Council officers had knowledge of and understood the reasons for cycle-traffic proceeding through the boom gate onto Fraters Avenue. Mr Mable, the Council's Executive Engineer who has been with the Council since 1976 and who is also a cyclist, said that he himself had cycled passed the boom gate to reach Fraters Avenue. 58As discussed below, Mr Daniel Smith, another sporting cyclist, had a similar accident to the plaintiff some months before (at about 6.00am on 23 February 2007) when he collided with the boom gate that had been left in the closed position. That accident and its aftermath assume some significance in the present proceedings. 59The Council in its defence to the present proceedings relied upon the two "No Exit" signs and put to the plaintiff that he had contravened the signs on the day of his accident by attempting to cycle through the boom gate entranceway. However, Council staff who inquired into Mr Smith's accident did not suggest that he had been cycling in a way that amounted to a contravention of the "No Exit" signs by doing so, this as noted above, having been a common route followed by cyclists. Nor did contemporaneous Council records concerning the plaintiff's accident suggest any such contravention by him. 60Mr Mable did not give evidence that he or other cyclists who cycled through the area of the boom gate had acted in any way considered to be contrary to the sign. 61After Mr Smith's collision on 23 January 2007, the Council responded to correspondence from Mr Smith to Council in which he reported his accident. Following investigation, the Council denied any liability stating that although the accident was regrettable, "we believe that a combination of your speed and the conditions of breaking daylight caused your injuries..." (Council letter 23 March 2007, Exhibit A at 65). 62Similarly, Mr Pintara Lay, the Council's Traffic and Road Safety Co-ordinator, in his detailed statement in the proceedings made no criticism or observation of the plaintiff (or Mr Smith) for having acted in accordance with the practice of cyclists' riding through the boom gate access point as a means of reaching Fraters Avenue. 63Finally, on this aspect, there was no evidence led as to any perceived risk to early morning cyclists using the boom gate point over the years from motor vehicles entering the carpark through the boom gate access. The apparent absence of any early morning accidents involving motor vehicles and cycles at the boom gate access may well have been due to the fact that there was not likely to have been many vehicles entering the carpark area at early morning hours.

Were Alternative Exit Routes Available? 64The Council's case as presented in the course of the hearing, sought to establish the proposition or contention that instead of using the boom gate as an exit it would have been open to the plaintiff to have chosen an alternative exit route. One suggested alternative was said to have been the shared cyclist/pedestrian footpath located along the foreshore that followed the waterway. Had the plaintiff used it instead of going through the boom gate point, so the argument ran, he would not have been confronted with the closed boom gate. The fact that it was closed when in accordance with practice if should have been open (discussed below) would then become irrelevant. 65The evidence established that there were perceived risks should sporting or competitive cyclists use the shared pathway with pedestrian traffic, including joggers, children and persons of all ages, sometimes walking their dogs. See: Report of Professor Wenderoth Exhibit A at 608 [18]. 66Mr Crouchley's evidence was that he has been a "serious" or sporting cyclist for many years. He said he had never used the shared pathway. He considered it would be dangerous if used for cycling because of the risk of accident with other users. 67The plaintiff said that he had not cycled on the shared foreshore pedestrian/cycle pathway. He said in cross-examination that he was not aware that it was in fact used as a cycleway and that, "... in general you don't ride, as a training cyclist on cycleways, they're not suitable": T 41. 68Mr Mable's evidence explained the reason for the boom gate access having been the frequently used exit point over the foreshore/recreation shared pathway. "Q. And through that gate area? A. I have observed people going through that gate, yes. Q. Many? A. I have seen some, yes. Q. Have you gone through that yourself? A. I possibly have. Q. Possibly, you would remember whether you have or not? A. Yes, I have. Q. Why did you hesitate and say 'possibly have'? A. Oh-- Q. Because it was certainly a preferred way through the car park, wasn't it? A. The reason why is because there is two cycleways through that area. There is - one is a recreational cycleway which goes along the foreshore, and there's another one, an on road cycleway. Q. And the foreshore is not very practicable for people who are more serious cyclists? A. That's correct." (T 148:4-26) 69The other suggested alternative put forward by the Council was that cyclists could have used the "one-way spikes" exit that had been constructed in 2004 for use by motor vehicles exiting the car park. Mr Unicomb, however, said that in his experience as a cyclist a "one-way road spikes exit" was unsuitable for use by cyclists. 70Mr Joy (the Council's expert witness) made observations upon the suitability or otherwise of shared cycle/pedestrian pathways. In his report dated 29 July 2009 he commented on the suitability or otherwise of shared pedestrian/cycle pathways for both "the lower speed rider groups" and the "sporting riders". In 9.22 of his report he observed: "The corrective treatments to the cycle route recommended and subsequently implemented at St George Sailing Club were entirely appropriate and beneficial to cyclists using/intending to use the shared path, ie, cyclists in the lower speed rider groups. ... Given Mr Simmons was a sporting rider and was not intending to use the shared path but was intending to proceed along the roadway portion of Riverside Drive, the corrective treatments proposed to the location were of no relevance to his route or to the incident in which he was involved. ...." (Exhibit A at 790-1) 71In relation to the feasibility of cyclists using the one-way spiked exit as an alternative, Mr Mable, the Executive Engineer with the Council, agreed that it was a "tight fit" for cyclists to go around the one-way spikes placed at that exit. It was, he indicated, for that reason that, subsequent to the plaintiff's accident, a pathway was later constructed to encourage cyclists to divert and use the foreshore cycleway. (Mr Mable's evidence will be further considered below.) An exit from it, subsequently put in place, permits cyclists to exit onto the roadway at a point about 80 metres along the pathway. It was constructed after the plaintiff's accident. That was intended as a means of enabling cyclists to leave the foreshore pathway and access the roadway. 72Mr Unicomb gave evidence as follows. He stated: "A car park exit was installed on Fraters Avenue with 'one way' road spikes allowing motor vehicles to exit the car park but not enter. This arrangement was a large steel box with metal spikes that protruded. Clearly this was most unsuitable to be utilised as an exit point for persons on bicycles and I continued to use the exit point onto Riverside Drive I had always used." (Exhibit A at 72) 73It may be inferred from Mr Joy's report that Council's documentation reviewed by him (Report, Exhibit A at 783 [5]) did not contain any material suggesting that cyclists generally, or the plaintiff in particular, in fact had available viable alternative exits to the boom gate. In particular they did not suggest that he should have used either the shared pedestrian/cycle pathway or the spiked exit leaving the carpark. Although Mr Joy was retained by the Council to examine, inter alia, "traffic engineering factors relevant to the incident" (para 6.5) he made no comment nor expressed any opinion in his primary report nor in his supplementary report dated 9 September 2010 upon the suggestions as to alternatives put to the plaintiff during the hearing. 74The Council's other traffic engineering expert, Mr Warwick Keirnan, did not suggest that such alternatives were appropriate or practical alternative exits. His report is dated 12 October 2010 (Exhibit A at 847-880). 75Finally, there was no discussion or reference in any of the Council's records tendered in evidence that indicated that Council ever considered that the suggested "alternatives" were practical or viable exit points for sporting cyclists or that the plaintiff should have chosen an exit point other than the boom gate area.

The Plaintiff's Accident 76On the day of his accident the plaintiff left home at approximately 5.30am. On that basis, as at the time of the accident, (approximately 6.15am), he estimated that he had been riding for approximately three-quarters of an hour of what was intended to have been a two-hour ride. 77The plaintiff, as earlier noted, rode north across the eastern footway of Captain Cook Bridge and down the concrete cycle path from the northern end of the bridge then proceeded in an easterly direction along the bitumen path to join the end of Riverside Drive. He was riding on his own. He was wearing a helmet. He was not wearing sunglasses or any other form of glasses. The cycle route coming down from the bridge towards Riverside Drive is depicted in photographs in Exhibit A at 68-69. 78He then rode along Riverside Drive in front of the Club in a direction which was opposite to the directional arrows painted on the pavement. He proceeded across two speed bumps before colliding with the boom gate. Normally, the plaintiff said, after checking ahead to ensure there was no traffic on Fraters Avenue he would ride out of the gateway and continue east along the roadway. He said there was usually less traffic in that direction. 79In his written statement, the plaintiff said he would have ridden the route followed on the day of his accident literally hundreds of times over the previous decade, being one, he said, "that is constantly used by cyclists". 80He said on his early morning rides he had regularly seen other cyclists travelling along the same path and through the same gateway access where the accident occurred. He had frequently seen cyclists travelling through the carpark/Riverside Drive in both directions. He said that his prior experience of cycling in this area had been with both groups of cyclists and on his own. 81He said his regular training route was between 50 and 88 kilometres. He maintained a training diary and recorded his times on a computer by way of a training log. He, however, did not set times to complete his route. 82On the day of the accident, at about 6.15am, having ridden over the Taren Point Bridge he entered the carpark "as normal". As he approached the gateway he checked ahead, left and right for traffic on Fraters Avenue and Riverside Drive. There was no traffic: "... suddenly, out of nowhere a boom gate closed across the entrance to the carpark appeared in front of me. I only had a fraction of a second to spare and I couldn't avoid hitting it. I hit it at speed. There was no time for braking or any avoidance manoeuvres. My left leg below the knee, took the full force of the impact": at [15] of the Plaintiff's Statement, 11 June 2008 in Exhibit A at 34. 83The plaintiff went on to state: "16 I would describe the boom gate as a single steel horizontal beam about 4 inches in diameter, hinged at one end, latched at the other side of the road, white in colour with no warning signs. 17 I had not on any previous occasions when I rode this route encountered the boom gate being closed. 18 At the time of the accident there were no warning signs in the vicinity of the boom gate." 84He confirmed that, so far as he could recall he had not previously noticed the boom gate. He said that his recollection was that there had been more shrubbery in the area of the boom gate at the time of the accident and "[I] just peripherally assumed there was a fence along the side of the roadway": (T 43). He said there was a lot of the shrubbery in question shown in the photograph on p 233 of Exhibit A which appeared to him to have been cut back from the gate (T 48). He confirmed that he never used the exit that had the road spikes. 85Subsequent to the accident, the plaintiff returned to the carpark. He noticed changes had been made "which made it obvious for cyclists, who travel in a different direction": (T 43). Additionally, at a point he estimated to be about 30 metres along from the boom gate, a new access to the roadway had been built since the accident (T 44). That new access meant that cyclists, following the new or modified approach to the foreshore pedestrian/cycle pathway could exit onto the roadway some 30 metres away. 86The plaintiff said that he could not specifically recall "No Exit" signs at the gateway. However, he said that whether one was there or not, he was "following the cycle route that thousands of other cyclists do": (T 49). He said that it was possible that he had seen such a sign at some time but "assumed that meant for the motor vehicles": (T 49). Cyclists, he repeated, went through the boom gate access point. 87He estimated that he was travelling approximately 30 kilometres per hour after he left the bridge and came down the hill (T 50). He thought he was travelling the same speed at the point of his accident (T 51), although he said one normally slowed down approaching the intersection to check for traffic. There was a need, he said, to slow his cycle to ride over the speed humps. 88The plaintiff's attention was drawn to the directional arrows on the roadway as shown in the photograph in Exhibit A at 233. He said that he did not consider that they applied to cyclists such as himself "because that's precisely the point at which the cycle path directs your entry into that street" (T 54). 89The plaintiff said that the boom gate was not obvious. He explained that as a cyclist proceeds in the direction of the Club, he/she sees a number of white horizontal lines, two of which are speed humps and another white horizontal line (a reference to the boom gate) which so far as he was aware "was just a fence along the side of the road" (T 58). 90He said that following the accident he observed that when the boom gate was in the closed position it appeared to be in exactly the same position, on approach, as it did when it was in the open position (T 58). 91In cross-examination it was put to him that the gate would have been obvious to him had he been maintaining a proper lookout, it being in front of his path. The plaintiff responded that it was not obvious. He denied that the collision occurred by reason of a failure on his part to keep a proper lookout. 92In cross-examination he was asked: Q. Tell me how could you have been keeping a proper look out and not even have enough time to hit the brakes before you struck the gate? A. First and foremost, I was unaware that there was a gate to look out for, so my expectation of a potential obstruction was nil, other than what I would normally expect on a piece of roadway, and that is other cars or users of the road." (T 59) 93He said that he was a very experienced cyclist and was well aware of his surroundings but he did not see the boom gate. All that he saw was a horizontal white line which he did not recognise was a closed obstruction across the road. As far as he knew it was an open gate (T 60). He repeated that from the viewpoint of an approaching cyclist it looked exactly the same closed as when it was open (T 61). 94Accordingly, although it was not something that he was actually looking for, he said that as a cyclist he was constantly scanning the road ahead looking for what might be traffic obstructions. 95The plaintiff said the time at which he realised there was an obstruction was about the time he was going to hit it - the very last second and he had insufficient time to take any form of avoidance measure (T 61). 96The plaintiff said he was aware that in the period between 2004 and 2007 of the fact that changes to the carpark area had been made to the Riverside Drive area (T 63-64). He recalled that at some stage he came to realise that spikes had been placed on the roadway (T 64). He said that he had never considered using the spiked exit as an alternative - it did not make any sense for him to do so (T 65). He said that he did not know that the exit with the road spikes was available to be used as a cycle exit. The cycle pathway did not lead to that particular exit but continued on a straight line through to the street (T 68). 97He agreed that there was an inherent risk in approaching on "the wrong way" of a street where there was an intersection with vehicles potentially turning (T 66) but rejected the proposition that he was travelling "the wrong way" towards the intersection, or that he did not have a clear view of oncoming vehicles (T 67). 98He said that the route that he followed on the day of his accident had been safe and adequate on the hundreds of occasions that he had been through it. He did not see anything up to the point of the accident that would suggest that he needed to find an alternative (T 69). 99He acknowledged that he knew of the boom gate as a structure or object after it had been constructed in 2004, but "as a cyclist looking for safe egress, you are looking for obstructions across the road. There was no obstruction across the road" (T 70) - referring to his prior experience. 100He said that if he knew that there was a gate obstructing the roadway he would have investigated alternate routes (T 71). 101Following the accident a neighbour, Mr Donald Tinworth, said that he and his wife attended to the injured plaintiff. Mr Tinworth said "on the matter, the gate is normally opened by the Club's cleaner, who did arrive while the ambulance was treating Alex": Statement, Exhibit A at 159.

Three Cycle Accidents 102On the evidence, there have been at least three known incidents occurring when the boom gate had been left, early in the morning, in the closed position involving cycle accidents being those involving Mr Smith, Mr Unicomb and the plaintiff. 103The factual matters concerning each of the three accidents are summarised below: (1) Mr Unicomb's Collision: 2006 (i) Mr Unicomb had used the cycle route, including Riverside Drive, on a high-frequency basis over many years. (ii) He was an early morning cyclist with cycling experience at competitive levels. (iii) He had previously encountered the boom gate on a few occasions causing him to "lock-up" the brakes of his cycle. 104Mr Unicomb said that on one occasion in approximately 2006, after sunrise, unknown to him, the boom gate had been left in the closed position. On his approach he did not see it in time to prevent a collision at a slow speed. He spoke to a person who was in attendance who said he was a cleaner from the Club. The cleaner then proceeded to open the boom gate. Mr Unicomb's evidence was that the gate was not apparent until one was on top of it. This, he considered, was due to the oblique angle or position of the boom gate which made assessing its actual location difficult. 105Mr Unicomb's evidence was that at some point soon after the plaintiff's accident (he arrived on the scene of the plaintiff's accident shortly after the plaintiff's collision) he noted changes to the roadway. These were hand painted markings and arrows with "cyclists this way" painted on the roadway: see photographs in Exhibit A at 236-7. (2) Mr Smith's Collision: 23 January 2007 (i) Mr Daniel Smith, a fire brigade officer, had a routine cycle route which encompassed Riverside Drive and he also used it on a high-frequency basis. (ii) He was an early morning cyclist. He had been a competitive cyclist in both the United Kingdom and in Australia. (iii) He had frequently ridden the footpath/cycleway leading onto the Riverside Drive segment past Cook Park and the Club (he said at least several times a week). (iv) The boom gate, according to his recollection, had never been closed. However, on Tuesday, 23 January 2007, at approximately 6.00am, he rode across the speed humps and the pedestrian crossing. When a metre or two from the boom gate (which was in the closed position), he suddenly realised what it was and collided with its top bar with some force. The impact threw him over the barrier. He received injury to his leg as a result. His father notified Council of the accident on 24 January 2007. Mr Daniel Smith himself also subsequently emailed the Council regarding the accident. (v) Mr Smith estimated that his speed, when he hit the boom gate, was between 25-30 km/h. That was similar to the plaintiff's estimated speed at the point of his collision. He maintained that he was keeping a proper look out "... you just couldn't see it nor expect it to be there in the sense that it was closed": Statement dated 27 October 2007, Exhibit A at 45 [30]. 106Mr Lay, a Council officer, said that, after Mr Smith's accident he was informed by Mr Mable, Executive Engineer at the Council, that a cyclist had ridden into the boom gate across the entrance to the carpark. 107He could not remember when it was that he was informed of Mr Smith's incident. However he recalled subsequently going down to the site of the accident. 108Mr Lay said that: "I believe from looking at the gate that it was alright and nothing needed to be done ...": Statement, Exhibit A at 327 [46]. 109He added: "I did not think anything needed to be done to the gate and although I now cannot remember the words that I said to Colin, I told him what my views were ...": Statement, Exhibit A at 327 [47]. 110The adequacy or otherwise of the inspection carried out by Mr Mable and Mr Lay after Mr Smith's accident is discussed below.

(3) The Plaintiff's Collision: 11 April 2007 111The evidence given by the plaintiff as to the circumstances of his collision have been summarised above. The following additional matters are noted: (i) The plaintiff's level of competitive cycling experience was (at least) comparable to that of Mr Unicomb and Mr Smith. (ii) He was cycling towards the boom gate on 11 April 2007 at a similar time of day to Mr Unicomb and Mr Smith and at approximately a similar speed when their collisions with the boom gate occurred. (iii) He, Mr Smith and Mr Unicomb, all stated that they were maintaining a lookout ahead, prior to their respective collisions.

(a) Mr Pintara Lay 112The Council called Mr Pintara Lay, Traffic and Road Safety Co-ordinator with the Council in evidence. He gave evidence, firstly, in relation to the redesign and reconstruction of the carpark in 2004 and, secondly, in relation to the investigations into Mr Smith's cycle accident. A copy of Mr Lay's witness statement is behind Tab 26 of Exhibit A at 319-334. 113Mr Lay had been employed with the Council since 22 April 2002. He gave evidence of the particular events leading up to boom gate construction in 2004 and of other changes to the carpark. 114In 2002 he was asked to consult with police in developing installations with a view to preventing anti-social behaviour by "the hoons". 115Exhibit Pl-1 included photographs of the carpark before any work was undertaken in 2004.

Proposals and Arrangements for Opening and Closing the Boom Gate 116On 25 March 2004, Mr Keith Langelaar, General Manager of the Club, wrote to Mr Lay stating, inter alia: "I had been instructed by the Board of Directors of St George Sailing Club to ask you if you could provide them with the reasons why Rockdale City Council are unable to complete the closure of the St George Sailing Club Car Park, as we are the only resident in Riverside Drive and it would be secured by Management of the Club at the close of trade each night." (Exhibit A at 356) 117Mr Lay wrote a letter dated 28 April 2004 to the Club entitled "St George Sailing Club Car Park - Gate against the hoons". Two options (being plans for the redesign of the carpark) were set out. Option 1 is to be found in Exhibit A at 359. This option was ultimately adopted for design/construction purposes. It had an arrow placed on the diagram pointing to the proposed boom gate. It also contained the following entry on the Option diagram "proposed entrance gate (closed 11.00pm til 5.00am) & at discretion of St George Sailing Club". 118Mr Lay said that the reference to "and at the discretion of the St George Sailing Club" referred to the circumstances where the Club may have a late closing, that is later than 11.00 pm, but may also wish to have an earlier closing because of lack of business (T 115). "Q. You were not speaking of any discretion with respect to the time of opening in the morning, were you? A. We were, together with the community, with the club, and the discretion time - I mean, that discretion of St George Sailing Club was dealing mainly with the opening and - closing and opening of the gates" (T 115). 119Mr Lay said that, from discussions, he understood that the Club trading hours were variable and that if the Club closed earlier then it would be open to it to lock the gate earlier. Similarly if, for example, there was a reception that went until 1.00am in the morning then they could close the carpark at 1.00am. Mr Lay agreed (T 115). 120It was further put to Mr Lay: "Q. But there was no flexibility about the morning opening time, was there, that was discussed or intended? A. The opening of the gates depends on the club as well. Sometimes they can come early to open the gate in order to do maintenance before the club opened again the following day, so there's no firm commitment of the time. Q. But, you see, the effect of the discussion you'd had with Sergent Cooper at the police was that the gate, for traffic reasons, should be opened at about 5.00am, wasn't it? A. No. The police wanted the traffic to be controlled at the carpark. That's the main reason. The operation hours of the gate - the council decided to leave it to the club. Q. But the police wanted the road to be accessible to traffic by 5.00am, didn't they? A. No. Q. Well why did you put '5.00am' on the form then? A. You had to pick a time. Q. But I thought you told us you'd had picked a time as a result of the discussions you had with police? A. Yes. Sometime in the discussions with the police, the police might say 'look, I want 6 o'clock or 7 o'clock. You just nominate a time to the club, and the club' - council resolved to leave the operation, opening of the gate and closing of the gate, to the club." (T 115-116). 121Mr Langelaar had told Mr Lay that he wanted him to restrict access after club trading hours by means of a gate. This appears to be the origin of the idea for the boom gate. 122Mr Lay discussed this aspect with his manager of the Council, Mr Bill Woodcock. Mr Woodcock told him to install the gate across the carpark entrance. In particular, he told him to use the same type of gate that Council had installed in other locations within the Rockdale City area. As discussed below, the opening of these gates each day is undertaken on a daily basis on behalf of the Council by paid contractors retained by the Council. 123On the plans for the modifications appeared a note in the following terms: "proposed entrance gate (closed 11.00pm till 5.00am) and at the Discretion of St George Sailing Club". Mr Lay said that he had a conversation with Mr Langelaar who informed him that the gate could not be closed before 11.00pm because some functions in the Club lasted until at least that time. It is of some significance that this note was based on what Mr Langelaar had told him who it appears was at that time focussing upon the need for flexibility having regard to variability in the Club's closing hours. 124The provision made, conferring a "discretion" in the Club, is a matter of some significance. It effectively provided the Club with the scope and opportunity of determining for itself the opening as well as the closing hours for the boom gate. In this regard it lacked the strictures of a regime that required specificity and certainty for the daily opening of the gate. 125I have referred to Mr Lay's evidence on this aspect at [120] above. In cross-examination, Mr Lay had initially said that Sergeant Cooper was the person who had suggested a 5.00am opening. Later he sought, rather unconvincingly, to retract that evidence. 126Mr Lay said that he had had discussions with police from time to time about the design of the carpark modification. Following one particular discussion he decided that it was necessary to put on the proposal "Closed 11.00 pm till 5.00 am": (T 114). It was then put to him: "Q. You've put that on there because of what the police had said to you; is that right? A. Yes. Q. Do you remember who it was at the police that you spoke with? A. Traffic sergeant Gary Cooper". 127Mr Lay said that in the design of the modifications of the carpark he was required to liaise with the Club, as it was "... an important interest to be considered ...": Statement, Exhibit A at 325 [40]. He said he had several discussions with Mr Langelaar about the project. Plainly the Club's requirements and its representation about such requirements formed a central consideration in the discussions with the Council. 128Mr Lay's statement of 22 October 2010 (Exhibit A at 319-344) attached a volume of material which included documents that came into existence in the 2003-2004 period concerning the design and reconstruction of the carpark area, and in particular, the boom gate construction. 129Mr Lay's letter dated 28 April 2004 to Mr Langelaar of the Club seeking a commitment from the Club stated: "I would like to know of your commitments toward the manning of the gate and your views of the overall schemes. May I please have your reply as soon as possible." (Exhibit A at 357). 130In a letter of 11 May 2004, Mr Langelaar stated that the Club's Board members would like the Council to proceed with Option 1: (Exhibit A at 363). However, nothing was said by way of response to Mr Lay's request that he be advised as to Club's "commitments" to manning the gate or the arrangements for opening and closing the boom gate referred to as Option 1. 131Council records tendered in evidence noted that the application for the carpark modification related to "install traffic measure to combat the anti-social behaviour and reckless driving manners of some drivers ...". It referred to a "Council Resolution to the effect that approval be given to the proposed traffic measures at the Club as shown in Attached Document A". A number of dot points thereafter followed, including: "Proposed Gate at the Entrance driveway (Closed 11.00pm until 5.00am) and at the discretion of St George Sailing Club." 132Mr Lay said that the plan to which reference was made was "a conceptual plan", it not having been formalised or signed off by his supervisor (T 113). 133At the time that the Council dealt with the Club, Mr Lay confirmed that the material consideration at that time was the need to exclude the "hoons" from the carpark at night. 134It was later submitted for the plaintiff that Mr Lay's evidence made it clear that the past and prospective use of the road surface (Riverside Drive) by cyclists as a cycleway had not been considered: T 119-120. 135Ultimately, the Council proceeded upon the basis that the daily control of the boom gate would be left in the hands of the Club on the basis that the Club had flexibility ("at the discretion of St George Sailing Club") on the opening and closing of the gate. The resolution of the Council to erect the boom gate was made on 12 May 2004. It included the proposal that the boom gate be "closed 11.00pm until 5.00am and at the discretion of St George Sailing Club" (Exhibit A at 364). 136A document, a "Report of Background" in Exhibit A at 366 noted: "The management of St George Sailing Club consents with this proposal. Their security guard will man the gate." 137As events turned out, no "security guard" manned the gate. The boom gate was opened and closed by the Club's cleaner. 138On 28 June 2004, Mr Lay again wrote to Mr Langelaar setting out a number of details including the Traffic Committee recommendation and Council Resolution made on either 26 May and/or 23 June 2004. The letter concluded: "I have enclosed a letter that I would like you or your Club's relevant Officer to sign confirming that you/your club agree to operate and man the gate in the car park in front of the St George Sailing Club. The gate shall be closed at 10.00pm and opened at 5.00am or at the discretion of St George Sailing Club at no cost to Council." 139The draft letter enclosed a proposed statement from the Club entitled "Confirmation of St George Sailing Club": "We ... would like to agree and undertake to operate the gate and close it in the car park in front of the St George Sailing Club at 10.00pm and open at 5.00am every day. The times can be changed at your discretion." (Exhibit A at 372) 140On the evidence it appears that Mr Lay did not receive any written response from the Club to his letter seeking confirmation of the arrangements. This accordingly was the second occasion on which there was a failure by the Club to respond to a request that had been made by Mr Lay (see above re letter 28 April 2004). 141In cross-examination it was put to Mr Lay: "Q. Wherever it had its origin, the purpose of you writing what you wrote in April of 2004 was to get from the club a responsible commitment with respect to the opening and closing of the gates if they were to be put in; correct? A. Yes." (T 112) 142Mr Lay's attention was drawn to a memorandum entitled, "Sailing Club Car Park, Fraters Avenue, Sans Souci" dated 9 February 2004 written by Mr Richard Jarvis, then Manager of Transport Planning, with the defendant Council. A copy of the memorandum is in Exhibit A at 351. In it, Mr Jarvis addressed arrangements for opening and closing the carpark. The memorandum recorded: "The situation is less than satisfactory for the residents. All they want is the carpark closed after Club hours. We already have a routine operation to close and open the numerous beachfront carpark gates. I believe we should extend the task to this carpark, with arrangements for the Club to also operate the chain locking when necessary." 143Mr Lay said that as at February 2004, the Council conducted a routine operation for the carparks within the municipality. He said that it had about 20 carparks near the waterfront with gates. Private security personnel were charged with closing and opening the gates in relation to them (T 109). 144Mr Lay explained that the "security personnel" were contractors to the Council. The Council officer responsible for the work of the contractors was his manager, Mr Bill Woodcock, who was later replaced by Mr Jeremy Morgan. Mr Lay made the point that the other carparks in the Council area to which he referred did not have a club attached as was the case with Cook Park. 145On the evidence, the proposal by Mr Jarvis to engage the Council's private security personnel to open and close the gate (or it appears as originally envisaged unlocking a chain), was not examined as a means of ensuring that the boom gate was opened each day at 5.00am or at least by 6.00am. The consequence of the failure to adopt Mr Jarvis' proposal is discussed below. 146In relation to the arrangements between the Council and the Club for the daily opening and closing of the boom gate, the evidence establishes and I so find the following: (1) No formal or express contractual relationship was entered into between the Council and the Club for the manning and operation of the boom gate. No obligation was placed upon the Club to ensure that it would be opened at a specified hour. The Club had conferred upon it a discretion in the terms extracted above. (2) There was no formal resolution by Council or instrument of delegation by the Council delegating or imposing specific responsibilities in respect of the operation of the boom gate on the Club or on any other body or person. (3) The arrangement between the Council and the Club was a loose or informal one. (4) The Club at all relevant times assumed the task of operating the boom gate, that is, to close it of a night and open it in the morning with a discretion in it in that regard. The arrangement plainly was one that suited the Club as it conducted functions and the like at its premises at night with variable closing hours. (5) There is Council documentation that initially spoke of a proposal for the opening and closing of the boom gate at 11.00pm and opening at 5.00am. It is likely that the proposal for a 5.00am opening time was put forward by police. No other person was identified as having specified 5.00am. However, that proposal was subsequently made subject to the provision "... and at discretion of St George Sailing Club". Council agreed to it at the request of the Club. (6) The Club therefore subsequently allocated the closing and opening of the boom gate by one of its employees, the cleaner. (7) The evidence does not establish that the Council had considered how the modifications to the carpark area may impact upon cyclists. No proposal for redirecting cycle traffic or other precautions as were later adopted in 2007 were considered. (8) There does not appear to have been any consideration by the Council as to what would occur should the Club's cleaner be unavailable to open the boom gate. 147At all relevant times the Council was the local government authority with legal authority and control over Riverside Drive including the new boom gate. Given the high frequency of early morning cyclist use of Riverside Drive, there was a need for a system that would ensure that the boom gate was placed in the open position in a timely manner. There was no evidence that prevented the fixing of 5.00am as proposed by police (or between 5.00am and 6.00am) as the time at which opening of the gate was to occur. The need for flexibility for the Club related to closing the gate after its night functions. 148The "arrangement" between the defendant Council and the Club for the opening and closing of the boom gate ultimately was dependent upon the Club's cleaner being available to open the boom gate each day. In the absence of a secure alternative system the "arrangement" was likely to fail whenever the Club's cleaner did not attend on time, which was the circumstance that arose in respect of the three accidents to which reference has been made above.

The Council's Inquiry into Mr Smith's Accident 149Mr Lay gave evidence on the subject of the Council's inquiry into Mr Smith's accident. He said that he did not talk to Mr Smith about the accident. He was unaware of him having suffered injury in the collision (T 122:12-15). 150He said he went with Mr Mable in 2007 soon after the accident to the site of the accident. The boom gate, however, was not in the closed position during his observations of it (T 122:35-45). He did not make any entries in Council records about his inspection or examination (T 22:4-T 23:4). He did not make his evidentiary statement in the present proceedings until 22 October 2010. 151Mr Lay said that he did not discuss Mr Smith's accident with anyone at the Club before or after his inspection with Mr Mable (T 123:15-17). 152The only information that he had been provided with was that Mr Smith's accident involved a collision between a cyclist and the boom gate (T 123:25-27). 153In his statement, Exhibit A at 326, Mr Lay stated that he and Mr Mable would usually walk together twice a week during lunchtime to do inspections. On the occasion of the inquiry into Mr Smith's accident, he said that they drove to Riverside Drive to carry out an inspection. He stated: "46 I remember when we got there, both Colin and I looked at the gate. I cannot now remember exactly what Colin and I said to each other. I believed from looking at the gate that it was alright and nothing needed to be done. I remember seeing that there were two signs saying 'no exit', the chain hung on the gate and its shadow as a 3 dimensional piece of object. I knew that there were many gates like that in the Council area and it was painted white. 47 I did not think anything needed to be done to the gate although I now cannot remember the words that I said to Colin, I told him what my views were ..."

(b) Mr Colin Mable 154Mr Mable commenced employment with the Council in July 1976. As earlier noted, he is employed as an Executive Engineer and is part of the project management and design department of the Council. 155He was not aware of the precise details of the modifications in 2004 to the carpark at the Club as he said he was not involved. He was aware that they had been undertaken because of the concern of residents about "hoons" engaging in anti-social behaviour in the area. 156He said that following notification of Mr Smith's accident, on a date that he could not remember, he went to the site to inspect the boom gate. He said that his recollection was that Mr Ian Smith of the Council had asked him to go and have a look at the area. He made arrangements to go to the site with Mr Lay and said that this was a specific inspection undertaken following the notification of the incident - it was not part of a formal external audit, nor part of an audit that he and Mr Lay undertook. 157Mr Mable referred to the inspection at [19] of his statement: Exhibit A at 195. It is clear that he had little detailed recollection of his inspection. The last five sentences of at [9] were admitted on the basis that they were matters he relied upon for his opinion. In it he said that, "the boom gate looked fine to me". He said it was a standard sort of boom gate painted white. He said there was no problem with being able to see it. He said he certainly did not consider that there was a danger and did not think that it required any action by Council. 158He said that Mr Lay did not suggest to him that there was a problem with the boom gate or that anything needed to be done. 159He did not make any report on his inspection. He was sure that he would have discussed it in general terms with his boss, Mr Bill Woodcock: Statement in Exhibit A at 196 [22]. 160In cross-examination, Mr Mable agreed that his inspection was a fairly informal one: T 141:10-15. He at first said that he had taken some photographs on his inspection but then corrected himself and said that the photographs to which his statement related were taken after the "second incident": T 141:40-45. 161He agreed that he did not take any photographs of the inspection carried out following Mr Smith's accident. He also agreed that he did not make any notes of his inspection. He said he reported back to Mr Ian Smith of the Council by email. 162Mr Mable was taken to computer recorded entries made subsequent to Mr Smith's accident in Exhibit A at 171. His attention was drawn to a file note, 9 February 2007, which was an entry to the effect that a Mr Vaidyaj had communicated with Mr Mable in the following terms: "... Colin, As discussed you will organise line marking and directional arrows for cyclists to follow the path at this location. Thanks" 163In cross-examination Mr Mable said that it was up to him to organise work such as line markings and directional arrows. He said at first that he did not think markings were necessary. However, he subsequently conceded that two days after the accident he in fact was the person who put directional arrows on the road of Riverside Drive: T 145:25-35. 164In relation to his inquiry into Mr Smith's accident, he said that he thought that the boom gate "looked fine to me" T 146. He did not see any problem with it or its construction. He did not think it presented any form of danger (T 147:1-15). However, he agreed that when he inspected it the boom gate was in the open position only. He said he did not attempt to obtain the key and unlock it to see what it looked like in the closed position: (T 147:5-15). 165He said when he looked at it there was 100 metres clear vision, no vegetation blocking it and it was a flat grade through the carpark so the visibility was unimpeded (T 147:30-40). 166He said that although he did not see the gate in the closed position although as has been noted earlier, he said: "I could assume how it would be". He then described how he assumed it to be and added "it would be very obvious to see so far as I'm concerned" (T 147:40-45). 167It was put to him in cross-examination that he did not at that time consider the feasibility of directional arrows for the purpose of directing traffic away from the boom gate exit. 168Mr Mable said he himself was a regular cyclist. He had seen other cyclists go through the boom gate exit and said he had possibly done so himself. He agreed that the foreshore shared pathway/cycleway (referred to as a "recreational cycleway") was not a practical route for the more "serious" cyclists (T 148:5-25). 169Mr Mable said he gave instructions following Mr Simmons' accident to erect a chevron sign on the boom gate. When it was put to him that this was done to make it more visible, he responded: "Well, it makes it consistent. We have put chevrons and similar things on other boom gates in the area so I wanted to be consistent": (T 149:40-45). He agreed that putting the black in contrast to the white made it more visible and that at the time of the incident there was "... a very small red thing at the top of the gate" (T 150:1-5). 170Mr Mable repeated that following his inspection he did not take any "immediate action until we finished the audit over the whole pathway, not just one specific spot ...": T 152:1-5. 171As to the arrangements or system for the opening and closing of the boom gate, Mr Mable was asked: "Q. Did you make any enquiries to determine what the arrangements, if any, were concerning the opening and closing of the gate? A. No, that wasn't - nothing to do with me. Q. That obviously is an important aspect of safety, isn't it? A. Well, yes. Obviously you want the gate open, but that wasn't my role at all of council to organise that. Q. Because if the gate's open you can't hit it, can you? A. That's right. Q. And closed gates and cyclists aren't a good mix, are they? A. No. Q. Whatever be the circumstances. A. Of course. Q. And one of the important considerations with respect to the opening of gates is that they can pose a hazard to whoever might be using the roadway and particularly cyclists, correct. A. Of course, if it is shut, yes. Q. Nobody at Council asked you, for example, to check with the club about what the system concerning opening and closing the gate was? A. No. Q. And you didn't speak to anyone at the club about Mr Smith's injury or your checking into it. A. No, it wasn't my role." (T 153) 172Mr Mable agreed that after the audit had been conducted in 2007 no suggestion had been made by anybody that steps should be taken to try and redirect cyclists who used Riverside Drive as a cycle route towards and through the spiked exit area (T 154:35-45). He agreed that that exit would constitute a narrow area for a cyclist to go. He stated, "It's a tight fit. That's why we put the pathway through with the green painting": (T 155:5-10). He said that he preferred to go on the cycleway "... that's the preferred way to go" (T 155:15-20). On the subject of cyclists riding through the Riverside Drive exit against the direction of the arrow painted on the roadway, he added that: "A. We have other sections of our cycleway where you do ride against the reversed flow of traffic. That's a common practice for cycleway routes to go against traffic flow: Q. Well, this is something I was going to raise with you. Runners, pedestrians walking on roadways, cyclists frequently for their own safety do travel in the direction opposite to oncoming traffic? A. That's right. Q. So they can confront one another and take steps to avoid each other? A. Yeah. Q. Because if a car is coming from your behind, it is much harder to be able to appreciate a risk and respond, isn't it? A. Yes. (T 155) 173He agreed that there were good and sensible reasons why cyclists would travel through the boom gate area against the direction indicated by incoming arrows which were intended to direct traffic in from the street. He also said "it certainly occurs in other locations": T 155:15-40. 174On the feasibility of introducing alterations by way of safeguards, Mr Mable said: "On the second occurrence [ie the plaintiff's accident], yes, I thought we should take some action". It was put to him: "Q. There was nothing from a practical point of view that prevented you doing, either on or shortly after 9 February 2007, what you eventually did after Mr Simmons' accident, was there? A. There was nothing preventing me, no. But I was wanting to do an audit before I took any action, to determine what was actually required if anything was required." T 145:35-45

(c) Mr Ian Smith 175Mr Ian Smith was called in the Council's case. He had commenced employment with the Council in 1996 as a carpenter and later became a Supervisor/Team Leader in the Parks and Property section of the Council. In 2001 he commenced his role as Insurance and Risk Manager for the Council. 176Mr Smith referred in his written statement to a council record relating to the accident involving Mr Daniel Smith. He said that he was notified of the matter on 29 January 2007 by email. A copy was included in Exhibit IS-1. 177A copy of an incident form, forming part of Exhibit IS-1, is to be found in Exhibit A at 171. The entry of 27 January 2007, 10.13am, records a report by Mr Smith's father: "Cycleway between Riverside Drive and St George Sailing Club has a metal 'boom gate' across it near the club. Gate was closed when Mr Smith's son cycled into it on the early morning light (6.00am). Mr Smith (Jnr) has been to medical centre and had x-rays. While there were no broken bones he has some significant swelling and will be off work. Mr Smith (Snr) ... stated that as you approach the gate the two 'No Exit' signs and some red stripped [sic] 'day glow' tape on the bar ... however the view of the gate is obstructed by the bush and growth. He considers the sign to go left needs to be further away from the barrier. Barrier is also likely to blend into the various road markings ..." 178The document also records an entry dated 9 February 2007 in these terms: "Colin, As discussed you will organise line marking and directional arrows for cyclists to follow the path at this location. Thanks." 179Mr Daniel Smith sent photographs to the Council in an email entitled "to whom it may concern" recording "please find attached a letter and accompanied photo's (sic) of accident scene and injury sustained ..." (Exhibit A at 173). 180Mr Ian Smith in his statement said that after he received emails about the accident on 28 January 2007, he spoke to Mr Mable about the matter. 181He said that he did not make any independent evaluation of safety of Mr Smith's accident (T 126). 182The document attached to Mr Smith's statement in Exhibit A at 171, in addition to the matters concerning the accident involving Mr Daniel Smith, also recorded an item concerning a safety audit of the cycleway in question. The entry is dated 8 March 2007 and reads: "Council is currently undertaking a safety audit along the length of the Cook Park Pedestrian/Cycleway including the section along Riverside Drive between Clareville Avenue and Frater Avenue San Souci. Once this is completed any recommended measures to improve safety along this pathway will be implemented by Council as soon as possible." 183Mr Ian Smith in evidence agreed that this entry related to a general audit not specifically related to the area in which Mr Smith had had his accident (T 130-131). 184Mr Ian Smith wrote to Mr Daniel Smith on 16 February 2007 denying liability. The letter referred to the Council's investigations which had been completed. A copy of the letter is in Exhibit A at 186. The letter recorded, inter alia: "... our investigation into the incident is complete and we hope that you are recovering well from your injuries. Council's Executive Engineer has advised me that Council staff plan to conduct an audit of the signage and line marking for the entire length of the shared path and cycleway. This audit is due to be completed in March 2007. ... We firmly believe that our asset inspection and maintenance systems satisfactorily meet the duty of care that we owe to the people that use them. Whilst your circumstances are regrettable, we believe they are the result of misadventure rather than any active negligence on the part of the Council. It is for these reasons that we deny liability to compensate you for the items claimed. ..." 185He agreed that he wrote the above letter notwithstanding that "broader issues of the cycleway" were still outstanding (T 131).

Conclusions 186The evidence in my assessment establishes the following: (1) The inspection carried out by Mr Mable and Mr Lay was not directed to identifying or assessing the probable potential causes or the factors that may have contributed to Mr Smith's accident. In particular it did not involve an examination of the gate in the closed position in order to determine whether it presented any difficulties or confusion in perception or visibility. No observation records or notes or findings in relation to the inspection were created. (2) Following the inspection after Mr Smith's collision, no recommendation was made for a review of the boom gate or its operation in order to determine the existence of any possible hazards or risks. (3) No inquiry was made by Council into the circumstances that explained why the gate had not been placed in the open position by or before 6.00am on the date of the accident. (4) No officer of the Council, following Mr Smith's accident, examined the adequacy or sufficiency of the Council's arrangements with the Club for the daily opening of the boom gate. (5) There had been no consideration given before the plaintiff's accident into the adoption of changes to the relevant area of Riverside Drive that were implemented following the plaintiff's accident. These included directional signing, and pavement markings designed to encourage cyclists to enter onto the foreshore recreational cycleway with an exit provided to the roadway by way of a new ramp area constructed a short distance away. (6) Mr Mabel had witnessed cyclists frequently using the boom gate access as a customary route to Fraters Avenue and accepted that he himself had probably used it. The path or route followed by the plaintiff when injured accordingly was a well-established one. (7) That there were good reasons, from the point of view of safety, for cyclists to use the boom gate exit against the directional flow of traffic. The directional arrows on the roadway at the boom gate were designed to direct motor vehicles in from Fraters Avenue into the carpark. In practical terms, they were not seen or treated, before the plaintiff's accident, as a prohibition or an indication against the use of the boom gate access point by cyclists. It was a facilitative direction for motorists.

(i) Expert Evidence 187Expert evidence was called by both parties from traffic engineers and from "visual" experts. 188In relation to traffic engineering and accident analysis, the plaintiff relied upon the evidence of Mr John Jamieson of Jamieson Foley, Consultant Forensic Engineers, whilst the first defendant relied upon the evidence of Mr Alan Joy of Joy Consulting and Mr Warwick Kiernan, Consultant Civil Engineer. These were referred to as the "Traffic Experts". 189The plaintiff relied upon the evidence of Peter Wenderoth from Macquarie University. The Council relied upon the evidence of Professor Stephen Dain of the University of New South Wales. They were both described as "Visual Experts". 190As noted earlier, Mr Jamieson's company undertook an audit on behalf of the defendant Council. The road safety audit report was dated 4 July 2007 and was attached as Appendix D to Mr Jamieson's report: Exhibit A at 701-777. 191Each of the expert witnesses provided written reports. In addition a Report from the Conclave of Expert Witnesses (traffic experts) was produced dated 24 August 2012: Exhibit A at 581 and a Report from the Conclave of Expert Witnesses (Visual Experts) dated 24 July 2012: Exhibit A at 569. 192Oral evidence was given at the hearing by Mr Jamieson and Mr Joy on 26 September 2012 on which date the Report from the Conclave of experts dated 24 August 2012 was tendered - Exhibit 10. Mr Jamieson's and Mr Joy's oral evidence is at T 171-193. 193Mr Jamieson is a consulting engineer. He has practiced as a forensic engineer and has had extensive experience in traffic safety and transport policy. He commenced his career with the NSW Traffic Accident Research Unit and there undertook all aspects of crash investigation and traffic safety. He joined the NRMA in 1982 as a Senior Traffic Engineer and then worked as a private consulting engineer (Gutteridge Haskins and Davy Pty Ltd) and thereafter in his own consultancy since 1989. 194Mr Jamieson gave the impression of giving evidence in a considered and objective manner. Importantly, his evidence, both in report form and in oral evidence, exposed the underlying premises relevant to and relied upon to support his analyses and conclusions. This was particularly important on the issue of visual ambiguity. A relevant matter in that respect related to the design and appearance and the location of the boom gate which in his opinion contributed to ambiguous or misleading visual cues to an approaching cyclist as to whether the gate was in fact in the open or the closed position. 195In the assessment of the expert evidence it is of assistance in evaluating Mr Jamieson's analysis and opinion to identify what might for convenience be referred to as the "human factors" and the objective traffic engineering factors. 196The human factors in the present case include: (i) The cyclist's pre-accident familiarity and experience of the cycle route in question; (ii) The cyclist's expectation (or lack of such expectation) of encountering a barrier or an obstructing object on or across the cycle route; (iii) The experience and level of skill and alertness of a cyclist. 197The objective traffic engineering facts include: (i) The conspicuousness of the boom gate; (ii) The appearance of the boom gate as a structure; (iii) The angled position of the gate from the perspective of an approaching cyclist; (iv) The approach geometry of the site from a cyclist's perspective; (v) The relevant features of the gate itself - (a) the steel bracing of the boom affecting visual interpretation of its particular position, and (b) the lower horizontal portion of the boom gate being parallel to and at a not dissimilar angle to the white kerb of the driveway below it, supporting an impression of it being open (referred to by Jamieson as "a perceptual trap or misleading perspective": T 179:10-35). 198The analysis undertaken by Mr Jamieson proceeded upon the basis that the above (and other matters detailed in his reports) are interrelated and connected to other issues, in particular, the "Visibility issues" and "Avoidability framework"; (Report 13 February 2009, Exhibit A at 678-680), the latter being analysed in terms of "avoidability" based on the time consumed as to perception and reaction, in particular in relation to: (i) perception of the hazard; (ii) reaction to the hazard and (iii) evasive manoeuvre. 199Mr Jamieson undertook two inspections of the accident site and surrounding area on 22 January 2009, commencing at 5.45am and finishing at 6.45am and on 12 October 2009. The latter inspection focussed on a central issue, the visibility of the boom gate when in the open position in contrast to when it is in the closed position (T 177-8). 200Mr Joy's primary report on behalf of the Council is dated 12 October 2009 (Exhibit A at 779). He also wrote a supplementary report dated 9 September 2010 which commented on Mr Jamieson's report of 12 October 2009 and on Professor Wenderoth's report dated 22 March 2010 (Exhibit A at 843). Mr Joy is a traffic engineering consultant. His earlier experience was in the design and construction of civil earth works and structures. He later conducted research, reports and submissions on traffic safety for the NSW Roads and Traffic Authority and the Department of School Education. He has also designed large-scale management measures to the requirements of the NSW Roads and Traffic Authority for works zones and major arterial roads. He has also conducted traffic studies and safety audits of roads and traffic facilities. He holds a Diploma of Applied Science and Certificate in Traffic and Transportation Engineering. 201Mr Joy inspected the accident scene and surrounding area on 2 July 2009 (mid-morning) and on 24 July 2009 (between 6.30am to 7.05am). He confirmed that on both occasions during his inspections the boom gate was located in the open position. He said that he did not make observations of the boom gate in the closed position: T 176. 202Mr Joy commented in both his reports and in his oral evidence upon the visibility of the boom gate from a cyclist's perspective when located in the closed position (as shown in photographs in Exhibit A at 672 and 673). He acknowledged that, as he had not had the opportunity of actually seeing the boom gate in the closed position he was dependent upon photographs in making his comments and observations. He considered, however, that any disadvantage in not having actually observed the boom gate in the closed position was minimal: T 192. 203Mr Jamieson observed that, unlike a controlled crash test, retrospective crash analysis relies on an incomplete set of information. The materials that were used by Mr Jamieson, Mr Joy, and Mr Kiernan are identified in their respective reports. 204The assumptions upon which the experts proceeded included the fact that the accident occurred at 6.15am on 11 April 2007 and that the sun rose at 6.15am on that day (with what is termed "civil twilight" occurring at 5.50am). Accordingly, the plaintiff's accident is said to have occurred approximately at the moment of sunrise. 205The experts reports contain photographs taken from different positions and at different times and on different dates. Mr Jamieson's report dated 13 February 2009 includes photographs taken at times specified on them: Exhibit A at 671-673. 206The boom gate modifications post-dating the accident, including the installation of reflective material, are depicted in the photograph in his report at Exhibit A at 672 and 673.

(ii) Speed and Reaction Times 207Mr Jamieson commented on the difficulty of determining the exact approach speed of the plaintiff's cycle. The plaintiff's evidence in cross-examination was that, although he was not entirely sure, the slowest speed that he was doing between the point he left the Taren Point Bridge and hitting the boom gate was "probably" between 25-30 km/h (T 51). On the evidence that appears to be a reasonable estimate. 208The expert evidence addressed the issue of perception/reaction times. Mr Jamieson stated that research suggests 1-2 seconds would be the reaction time needed to stop or slow the cycle but that the issue of "ambiguity", as discussed in his report, may have meant that reaction time would be longer. 209Mr Joy stated that perception/reaction time (the time taken to observe a hazard and the reacting time to initiate evasive action) is known to vary significantly amongst the population and in different circumstances. 210Mr Joy considered that additional distance related to reaction is to be allowed for in order to implement evasive action, in this case, braking action. Emergency braking distances for a bicycle travelling between 25-30 km/h could reasonably be expected to be in the range of 6 to 12 metres. Accordingly, total stopping distances, on his evidence, including a one second perception/reaction time, could reasonably be expected in a range between 13 and about 21 metres. 211Mr Kiernan, adopting a reaction time of 2.5 seconds and a friction coefficient of 0.25, estimated that the total reaction distance, plus braking distance travelling at a speed between 25 km/h and 34 km/h would be between 27 metres and 43 metres. 212Mr Jamieson observed: "A fundamental issue associated with traffic engineering and traffic safety concerns the time consumed for a road user to perceive a situation and appropriately react to it." (Exhibit A at 678) 213He continued: "In this instance, the perception of the rider to a barrier across the road would relate to firstly its direct visibility in dawn conditions, and secondly to the expectation of the rider of a barrier being present." (Exhibit A at 679) 214In his summary and conclusions, Mr Jamieson observed: "It was noted however that at the time of the crash it was reported there was foliage growing within the garden which may have obscured the vertical post to the boom gate. Secondly, it was noted that the steel bracing of the boom was constructed at such an angle that an approaching rider or driver could easily interpret the angle of the brace to give the impression the boom gate was open (see Figures 5 and 6 of this report). A retro-reflective sign was subsequently fitted to the boom gate, and the foliage trimmed." (Exhibit A at 681) 215Mr Joy expressed the opinion that there did not appear to be evidence to support Mr Jamieson's observation that the view of the boom gate could have been obstructed by vegetation (in particular the posts at either end of the boom gate). 216He concluded that there was a clear unambiguous vision of the gate readily available to an observer approaching it in an eastbound direction. In summary, Mr Joy did not consider that visibility of the gate was an issue related to the accident. 217Mr Jamieson noted that following the accident the Council design for the carpark integrated the two-way regional cycleway route along the foreshore within the carpark. This was sign-posted and line-marked according to Australian Standards. 218As to signage and markings, Mr Joy considered that the traffic environment to the carpark was clearly designated one-way westbound by way of appropriate signage and markings. No additional treatment was warranted to warn road users moving contrary to the marked direction of traffic flow: Exhibit A at 792-793.

(iii) Perception and Interpretation of Images 219In the analysis set out in his supplementary report, Mr Jamieson made a number of observations on both the perception and the interpretation of the images as shown in Figure 1 to his supplementary report (Exhibit A at 809). In that respect he observed: "In the pre-dawn lighting, 'on first glance' an approaching rider could interpret the image shown on Figure 1 (noting the qualifications about the absence of hazard warning markers and foliage) could easily interpret the image to represent that shown in Figure 2. This interpretation would be reinforced by the appearance of the lower structural member of the boom gate - as discussed in this firm's original report, page 15": (Exhibit A at 812) 220A little later in his supplementary report Mr Jamieson observed: "The rider would have been looking up and around and would have been aware of an image approximating that shown in Figure 3. That is, the presence of the gate (in the instance of Figure 3) - in an open position. ... It would then be expected the rider looked back towards the north and again would have generally perceived the presence of the gate. It is in this period that some subjectivity exists in relation to extent of the 'perception' time consumed. As discussed on page 14 of this firm's original report, part of that perception period is involved in 'fixation' and 'recognition'. The original report suggested that it would 'normally' be expected that a rider would be able to perceive an unambiguous threat and react to it in about one second. In this instance however the rider would have been conditioned to approach an open gate (Assumptions 10 and 13). Therefore, as he looked back towards the front (having glanced to his left) he would have been presented with the presence of a gate which would not look unlike the gate when open (see previous figures). Therefore a significant period would elapse for the perception process to 'recognise' that the image seen ahead constituted a hazard. From a traffic engineering viewpoint (from references cited in the earlier report) this process might consume several seconds." (Exhibit A at 812-813) 221Mr Jamieson set out a rider's expected actions and perceptions on approach as follows: - "Traffic clear on left", - "Look ahead", - "Yes, the gate is there", - "I will move through the driveway", - "Why does the gate look longer than usual?" - "The gate is closed!" ... - "Impact" (Exhibit A at 813) 222Mr Jamieson considered, from a traffic engineering viewpoint, that the gate only swings open about 45 degrees - and thus appears to approaching riders as apparent full length. He added: "With reference to Figures 2 and 3, only when a rider or driver gets much closer to the gate does it become unambiguously apparent that it is either open or closed. This is particularly the case in dim lighting conditions." (Exhibit A at 813) 223On Mr Jamieson's evidence, ambiguity in the perceived position of the gate, having regard to its 45-degree angle when open, with the associated risk of delay in perception of it in the closed position, are clearly material matters in the assessment of the scope of duty and issues of breach. As the evidence established, they potentially assume importance in the context of a cyclist who has been conditioned to the gate being in the open position at 6.15am each morning. 224Mr Joy in his response letter dated 9 September 2010 (Exhibit A at 843-844) addressed the concept of a "perceptual trap" in the road environmental sense - where the available visual information does not afford the observer with timely and accurate information about the road ahead and in fact affords misleading information. 225The premises for his analysis and his conclusions may be simply stated. He considered that the boom gate across the driveway was not ambiguous. On that basis, Mr Joy concluded that the plaintiff's failure to recognise it was consistent with him having failed to direct his attention to it on a timely basis. 226Mr Joy accepted that given the plaintiff's early morning experience of the boom gate in the open position it could be argued that that "... in some way entitled him to an expectation that it would not be closed on any subsequent occasion" (Exhibit A at 844). That, of course, is in line with Mr Jamieson's opinion. He went on to state that nonetheless it was the responsibility of road users to maintain a lookout for unexpected hazards in their path and to be able to accommodate those hazards. It is to be noted, however, that the expert evidence established that the ability to "accommodate" however, must bring into account the relevant variables at work in a particular fact situation. 227Mr Warwick Kiernan, consulting civil engineer, carried out an inspection on 15 July 2010 between 6.30am and 7.40am, that is 15-25 minutes after the time of the day that the plaintiff had his accident. He noted in his report that during his site inspection there were many cyclists travelling the cycle route. Some travelling eastbound, he said, went through the carpark exit controlled by spikes, others went along the cycle path to the right when the gate was closed, whilst others went through the boom gate access when it was open as the plaintiff sought to do on the day of his accident. He said that these cyclists had the appearance of being "serious cyclists" or "cyclists in training": Exhibit A at 854. 228He had the opportunity of observing the gate in the closed and open positions. He expressed the opinion that the actual location of the boom gate as a means of preventing access to the carpark at night was the logical and most appropriate position. He considered that it was visible and would not be considered a hazard to cyclists. He stated that at 6.58am on 15 June 2010 the closed gate was visible to him at the time he walked northerly along the carpark entry road and was visible for northbound cyclists for over 100 metres south of the gate. 229Mr Kiernan conceded, however, that the difference between the circumstances of his own observations and those of the plaintiff was, that as he approached the closed gate he had advance knowledge that the gate was closed. He had noted that point in his report: at [35]. He also noted that the plaintiff had said that he had proceeded upon the expectation that the gate was open, this having been based on the number of times that he had cycled past the boom gate on his early morning training rides. Nonetheless, he expressed his view that a closed gate was in full view of an approaching cyclist. He stated that on the plaintiff's likely travel path the gate was obvious. He concluded therefore that there is "no uncertainty" as to whether the gate was opened or closed. 230Mr Kiernan referred to the boom gate collision involving Mr Smith on 23 January 2007 as of a similar kind as the plaintiff's accident involving a collision with the boom gate in the closed position. He concluded that Mr Smith's accident also resulted from rider inattention. 231He concluded that the gate erected by the Council was an appropriate design for the carpark. He repeated that it was visible to cyclists. He did not consider it was reasonable to have expected Council, when the carpark access road design modifications were carried out, to have identified or considered that a closed gate could operate as a bicycle hazard. 232Mr Kiernan did not examine the operational arrangements between the Council and the Club concerning the opening and closing of the gate. Apart from the observations referred to in [229] above, he did not analyse the history of the plaintiff's frequent use of the cycleway or seek to establish the extent of the effect of that prior experience on the issues of (a) perception, (b) expectation, (c) delay in recognition or (d) the issue of "perceptual trap". 233On the issue of rider reaction time, his essential proposition was that there was sufficient time for the plaintiff to have stopped or to have taken evasive action. 234Mr Kiernan's review and opinion as to the plaintiff's and as to Mr Smith's accident, with respect, was based, to a significant extent, upon assertion without underpinning analysis. 235This is particularly so with respect to his opinion: "51 Based on my on-site observations at the time of the incident an alert rider would have been aware of the closed gate at the time of the accident. Mr Smith was an experienced rider ..." (Exhibit A at 862) 236Mr Kiernan did not seek to analyse in any detail: (i) the issues that impact upon a cyclist's visibility whilst in the course of moving towards the gate having regard to the gate being located at an oblique angle; (ii) the scope and operation for "ambiguity" in the perception of the gate when closed and the similarities when it was in an open position; (iii) the issue of "expectation" of the cyclist as a factor that can impact upon visibility or perception and (iv) the consequences of such matters to reaction times or the issue of "perceptual trap". 237I have concluded that Mr Kiernan's brief analysis of Mr Smith's accident is largely based upon his own observations without regard or due allowance being made for the issues. In those circumstances, I consider that little weight can be attached to the conclusions expressed by Mr Kiernan where they are unsupported by any adequate form of analysis. 238The positions from which observations were made by the expert witnesses and the limitations upon those observations are to be noted and taken into account. In this respect, Mr Jamieson confirmed that the perspective or visibility of a cyclist would be different in certain respects from observations made standing at ground level (T 178:10-15). Mr Joy agreed (T 178:20). The evidence of experienced and reliable cyclists given in these proceedings accordingly plays an important role in reconstructing the likely circumstances at the time of the plaintiff's accident. 239Mr Kiernan in his report to the Council's solicitors dated 12 October 2010 referred to on-site observations of the boom gate when the boom gate was in both the open and closed positions. 240In his oral evidence he based his opinion that the closed position of the gate would have been apparent to the plaintiff upon the basis, inter alia, of his observations of an assumed or "likely travel path of the plaintiff on the right side of the entry road" which he states makes the gate "more obvious": Report, Exhibit A at 859 [39]. 241The assumption made by him as to the "likely" travel path followed by the plaintiff was not put to the plaintiff in cross-examination as the path that he in fact followed. As the photographs of the relevant part of Riverside Drive indicate, it is a reasonably wide roadway. The plaintiff said in evidence that he had cycled down it on many occasions. The issue of Mr Kiernan's assumed travel path, not having been put to Mr Simmons, meant that the assumption made was without evidence to support it. 242Mr Kiernan's opinion, expressed in somewhat absolute terms, that there was no uncertainty as to whether the gate was opened or closed (at [39] and [40] of his report) is, as indicated above, to be considered in the context of him not having engaged with the issues raised by Mr Jamieson on the subject of visual ambiguity. 243Finally, Mr Kiernan's examination does not seek to offer an explanation of the evidence of Mr Unicomb and Mr Smith. If their evidence is reliable evidence (a matter considered below) their accounts may be considered to be at least consistent with the presence and operation of factors that are capable of causing ambiguity or confusion.

(iv) Ambiguity in Interpreting Visual Images 244In final submissions on behalf of the Council it was contended that the boom gate was "unambiguously" clear to a cyclist: First Defendant's Outline of Submissions at 32 and 35 - "an unambiguously clear gate", "the gate was readily observable and obvious": at 54. 245These submissions on behalf of the Council, with respect, at times failed to deal with the central issue in the plaintiff's case. That was not whether the gate itself was readily observable, for it clearly was an observable structure when it was in its usual open position. The issue requiring consideration was the ability of an approaching cyclist, conditioned to have expected the gate to be open, to discern that the gate was in the closed position taking into account, inter alia, the "conditioning" factor referred to above and the expert evidence as to visual or perceptual ambiguity, and the angled position of the gate. 246The evidence in particular of Mr Jamieson was that the gate was in fact positioned or located at an oblique angle, that that contributed to a perceptual ambiguity, and that it contributed to the perception that the gate was open when it was in fact closed. I refer below to the plaintiff's evidence of the gate having previously had to him an appearance of a fence-like structure and that in the position it was in before the collision it did not have the appearance of a gate. 247The oblique angle at which the boom gate was situated when open is depicted in both photographs and diagrams. As Mr Joy observed, the boom gate was located "in effect, oblique to their (ie cyclists) path, or it appears oblique to their path": T 182:15-120. 248The expert witnesses commented upon the issue of the boom gate's "perspective" from the viewpoint of the cyclist. Mr Jamieson, as noted above, observed: "It was noted that the steel bracing of the boom was constructed at such an angle that an approaching rider or driver could easily interpret the angle of the brace to give the impression the boom gate was open (see Figures 5 and 6 of the report)": Report 13 February 2009, Exhibit A at 681. 249The fact the gate was oblique to an approaching cyclist's path is a material fact in determining visibility, and is a matter not to be disregarded in the analysis. The question was how that bore upon the ability of a cyclist to see that the gate was in the closed position. 250Mr Jamieson explained, in some detail in his oral evidence, why the configuration of the steel bracing of the boom gate could readily lead to a misleading interpretation that the gate was in the open position. He gave the following evidence: "... it relates to perspective. The angle of the boom gate - the boom gate comprises two tubular steel components. One is a horizontal component that is parallel to the ground, and the other is braced from the base of the eastern end of the gate up towards the western end of the gate. And because of that different angle, it creates a perspective of the gate appearing to be open." (T 178:30-40) 251Mr Jamieson developed in his oral evidence the basis for his observations and conclusions of the existence of what he termed "... a perceptual trap or misleading perspective": (T 179:20-25). His evidence was as follows: "WITNESS JAMIESON: Yes, well your Honour, the - in that photograph the gate is actually comprised - the gate itself comprises four pieces. That's a horizontal piece that's parallel to the ground, two vertical supports - two posts, as it were - in the middle, and an angled piece at the bottom of those two vertical pieces. And the gate in that position shown on page 233 - the bottom tube, as it were, has a similar angle to the white curve below it. Well, not a dissimilar angle, I should say. And therefore it gives the perspective of being open. But I take your Honour back to 809 and 810 - particularly 809, your Honour. At 809 the gate is in fact closed but the lower portion of the gate itself is angled, and is of a similar perspective to the kerb below it. And that's what's causing what I'm referring to in my evidence, your Honour, as a perceptual trap or misleading perspective. HIS HONOUR: And could you just define what you mean by this perceptual trap? WITNESS JAMIESON: Your Honour, in traffic engineering sometimes facilities are built where the sign posting or line marking or whatever it might be, which gives a driver or rider a misleading view of what's going on in front of them. And it's most common with street lights, your Honour, where a line of lights might give the impression of the road going straight ahead but in fact it curves around. That's an example of a perceptive trap. HIS HONOUR: And what's the misleading aspect of this trap that you're referring to? WITNESS JAMIESON: Your Honour, it's the angle of the lower part of the gate, in my - my technical- HIS HONOUR: How does that constitute the trap? WITNESS JAMIESON: It creates a - it creates the impression of the gate being open, because the lower part of the gate follows the line of the kerb." (T 179:11-44) 252A little later Mr Jamieson again addressed the issue: "HIS HONOUR: ... That a cyclist moving towards the boom gate which we see in either 233 or 809 can see the gate in its open position with the upper and lower metal horizontal or angled pieces, partly because of the angle and proceeding in that direction as well as being able to see it if it was closed. In other words, I'm just putting these aspects out. Are these relevant to determining what you've referred to as the trap? That is to say, whether it's open or not, a cyclist can see the white horizontal parts of the boom gate and whether that is relevant to the evidence you've just given. WITNESS JAMIESON: Yes, it is, your Honour. Your Honour has helpfully pointed out the second aspect of perceptual trap, and thank you for that. What my previous evidence was talking about, the lower portion of the gate itself creating its different angle to the top part, which it's my opinion that creates a perceptual trap. But as your Honour pointed out, because of the way the gate swings open, it's the - as shown on 809 and 810, because it swings back towards the north, as it were, they have - they both have similar views. Sorry, both have similar appearances, your Honour. HIS HONOUR: Yes, thank you. CAMPBELL: Is what you're saying, to put it in perhaps non-engineering terms, that it creates an illusion in front of the cyclist as to the position of the gate? WITNESS JAMIESON: That's reasonable, yes." (T 180:6-30) 253Two matters of significance arise in relation to this evidence. First, Mr Jamieson was not cross-examined or challenged on his evidence as to the "perceptual trap"/boom gate configuration issue addressed by him in his testimony extracted above. 254Further, the expert witnesses called by the Council did not expose Mr Jamieson's analysis of the issue of "perceptual trap", as extracted and summarised above, as a flawed analysis or as one lacking support or that it had been incorrectly applied by Mr Jamieson in reaching his conclusions. 255Thirdly, it is of some importance to take the expert evidence into consideration with the evidence of cyclists who were called at the hearing including what the plaintiff himself said he saw or did not see as he approached the boom gate on the day of his accident. By this approach to the evidence an assessment may be made as to whether such evidence is consistent with or fits in with the concept of a perception hazard or a perceptual trap as explained by Mr Jamieson. I will refer to that evidence below. 256Mr Joy's primary report dated July 2009, Exhibit A at 779-795, addressed facts related to "The Incident Location" (at 785-788). His "Discussion" commencing at 789-793, contained a segment on "Visibility of the Gate", paras 9.28 to 9.35. The discussion in those paragraphs focussed upon daylight conditions and the visibility of the gate as a structure as well as the issue of "vegetation" near the boom gate. 257Although Mr Joy had not dealt with the particular matters identified by Mr Jamieson as creating perceptual ambiguity, by way of a response in his written reports, in oral evidence he nonetheless disagreed with Mr Jamieson's observations. In his oral evidence he pointed to the top bar of the gate as seen in photographs in Exhibit A at 809 and 810 (T 181:15-30) as a significant indicator. 258As to this aspect the following matters are noted. First, although Mr Jamieson had identified in his primary report the bases for what he concluded was visual or perceptual ambiguity, Mr Joy had not, as I have stated, considered or referred to them in his reports. Second, even taking into account his reliance upon the visibility of the "top bar", that of itself does not necessarily negate the presence and influence on a cyclist's perception of the matters Mr Jamieson said contributes to confusion and ambiguity concerning the position of the gate before impact. All such matters, Mr Jamieson emphasised, required time for processing by an approaching cyclist. 259Third, the point made by Mr Jamieson was based upon his on-site observations of the gate in its open and closed positions. Mr Joy as noted elsewhere did not inspect the gate in its closed position on his site inspection. 260Fourth, the ambiguity issue raised by Mr Jamieson has to be considered in the overall context of (i) the plaintiff's previous cycling experience of the route; (ii) the development of "expectations"; (iii) the impact that that has upon perception/reaction times, and (iv) the past occurrence of similar collisions having occurred involving skilled and experienced cyclists. 261Mr Joy's ultimate opinion that there was clear unambiguous vision of the gate available to an observer approaching (para 9.35), with respect, was in the nature of an assertion without analysis or explanation of the particular issues dealt with by Mr Jamieson bearing upon whether there was or was not clear or unambiguous visibility of the position of the gate, when in its open position, from the perspective of an approaching cyclist.

(v) The Perception/Expectation Issue 262The issue of "ambiguity" or "perception trap" was dealt with by Professor Wenderoth in his report of 22 March 2010, Exhibit A at 603-620. He discussed independent variables that contribute to observer behaviour - what he termed "sensitivity" and "response bias". In that regard, Professor Wenderoth stated: "... sensitivity refers to an observer's ability, using his or her visual machinery, to be able correctly to detect that a situation is what it really is (eg Is the gate open or shut?). Response bias refers to something that has nothing at all to do with perceptual ability. Rather, it refers to how willing the observer is to respond one way or the other. Response bias is completely determined by two variables in any experiment: the value (not necessarily monetary) of making one or the other response and, more importantly here, the expectancy of one or the other event based upon how frequently that event has occurred in the past. So, for example, an observer asked to say whether a light flashed or did not flash is much more likely to say 'no' if on the previous, say 100 occasions, there had been no light; but is much more likely to say 'yes' if on the previous say 100 occasions, there has been a light. It is very important to note that such response bias is completely unconscious and occurs regardless of how much the observer is attempting to make correct perceptual detections and recognitions." (Emphasis added) (Exhibit A at 617-618) 263Professor Wenderoth identified two matters of note in the present case. The first concerns the position of the boom gate and whether that created difficulties for a cyclist in perceiving whether it was in the open or closed position. The second was the relevance of the "bias in response" that had been built up over the years during which the plaintiff had cycled the route without having previously encountered the boom gate in the closed position. 264These matters, separate from issues such as "perceptual clutter" (arising from white markings across the surface of the road on the speed humps and the pedestrian crossing), were said by Professor Wenderoth to be material to the issue of perception or perceptibility. 265Both Professor Wenderoth and Professor Dain discussed the issue of "expectancy". Professor Dain observed in his report dated 26 May 2010: "25 The second issue is the detection of an object relates to the expectancy of seeing it. An unexpected object is less easily recognised." (Exhibit A at 636) 266Professor Dain agreed with Professor Wenderoth in these terms: "... so I agree that the expectancy will also bias the response. In my examples, when there is no expectancy of an event or object then the perception is difficult but, in my example, once the image is seen, the perception is easier. Thus an unexpected object will be detected later and more slowly than an expected object. Professor Wenderoth's argument is a response can be influenced by an expectancy of something else. This is indeed true. However, the degree of ambiguity in the visual image also has a role ..." (Exhibit A at 645 [49]). 267In the report from the Conclave of Expert Witnesses held on 24 July 2012, Professor Wenderoth and Professor Dain agreed upon responses to the question: "2(a) Were there any impediments to the viewing of the boom gate at dawn?" 268The report noted the agreement as follows: "We are agreed on the following: 1 The expectancy of a closed gate in the plaintiff's path was close to zero based on his experience of 10 years travelling that route. This was confirmed to Professor Wenderoth by other riders who had never seen the gate closed. Professor Dain has no reason to dispute this. As a consequence attention may not have been paid in the direction of travel. 2 There is no physical impediment to viewing the gate at dawn. 3 In some, static, circumstances there is ambiguity in interpreting the position of the boom gate. Given the moving point of view of an approaching cyclist, these ambiguities are reduced." (Exhibit A at 571-572) 269The plaintiff's evidence, which I accept, was that in his experience of cycling the route in question the boom gate had always been in the open position. On the basis of the analysis in their reports, the evidence of Professor Wenderoth and Professor Dain establishes the following matters: (i) The boom gate when in the closed position as it was at the time of the plaintiff's accident, constituted for the plaintiff "an unexpected object" that "will be detected later and more slowly than an expected object": Report of Professor Dain in Exhibit A at 645 [49]. (ii) The consequential effects of an unexpected closed boom gate may include difficulties in detection, perception and a longer (delayed) reaction response. (iii) The slower or delayed detection referred to in (i) above and the slower response to the unexpected event referred to in (ii), could accordingly have impacted upon the plaintiff's ability to take evasive or braking action.

(vi) The Issue of the Degree of Ambiguity 270The evidence raised the issue as to whether "contrast" is a factor of relevance on the issue of ambiguity. 271Professor Dain, whilst not suggesting that "ambiguity" (as Mr Jamieson proposed) could not, and did not exist for the reasons given by Mr Jamieson, observed that ambiguity may be reduced in some situations by "contrast". 272However, Professor Dain did not for the purposes of his analysis take any measurements of the boom gate in the open position or perform any empirical analysis of the issue of "contrast" when the boom gate was in both the open and closed positions, including "contrast" from the perspective of a cyclist approaching the area in which the boom gate was located. In those circumstances, he necessarily relied upon general experience for the proposition that the boom gate in the open position would present no less contrast to its background than when in the closed position. 273However, the central question remains as to whether or not the boom gate, when closed, was capable of giving rise to or forming a perceptual trap for an approaching cyclist. 274I have referred above to the joint conclave report by Professors Wenderoth and Dain at [267] above. As noted in point 3 set out in that report in Exhibit A at 572, reference was there made to the general proposition that from a moving point of view of an approaching cyclist ambiguity is reduced. However, in the present case that opinion needs to be assessed upon the basis referred to above, namely, that neither Professor Wenderoth nor Professor Dain undertook observations or made an empirical analysis directed to determining the extent of ambiguity of the gate in the closed position when seen from a cyclist's viewpoint and the degree of any reduction in ambiguity due to "contrast" that may arise when approaching an object or structure. If any reduction in ambiguity could arise, it would then be important to evaluate the extent of any such reduction from the viewpoint of the cyclist approaching the gate in circumstances similar to those encountered by the plaintiff, by Mr Smith and by Mr Unicomb, all of whom had been conditioned to expect the gate to be open. 275Mr Jamieson, Mr Joy and Mr Keirnan undertook their observations from ground level, from fixed positions and also by moving about at ground level backwards and forwards. It appears that Professors Wenderoth and Dain made their observations in a similar way. Without observations taken from the position of a person mounted on a cycle or made by video camera mounted on a cycle, the only evidence in the present proceedings as to the actual or true perception of a cyclist when approaching the boom gate unexpectedly in the closed, position is the evidence of three persons - Mr Smith, Mr Unicomb and the plaintiff. Plainly their evidence as to what they could see or could not see, if reliable, is of significance in relation to the issue of "contrast", "visual ambiguity", and "perceptual trap" and perception/reaction times. 276I turn therefore to the evidence given by each as to what each said they could and could not see as they approached the boom gate in the closed position.

(a) The Plaintiff's Evidence 277The plaintiff's evidence was that when he entered upon the "the car park" "all was normal". He said that, as he moved towards the boom gate, he was looking ahead. He stated: "14 ... I checked ... the traffic left and right on Fraters Avenue and Riverside Drive. There was no traffic about". (Exhibit A at 34) 278He then described events: "15 Suddenly, out of nowhere, a boom gate closed across the entrance to the carpark appeared in front of me. I only had a fraction of a second to spare and I couldn't avoid hitting it. I hit it at speed." (Exhibit A at 34) 279The plaintiff described the route that he was using that morning as "a regular training ride that I would do in the mornings during the weekdays ..." (T 39:40-45). These, he said, were typically 50-80 kilometre training rides: (T42:20-25). He accepted in cross-examination that he was an experienced cyclist at a competitive level and that he had only two weeks prior to the accident competed at the National Masters track cycling championships: (T 47:20-25). He said he was also a professional cycling coach. In that capacity he said: "... I'm a professional cycling coach, very acutely aware of these things ...". 280The plaintiff was asked in cross-examination as to what he saw ahead of him in terms of the boom gate: "Q. It is pretty obvious there looking at the photograph? A. It is obvious to me, looking at that photograph with full knowledge that yes, there is a gate there. Q. That would have been right in front of you at the time you had your collision? A. Well obviously, yes. Q. It would have been just as obvious to you as you approached it on the day of your accident, wouldn't it? A. No. Q. Why not? A. Well for several reasons. Q. Tell us one. HIS HONOUR: Let him answer please. Continue. WITNESS: As you approach from the cycleway exiting the bridge, you come along the road. You see a number of white horizontal lines, two of which are speed humps that you have spoken of and another white horizontal line which, as far as I was aware, was just a fence along the side of the road. As I subsequently realised later, when the gate is closed, the gate appears to be exactly the same as you are approaching it as it does when it is an open position. It wasn't obvious to me that I had a closed barrier that I was approaching" (T 58:20-50). 281I closely observed the plaintiff whilst he gave evidence. I formed the impression that he was a forthright and frank witness. In cross-examination I considered he answered questions in a direct manner and at times making appropriate concessions. He did not display any tendency towards exaggeration or of giving evidence in a self-serving manner. In summary, he was an impressive witness. Indeed, I note that there was no suggestion made in any submissions on behalf of either defendant to the contrary. 282The plaintiff's evidence that he could not, and did not, detect that the boom gate on the day of his accident was in a closed position until it was too late to avoid it is significant if his evidence that he was looking ahead as he approached the boom gate is to be accepted. Having closely examined his evidence I accept his account as both a truthful and reliable one. This, I note, is subject to one matter that I will address in relation to contributory negligence. 283The plaintiff's evidence is consistent in many respects with the expert evidence, in particular in relation to the issues of "ambiguity", "perceptual trap" and "contrast" and the presence of other suggested, "cues". He said in the clearest terms, and I accept: (i) That he could not discriminate or detect the gate's position as being other than in its usual position until he was a very short distance from it. (ii) That he had, up to that time, maintained an appropriate look out, including, in particular, looking ahead of him as he rode and taking observations to his left and right as he approached for the presence or otherwise of traffic on Fraters Avenue. (iii) That the white tubular horizontal metal structures of the boom gate when open had from the approach of an approaching cyclist, following the plaintiff's route, the appearance of a white metal fence-like structure. (iv) The boom gate when in its closed position, in some of its aspects, presented a similar appearance as when it was in the oblique angled position in the open position. 284I accept the plaintiff's evidence when he said he was maintaining a lookout ahead of him. The plaintiff's evidence as to his observations when riding his cycle up to the boom gate on the day of his accident I have concluded represents a reliable visual account of his "perception" at that time. 285I have also concluded that upon the evidence given by the plaintiff and by Mr Jamieson and Professor Wenderoth that his perception was affected by visual ambiguity as to the actual position of the gate (that is the open or closed position). That is consistent with the expert evidence. I accept Mr Jamieson's evidence that such ambiguity can mislead a cyclist in determining the true position of the boom gate (open or closed positions) and such as to have misled him as to its true position. 286The plaintiff's evidence (at T 58) that the boom gate appeared to him, when in the open position, to have been a fence-like structure along the side of the road which had a similar appearance when it was in the closed position, was not specifically or in terms challenged or suggested in cross-examination to have been incorrect, false or implausible. 287His evidence as to what he could, or could not, perceive (the issue of perceptual "ambiguity") had additional support in the experiences related by each of Mr Smith and Mr Unicomb in evidence whose evidence I also completely accept. I will refer to their evidence below. 288Before dealing with their evidence on the issue of vegetation and the issue of visibility, the plaintiff gave the following evidence: "Q. Are you saying that the scene which is presented there is different in terms of the shrubbery, for example, than it was on the day of your incident. A. Yes. Q. How is it different? A. A lot of the shrubbery appears to have been cut back from the gate. Q. So where abouts - as we look at the gate, was it between us and the gate. A. Behind the gate. Q. Right. Well when you say 'behind the gate', a foot or so, or a yard or a metre or whatever you prefer? A. I couldn't tell you. I've never hopped off the bike to have a close inspection, but there was definitely more shrubbery and particularly at the ends where the posts are. (T 48:5-20) 289I note on this issue: (i) A Council file note dated 25 January 2007, contains the following entry: "Could you please investigate the possibility of spraying directional arrows at the entrance and exit to the cycleway alongside the boom gate at the entrance, exit to St George Sailing Club car park. Cycleway is slightly obscured by well trimmed foliage in garden". (emphasis added) (Exhibit A at 171) (ii) Mr Jamieson, as noted earlier in this judgment, made an observation on the reported foliage which he observed apparently affected the visibility of the vertical posts at either end of the gate: Report 13 February 2009, Exhibit A at 679. 290In the course of Mr Joy's evidence, questions as to the visibility of the boom gate, in particular, the two gate posts forming part of the gate and whether they had, to some extent, been obscured by vegetation were discussed: Report 29 July 2009, Exhibit A at 792 [9.33]-[9.35]. 291At [9.33] of his report, Mr Joy referred to a suggestion that had been made that vegetation in the gardens at either end of the boom gate could have concealed the posts at either end of the gate and thereby reduced conspicuity. Mr Joy's comment on that was: "there does not appear to be any specific evidence to support this suggestion" (at [9.34]). 292The above evidence of Council records provides support for the proposition that vegetation was identified as a possible relevant issue by Council officers. The plaintiff's evidence is consistent with that evidence and suggests the presence of an amount of vegetation in the area of the boom gate, particularly in the area of one or both posts. However, beyond that it is not possible to make any firm conclusion as to the extent of any impact from the same on the visibility of the gate or its structures.

(b) Mr Unicomb's Accident 293Mr Unicomb was, as earlier noted, a competitive triathlon athlete and a participant in cycling events at high competitive levels. He was also an impressive witness. His description of the incident that occurred whilst he was cycling involving an unexpected confrontation with the boom gate in the closed position in about 2006 and with which he collided is significant evidence. It is consistent with the fact of a visual "ambiguity" operating on him as discussed in the expert evidence provided, of course, that it is accepted that he was riding maintaining a lookout. 294Mr Unicomb, as noted above, said that he had utilised the cycle route in question on over a great many occasions as part of his weekly training regime. 295He said the gate was invariably open. On some occasions, however, when riding to work before sunrise he found the gate closed which caused him to brake harshly with the brakes locking-up causing the bike to skid to a stop. On the occasion in about 2006, after sunrise the boom gate was in the closed position. He collided with it at a slow speed. He said there was a person there (the cleaner with the Club) who had been about to open it but he collided with the gate before he did so. 296Mr Unicomb, perhaps not so coincidentally, was cycling on the morning of the plaintiff's accident. He saw a group of people gathered near the gate which was in the closed position. He saw the plaintiff on the ground moaning in pain. 297He gave evidence in cross-examination as follows: "Q. Is this the occasion you refer to in paragraph 13 of your statement? Or are you talking about some other occasion? A. That paragraph 13 is the occasion that I actually struck the gate. But certainly on other occasions it's just a - it was - it seemed to me to be a very very poorly signposted and poorly thought out measure, which just disregarded one of the main users of the car park, which is cyclists. Which is about a thousand a day. WATSON Q. You became aware it was there. Well, did you see it? A. Slowed down. Q. What did you see? A. A closed gate that I couldn't get through. Q. And what did it look like? A. A closed gate." (T 86:20-39) 298The description given by Mr Unicomb is an account that is consistent with and illustrates a point made by Mr Jamieson: "... that the steel bracing of the beam constructed at such an angle that an approaching rider or driver could easily interpret the angle of the brace to give the impression the boom gate was open .." Report 13 February 2009, Exhibit A at 681. 299It is also consistent with another observation by Mr Jamieson: "... he would have been presented with the presence of a gate which would not look unlike the gate when open ..." Report 12 October 2009, Exhibit A at 812. 300In addition: "The angle of the boom gate ... because of that different angle, it creates a perspective of the gate appearing to be open": (T 178). See also Professor Wenderoth's report, dated 22 March 2010, Exhibit A at 611-612 to the same effect.

(c) Mr Smith's Accident 301It is of some significance that the description of Mr Smith's accident is in many respects similar to that given by the plaintiff. Correspondence written by Mr Smith to the Council included a strong complaint and a call for action to prevent a recurrence. 302In his email sent to the Council on 28 January 2007 (Exhibit A at 47-48) Mr Smith's observation could be said to have been somewhat prescient for it drew to the Council's attention the existence of a risk: "... I can foresee that if additional signing is not put in place further incidents of this nature will occur and possibly with more serious consequences ..." 303Mr Smith was riding along the cycle route at about 6.00am on 23 January 2007. He gave the following account in his evidentiary statement. "18. Upon descending the footpath/cycle path I passed through some virtual wooden posts that prevent vehicle access onto the pathway from the Sailing Club carpark. I continued through the carpark roadway with the Club House to my right. Upon entering the carpark the footpath/cycle path is no longer defined. Ahead of me I could see several broad white marking[s] across the carpark roadway. What I could not clearly see was that the last of these white markings was in fact a boom gate that was closed. The marking[s] that preceded this gate were speed humps and pedestrian crossing markings but the [latter] being the closed gate blended into the roadway and was not helped by the half daylight. 19. The footpath/cycle path was still not defined and I continued towards what I thought was a continuation of the route/course I was on. I was only a metre or two from the closed boom gate when I realised that this white marking was a physical barrier in front of me. I collided with some force into the top bar, which is about 1 metre high. The impact threw me over the barrier. 20. As a result of this incident I received severe injury to my leg. I was actually lying on the ground when a fellow arrived and opened the gate. I was screaming out in pain but he did not even help me. I managed to ring my wife who came to the scene to pick me up. My leg was severely bruised and I thought initially that I had broken it." (Exhibit A at 43-44) 304Mr Smith gave the impression of being both an honest and reliable witness.

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.

The Council's Submissions 345Mr Watson SC for the Council, submitted that the plaintiff collided with the boom gate simply because he was not keeping a proper lookout. 346On 11 April 2007, the Commonwealth Government Records noted that civil twilight occurred at 5.30am with the sun rising at 6.15am. Accordingly, the Council contended that the plaintiff rode his cycle along Riverside Drive in an easterly direction at a time when it was daylight and there was no impediment to his field of vision. It had not been asserted by the plaintiff that the lighting was inadequate or prevented him from seeing the gate. 347The Council submitted that a finding should be made that the reason for the collision was simply that the plaintiff was not looking where he was going. It was contended that the plaintiff's evidence was essentially silent as to anything that might explain how the accident occurred other than by reason of him not looking where he was going and that he did not give any direct evidence of not being able to see or observe the gate. Further, it was contended that he did not give evidence of having been deceived or confused by the layout and configuration into thinking that the gate was open, when it was closed. I will return to examine the validity of these submissions below. 348In cross-examination, it was noted that the plaintiff stated that he had "assumed it was a fence" (T 43) and that, for the first time, he contended that the boom gate appeared as "... another white horizontal line" (T 58). It was submitted that this evidence should be approached with caution. 349It was argued for the Council that there was simply no explanation for the plaintiff not seeing what both experts accepted was an unambiguously clear boom gate (other than as Mr Joy had proposed, that the plaintiff was not looking in that direction). 350It was submitted that the plaintiff had difficulty in identifying what it was that the Council did or did not do and why it is said that it acted unreasonably. 351The Council's installation of the boom gate had been part of a plan to control the use of the carpark at night by "car hoons" - the plan having been devised through consultation with a number of bodies including the RTA, police, the Club and Council as well as local residents. 352In relation to the incident involving Mr Smith on 23 January 2007, the Council's submission was that Mr Lay and Mr Mable had carried out a proper inspection. They found nothing untoward. Mr Smith's incident, it was submitted, had been "a freak accident". Following their inspection it had been concluded that no modifications were necessary. 353The Council relied upon the fact that the audit of the entire cycleway reported on on 4 July 2007 by Jamieson Foley did not produce any recommendation or suggestion as to the boom gate. 354The Council rejected the assertion that the design or configuration of the gate "blended" into the other features of the area, such that one could not tell whether it was in the open or closed position. 355The Council again contended that the gate was observable at a distance. There was no impediment to viewing it. There was no ambiguity as demonstrated by reference to photographs in Exhibit A at 809-810. It was submitted that when closed, the left-hand part of the boom gate was clearly across the roadway and that the contrast was quite distinct. 356There was no need, the Council argued, for the gate to have a retro reflective chevron sign affixed to the gate because it was not an exit but an entrance and Riverside Drive was marked to be one way for vehicular traffic. 357Additionally, the presence or otherwise of such a sign added nothing to the plaintiff's case that it was a "perceptual trap". The issue of the "trap" it was contended did not relate to the supposed inability to see the gate but rather the question of the ability to see the position of the gate. A two-dimensional sign it was argued would not have provided any different visual clue or have been such that the collision would have been avoided. 358Reliance in this respect was placed upon the evidence given by the visual science experts. It was submitted that Mr Jamieson's opinion, insofar as it was to the contrary, simply involved "hindsight reasoning". 359It was submitted that the expert evidence was all one way in supporting the proposition that a sign was unnecessary. 360Reliance was again placed upon the inspection carried out in early February 2007 by Mr Mable and Mr Lay that a sign was not necessary. They were not, it was contended, cross-examined to the contrary. Mr Mable's evidence was that the gate was obvious and visible. 361It was submitted that the plaintiff had not established causation in any event. The plaintiff had the onus of proving any fact relevant to the issue of causation: s 5E CLA. He had the onus of establishing factual causation: s 5D(1)(a) CLA, and scope of liability: s 5D(1)(b) CLA. 362Factual causation is determined, it was submitted, by the "but for" test, that is, "but for the negligent act or omission, would the harm have occurred?". 363It was submitted that the placement of a chevron sign raised the question as to how the plaintiff would have acted differently - how would the sign have conveyed something that would have resulted in the plaintiff altering his conduct. It was submitted that there was no evidence that the sign would have added a significant visual clue that would have alerted the plaintiff so as to avoid the accident. 364It was submitted that there was no support for the proposition that there was a failure by Council to direct cyclists onto the shared cycleway that followed the shoreline by signposting. In this respect the defendant Council pointed to the fact that the plaintiff was a "competitive cyclist" who competed at high levels, that he was on a training ride and that he would not have used the shared cycleway even if the Council had erected such signposts. The plaintiff had always used the route through the carpark area through the boom gate into Fraters Avenue. In other words, had he known of the presence of the shared pedestrian cycleway he would not have used it. A sign therefore would have made no difference to him. 365The boom gate having been readily observable, meant that any risks created by its presence would have been "obvious". This was relevant in to the concept of "an obvious risk" for the purposes of s 5F CLA. A person is presumed to be aware of an obvious risk: s 5G CLA, there being no "duty of care to another person ..." to warn of such a risk: s 5H CLA. 366In relation to the "system" for the daily opening and the closing of the boom gate, the Council again relied upon the events that led up to and which gave rise to the need to redesign the carpark in 2003-2004. 367The gate was of a type and style commonly in use, in particular in the area of the Council. The position of the gate was said to have been an appropriate and a "logical position": Council's Written Submissions at 67. 368Part of the plan for the redesign and use of the carpark, it was submitted, was for the Club to close the gate of an evening and to open it "in their discretion": Council's Written Submissions at [72]. 369The Council had made its decision in this respect, by resolution, noting that, "this is what the club wanted": Council's Written Submissions at [72]. 370No negligence, it was submitted, attached to the making of this resolution by the Council. The system for the control of the boom gate, it was argued, was both "reasonable and practicable": Council's Written Submissions at [73]. The closure of the road was important to the Club for social and traffic reasons and the Club and Council had consulted on the need for the redesign, a matter that had the potential to affect the Club's business. This was why the Club had been so intimately involved in the proposed changes. 371The plaintiff, it was contended, had failed to demonstrate why, applying criteria under s 5B of the CLA its decision/resolution constituted both unreasonable conduct on the part of the Council and actionable negligence. 372It was submitted that the plaintiff's case appeared to involve the proposition that there was a "mandatory requirement to open the gates at 5.00am, failing which liability attaches to the Council": Council's Written Submissions at [75]. 373This, however, it was argued, "ignores the factual material above" and the very words contained on the plan, ie "at the discretion of the Club": Council's Written Submissions at [76]. 374Accordingly, it was submitted that there was no basis for a finding of causative negligence by the Council. 375As noted in the discussion of the events leading up to the plaintiff's accident, the Council pursued in cross-examination of the plaintiff and in submissions what it termed the fact of the plaintiff having gone the "wrong" way through the boom gate access contrary to the "No Exit" signs and the directional arrows on the roadway. This, it was contended, gave rise to a dangerous course chosen by the plaintiff and for which he alone was responsible. 376As also noted in the discussion above, the Council submitted that the plaintiff had alternatives open to him in leaving Riverside Drive - either the foreshore pedestrian/cycle pathway or the spiked exit for motorists. The plaintiff's failure to choose either alternative meant that the plaintiff should be held responsible for the accident. 377The Council also disputed the plaintiff's case based on what was referred to as foliage obstruction or the 'clutter' theory (the latter involving various markings across the roadway). The submission was that matters raised in the oral evidence and the report of 13 February 2009 by Mr Jamieson as to impairment of the visibility of the boom gate of a bicycle rider travelling in an easterly direction, did not have support in the evidence. It was submitted that Mr Jamieson's evidence extended no higher than "it looks a bit cluttered to me" (T 184), and that Mr Joy, it was noted, had disputed this (T 185). 378It was further submitted that there was no evidence that suggested that the markings of the speed humps and the crossing were other than essential. Reference was made to the specific measurements in terms of the location of the speed humps one to the other, and the crossing. In relation to the foliage obstruction theory, it was submitted that the plaintiff had never suggested this as having been a relevant matter and further that the photographs taken on 14 April 2007 show the area was clear of foliage. 379In relation to Mr Jamieson's assertion that a safety audit on the operation of the boom gate should have been performed, the Council relied, inter alia, upon the fact that Mr Mable and Mr Lay had conducted "a specific inspection" of the carpark in early February 2007. The Council was also conducting an overall audit of the entire cycleway which had not been completed because of Mr Mable's illness in March and April 2007.

Contributory Negligence 380The Council submitted that the plaintiff was negligent and entirely responsible for his injuries. 381The submission was that contributory negligence should be assessed at 100%: ss 5R and 5S CLA. 382It was submitted that the plaintiff could and should have used what was termed the "prescribed exit" as other cyclists had done.

Part 5 of the Civil Liability Act 383The Council submitted that, in any event, any liability that might arise could not arise by reason of Part 5 of the CLA as the Council had the benefit of those provisions. Reliance was placed upon s 41(d) of the CLA in that respect. 384I will deal separately with the provisions under the CLA below - See Part G

Preliminary 385I have referred in the earlier discussion to the evidence that established that the cycle route followed by the plaintiff to the point of collision was a recognised high traffic cycle route for public use. That part of Riverside Drive that led up to the boom gate on the evidence had been regarded as or used as an extension of the cycleway that led to it. That had been the case for many years prior to 2004. It remained so after the Council constructed the boom gate in 2004. Those facts were well-known to Council and others. For the boom gate solution adopted by Council to serve the interests of residents, the Club and cyclists a regulated system for its safe and effective operation was required. It is in that context that the issues of the defendants' duty of care and breach of duty and causation arise for consideration.

(i) Factual Matters 386Factual matters subjacent to the issues of primary negligence alleged against the Council and the defence case in relation to it include the following: i. The evidence of the daily and frequent use by cyclists of the area of the boom gate as an exit point before and after 2004; ii. Council's knowledge of that fact; iii. The need for the boom gate to be placed in the open position for early morning cyclists. iv. The arrangement made between the Council and the Club for the daily operation of the boom gate. 387The defence case advanced on behalf of the Council was founded upon the following premises: (1) The boom gate was not an exit. The plaintiff's use of it was contrary to "no entry" signs and directional arrows. (2) There were alternatives open to the plaintiff for leaving the extended cycleway (Riverside Drive) being the one-way spiked entrance and/or the foreshore recreational pedestrian/cycleway. (3) The boom gate when closed was an obvious structure. The plaintiff's collision is to be explained upon the basis that he was not maintaining a lookout. 388The Council additionally relied upon the following: (i) The design and construction of the carpark modifications in 2004 (including the boom gate) was undertaken in consultation with police, the RTA, residents and the Club for the purpose of counteracting the "hoon" problem. The plaintiff's case was not based upon allegations of negligent design or construction of the boom gate. (ii) Responsibility for the operation of the boom gate was "delegated" by Council to the Club. (iii) Inspection following Mr Smith's accident was carried out by Council officers. No defects or danger were identified in the boom gate structure. (iv) The Council retained Jamieson Foley in 2007 to conduct an audit that included the carpark area. No recommendations for change in the operation of the boom gate were made by Jamieson Foley. (v) There were no facts capable of establishing a breach of duty by the Council or its officers concerning the operation of the boom gate.

(ii) Duty of Care: Some "Salient Factors" 389The modifications to the carpark area were consequent upon a decision of the Council made in 2004. The operation of the new boom gate in terms of opening and closing it each day, may, of course, be seen as involving an elementary function to be performed. 390The circumstances, however, that were relevant to the performance of that function must be considered. They involve a degree of complication arising from the multi-purpose function of the carpark area by day and night into which the boom gate structure and operation was introduced in 2004. That area served at least three functions:

• Its function as a carpark;
• Its function as an area in which Club activities were conducted by day and by night;
• Its function as an area over which there was a high level of cycling activity each day. 391Plainly co-ordination was integral to the regulation of such disparate uses or activities. On the findings and conclusions I have set out earlier, the Council was the entity with the responsibility for ensuring appropriate co-ordination. It constructed the boom gate, and was at all relevant times the entity that retained control over it and its operation. 392The timing of the morning opening of the boom gate was directly relevant to cyclists' activities. Any system ensuring a timely opening of the boom gate in the interests of ensuring a safe passage for cyclists, required the fixing or setting of a daily opening time. 393The terms of the Council's resolution for the 2004 carpark modifications reflect the realisation that the boom gate needed to be opened at a very early hour - hence the reference to the opening time as being 5.00am. However, in circumstances earlier discussed, ultimately that time was conditional upon a discretion conferred upon the Club. The discretion was not in any way conditional upon stated conditions or on any particular circumstances. It was, and remained throughout, a broad and an open-ended discretion as to the time for opening/closing the gate as the result of representations that had been made on behalf of the Club to the Council. 394The Club, under the arrangement, was not instructed or obliged to ensure that the boom gate was opened at a specified fixed time. In those circumstances the arrangement carried with it a risk that the gate would not be opened at 5.00am or between 5.00am and 6.00am. On the evidence that risk or failure materialised from time to time. 395In these circumstances it is necessary to determine whether the Club had a duty of care to cyclists likely to use the boom gate as an exit and if so, the scope of the duty. 396In Caltex Refineries, supra, Allsop P (as his Honour then was) referred to the "multifactorial approach" in assessing whether a duty of care arose in a novel circumstance or category of case. This approach, the President observed, recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. The approach, his Honour stated, required not only an assessment of foreseeability, but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity: at [100]. 397Allsop P also referred to the High Court's rejection of its previously enunciated general determinant of proximity, the two-stage approach based on reasonable foreseeability and the expanded three-stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605. His Honour then stated at [102]: "This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasors by references to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury." 398The President then listed the "salient features" following which, his Honour observed, that there was no suggestion in the cases to the effect that it is compulsory in any given case to make findings about all of the features. Nor should the list be seen, his Honour stated, as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. The President identified the salient features as including the following at [103]: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. 399On the facts and circumstances established in evidence in the present case, the "salient features" of particular relevance include those identified in sub-paragraphs (a), (b), (c), (d), (e), (g), (k) and (m).

(iii) Failure to Provide a Safe System 400The control of access to the carpark was referred to at an early stage in the discussions for a redesign of the carpark area. As earlier noted, on 9 February 2004, Mr Jarvis, Manager of Transport Planning for the Council, sent an email to Mr Karl Mezgailis in which he suggested that the Council's existing contractors be allocated the responsibility for manning the boom gate. For convenience I reproduce the relevant paragraph: "The situation is less than satisfactory for the residents. All they want is the car park closed after club hours. We already have a routine operation to close and open the numerous beachfront car park gates. I believe we should extend the task to this car park, with arrangements for the club to also operate the chain locking when necessary." (Emphasis added) (Exhibit A at 351) 401There is no evidence that the Council considered this recommendation. 402In relation to the Council's control and operation of boom gates in other carparks in the municipality, Mr Lay, as earlier noted, stated in evidence that the Council engaged independent contractors under a formal contractual arrangement: "Council has about 20 car parks near the waterfront, and Council have gates for those car parks. And the Council have private security personnel to close and open the gates." (T 109:5-15) 403Mr Lay confirmed that the security personnel engaged by Council to undertake that function were engaged by Council as contractors (T 109:15-20). Mr Woodcock was identified as the Council officer who was responsible for the activities of the contractors engaged for the routine operation of closing and opening the beach carparks (T 109:30-40). Mr Jeremy Morgan took over from Mr Woodcock upon Mr Woodcock's resignation or retirement (T 109:40-45). 404Mr Lay emphasised that the carparks for which security personnel were engaged were not, as in the case of the Riverside Drive, located adjacent to club premises. 405It appears that the unpredictability as to when Club functions/events finished at night was the principal reason that the Council agreed to the Club having a broad discretion as to when it could close the boom gate although the discretion was wider than that as it also involved a discretion as to its daily opening. 406In relation to the need for a reliable system that would safeguard cyclists, there was no evidence that it would have been impracticable for the Council, as with its other carparks, to arrange for the opening of the boom gate to have been undertaken by Council's private contractors on a time schedule. Under such an arrangement the Club would have been able to retain the right to close the gate at night at its discretion. The benefit of engaging security contractors to open it each morning would have been that the Council's contractors would have had a contractual obligation to ensure that the boom gate access was opened each day at a specified or appointed time. That would have served the interests and requirements of all relevant parties - Council, residents, the Club, cyclists and other users of the cycleway. 407The fact that there was an alternative system that would ensure that the boom gate was opened by 5.00am or between 5.00am and 6.00am each day is a factor that bears upon the Council's scope of duty and the issue of breach of duty. Plainly, the daily operation of the boom gate, being a fairly elementary function, required a simple, but nonetheless a regulated system, one that ensured that the daily activities of cyclists, pedestrians, drivers and residents were properly co-ordinated and protected. 408The scope of the Council's duty of care, in my opinion, required it to appropriately consider a method or scheme such as that which Mr Jarvis had recommended. That would have reconciled and met the safety interests of all users. 409Although the Council was not in the position of, vis-à-vis Riverside Drive, an occupier of private premises, it was the local Council vested with authority and control over the roadway. It had the power to install road control signs and structures (including the boom gate itself). An occupier of premises may be held responsible for the acts or omissions of third party contractors (see below). Similarly, a local government instrumentality may be responsible for engaging or relying upon a third party under an arrangement where that party fails to properly perform a function for which the council has responsibility. 410In Bevillesta t/as Top Ryde Shopping Centre v Liberty International Insurance Company [2009] NSWCA 16, the Court of Appeal considered the issue of the liability in tort of Bevillesta, the owner and occupier of a shopping centre. In that case Hodgson JA (with whom Gyles AJA and Nicholas J agreed) observed: "53 There is no doubt also that this occupier's duty of care is 'delegable', in the sense that it may be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming onto the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability. 54 In my opinion, a corollary of this is that a person engaged in this way may come under a duty of care to persons coming onto the property. If that person knows or reasonably should have known that he or she has been engaged to keep the property safe for persons coming onto it (and the exercise of reasonable skill and care by the occupier would require that this be conveyed to that person), then in my opinion the person so engaged would appreciate that if he or she does not exercise reasonable skill and care, there is a risk of injury to persons coming onto the property; and the person's understanding of that engagement and risk gives rise to a relationship with persons coming onto the property sufficient to support a duty of care." (emphasis added) 411The Council, in my opinion, was under a duty of care to the regular users of Riverside Drive, including, cyclists. The duty was to take reasonably practical steps to ensure that the boom gate once constructed would not operate as or become a hazard or a trap to cyclists. The Council's duty of care, in my opinion, arose from the following circumstances. (1) The access way to Fraters Avenue on which the boom gate was constructed was the route in frequent use by cyclists for many years both before and after 2004. (2) In particular, subsequent to its construction that access through to Fraters Avenue continued to be in use on a daily basis by cyclists, including by sporting cyclists or cyclists in training, a fact that was well known. (3) Following the construction of the boom gate there were no practicable alternative exit points for cyclists from Riverside Drive to Fraters Avenue. (4) There was a foreseeable risk that if the boom gate on occasions was not opened before cyclists commenced to use the cycleway, it could be a hazard. The Council knew or ought to have known of this risk by the date of the plaintiff's accident. 412Whilst for the most part the boom gate was opened at or about 6.00am thereby providing an unimpeded and safe use of the area as a cycleway route, on the evidence there were a number of occasions when that did not occur. This appears to have occurred when the Club's cleaner was late or unavailable and coincided with earlier collisions involving highly experienced and competent cyclists, Messrs Smith and Unicomb. Those incidents are at least consistent with system failures under the arrangement between the Council and the Club. 413That arrangement, as earlier noted, was an informal one. It did not impose terms of engagement placing contractual obligations on the Club. There was no contractual obligation in the Club to ensure that the boom gate was opened at or by any specified time. It was one that favoured the Club by providing it with a broad discretion. 414The failure by the Council to take appropriate action to protect cyclists by (i) putting in place a system that ensured the gate would be opened at a specified time each day, (ii) taking steps, as it did after the plaintiff's accident, to reduce the risk of accident by increasing the visibility of the boom gate, and (iii) providing a safe alternative access to Fraters Avenue, in my opinion, constituted failures by it to exercise reasonable care to avoid foreseeable injury to cyclists/users. 415In relation to (iii) above, it is noted that the Council made a number of significant changes to the configuration of the shared pathway which included a "funnelling" of cyclists away from the boom gate area with signs/directional arrows and constructing an exit for cyclists to reach the roadway. The plaintiff estimated the new exit ramp to have been 30 metres past the gate. After his accident, he said he took that route to the public road, not the boom gate. His evidence in cross-examination was as follows: "Q. And if you cycle in this area now of the car park, do you go out through the boom gate, as it were? A. Not any more, no. They've changed it significantly. Q. When did you change your means of travel? A. The first time that I went back to that location on my bicycle, I noticed that they had installed - well, made changes which made it obvious for cyclists who travel in a different direction. Q. Did that mean you didn't go out through the boom gate? A. I didn't - no, that's correct. I no longer used that egress. Q. Did that mean you used the cycleway? A. Since, yes. Q. And I was going to ask you about cycleways, are they put there to try and keep cyclists safer? A. They would be put there to keep some cyclists safer, yes, those that are travelling, you know, at very slow to moderate speeds. Q. You use it now, do you? A. Only-- Q. In your training sessions? A. Only to travel the 30 metres past the gate, so I can get back onto the roadway. Q. Because there is an access a little further up the cycleway? A. Yes. Q. Back down to the road surface? A. Yes. That had been recently installed." (T 43:39-T 44:20) 416On the issue of breach of duty, it is noted that the changes made by the Council after the plaintiff's accident including the addition on the gate itself of additional markings to enhance its visibility and the provision of an alternative route and exit, establishes the availability of reasonably practical alternatives for co-ordinating cyclist and other activities, which would have had the effect of removing the risk of accident/injury that materialised in the plaintiff's case.

Section 5D Causation - General Principles 417Section 5D(1) of the CLA treats factual causation and scope of liability as separate and distinct issues: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [43] and [55]; Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]. 418The "but for" test applies to the issue of factual causation - but for the negligent act or omission would the harm have occurred? Was it more probable than not that but for the (a) absence of a standardised or regulated system that required the boom gate to be opened at a specified time before 6.00am and/or (b) but for the failure to enhance the visibility of the boom gate, as by signage or markers, and/or (c) but for the failure of the Council to implement the changes to the cyclists' route, made subsequent to the plaintiff's accident, the accident would not have occurred? 419The plaintiff is required to establish that the Council's negligence was a necessary condition of the occurrence of the plaintiff's harm, that is a condition that must have been present for the occurrence of the harm. Where a defendant's negligent act or omission is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm, this will meet the test of factual causation within s 5D(1)(a): Strong v Woolworths Ltd, supra, at [20]. 420The Council's acts and/or omission, and those of the Club, may in combination or together give rise to or constitute the relevant set of conditions in the analysis of factual causation. 421In the present case, for the reasons discussed below, I have concluded that the Council's negligence was a necessary condition for the occurrence of the harm suffered by the plaintiff. 422Proof of a causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred: Strong v Woolworths at [32], the onus being upon the plaintiff: s 5E CLA. 423The discussion that follows further examines both that issue and the "scope of liability" issue under s 5D(1)(b) as it affects the Council, including the Council's position in terms of its power or authority over the operation of the boom gate.

The Power and Authority of the Council 424In oral submissions, reference was made by Mr Watson for the Council to the High Court's decision in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22. In that case the appellant council had engaged an independent contracting company, Roan Constructions Pty Ltd (Roan Constructions), to perform work on a footpath. A finding had been made by the trial judge that an employee or employees of Roan Constructions had placed carpet over a telecommunications pit. The respondent walked across the carpet and fell into the pit suffering injury. 425The High Court determined that the council did not owe pedestrians a non-delegable duty of care to ensure that reasonable care was taken to avoid injury with respect to the work performed by the contractor which it had engaged for the project. 426There had been no suggestion of any fault in the choice of Roan Constructions as a contractor. The liability of a roads authority to road users, it was held, did not fit appropriately into the kinds of relationship that had been accepted in Australia as giving rise to a non-delegable duty of care. Accordingly, on the facts of the case, there was no basis for the finding of liability in the council. 427It was the Council's submission that the decision in Leichhardt Municipal Council was relevant to liability alleged against the Council in the present case. There is, however, an important factual distinction. Here, the Council did not engage the Club as a third party contractor to perform work under a formal contract. As discussed earlier, the Council, without imposing binding obligations on the Club, accommodated its requirements under the informal arrangement with it for the opening and closing of the boom gate. 428Without a contract having been entered into between the Council and the Club as principal/contractor, there were no contractual obligations provided for or imposed on the Club in respect of the operation of the gate. 429The arrangement bore some similarities to a licence given by the Council to the Club to perform the task of closing and opening the boom gate with a discretion conferred on the latter as to the times that it would do so. 430The result or outcome of this informal arrangement was that the Council retained and did not delegate its responsibility to the Club as a contractor as had occurred in Leichhardt Municipal Council, supra. By at least the time of the plaintiff's accident the Council was on notice that under that arrangement the boom gate had not always been placed in the open position as required. Mr Smith's accident was a demonstration of that fact. Although the Council said that it investigated Mr Smith's accident it did not inquire into the circumstances in which the boom gate had not been opened or the efficacy of the arrangement it had with the Club or any perceptual difficulties that could cause confusion for cyclists. The result was that the risk that the boom gate would again in the future become a potential or actual hazard to early morning cyclists remained. 431The arrangement between the Council and the Club took into account the interests of both the Club and of residents. However, as earlier noted, there was no evidence that the Council in 2004, or subsequent to Mr Smith's accident up to the time of the plaintiff's accident, had in the interests of cyclists considered the need for a more reliable system or method that would ensure that the gate would be opened in accordance with a predetermined timetable. Nor did the Council consider either before or after Mr Smith's accident the need for modifications or safeguards by way of warnings or other measures that were put in place after the plaintiff's accident. The only action taken was that Mr Mable spray-painted or hand-painted some directional arrows as depicted in photographs included in Exhibit A. 432Submissions were made on behalf of the Council on what was referred to as the plaintiff's "notice" or "warning" case - a reference to the plaintiff's pleaded contentions: (i) That the Council ought to have provided warnings as to the presence of the gate being in the closed position; (ii) A failure by Council to have placed directional markings on the roadway as the Council did after the plaintiff's accident. 433In relation to (ii), the Council submission was that the plaintiff said in evidence that he would not have followed the path indicated by the directional arrows as he was intent on following the route he was proposing to take, namely, through the access with the boom gate (T 215). He gave his reasons for that. On that basis, the Council submitted, the plaintiff has not established a causal breach through a failure to provide an alternative and/or directional markings as done after the plaintiff's accident. 434However, the plaintiff's evidence was that after the Council's modifications to the foreshore shared pedestrian/cycle path including the construction of a new exit ramp from the pathway to the roadway, that he had changed his customary route to use the new facility: See paragraphs [415] to [416]. 435There was, in my opinion, a sufficiently direct causal link between the Council leaving the opening of the boom gate in the hands of the Club, in particular after becoming informed of the circumstances of Mr Smith's accident, under its informal arrangement with it - that arrangement having the potential to fail as it did on the day of the plaintiff's accident. 436The Council additionally failed to review and examine the arrangement it had with the Club in order to ensure that the boom gate would be manned and operated in accordance with a system that would ensure the safe passage for cyclists. Had it properly investigated Mr Smith's accident it would have become apparent, if nothing was done, that the risk of a re-occurrence of a similar accident remained. 437It is of some importance in this respect to note the particular matters which Mr Smith raised and drew attention to in his written communications with the Council. 438Mr Smith's email to the Council on 28 January 2007 (see statement in Exhibit A at 47-48 reported his accident as having occurred at approximately 6.00am. He said that having left his home and travelled across Captain Cook Bridge and along the footpath/cycleway, he came to the carpark. He said as he rode he could see several broad white markings across the carpark roadway, adding: "What I could not clearly see was that the last of these white marking was in fact a boom gate that was closed. The markings that preceded the gate were speed humps and pedestrian crossing markings but the later (sic) being the closed gate blended into the roadway and was not helped by the half daylight." 439Mr Smith a little later said he continued towards what he thought was a continuation of the route/course: "... I was only a metre or two from the closed boom gate when I realised that this white marking was a physical barrier in front of me. I collided with some force with the top bar which is about 1 metre high. The impact threw me over the barrier." 440Mr Smith's statement then recorded: "A short time after I hit the barrier and was laying on the ground a couple of passers by came to my assistance, one of whom stated that [she/he] had seen a similar incident [that] had occurred before in the very same location. I do not have details of that person." 441Mr Smith then set out his reasons for reporting his incident to the Council, including: "1) ... 2) To report what I believe to be inadequate signing for pedestrian/cyclists to clearly define and point to where the footpath/cycle path restarts only metres from and to the right of the boom gate. I can foresee that if additional signing is not put in place further incidents of this nature will occur and possibly with more serious consequences. 3) ..." 442In his evidentiary statement in these proceedings (Exhibit A at 44), Mr Smith stated: "22 Shortly after my email of 28 January 2007 I received a phone call from a person who identified himself as an employee of Rockdale City Council. He said he was an engineer. In fact he said he was 'an engineer from the Council...'. He told me actually that he was down at the accident site and he asked me what happened. I then related to him precisely what I have referred to in my letter to the Council of 28 January 2007. This engineer whilst speaking to me on the telephone acknowledged what I was saying and said words to the effect 'I can see what you mean...'. The significant thing was that he didn't dispute my version of what occurred as I was telling him quite accurately what had happened. I complained to him that there was no proper signage or warning of the presence of the boom gate and in particular that the boom gate was closed. He acknowledged this. 23 The conversation was left on the basis that he would do a report for the Council. 443Following the Council's letter of 16 February 2007, Mr Smith sent a further email stating, inter alia: "I thank you for your quick response to my initial report and I understand the contents of your letter and was pleased to hear that the Council plan to conduct an audit of the signage and line marking for the length of the shared path and cycleway at the incident location which is due to be completed this month, March 2007. However, your letter indicates that the Council occasion this incident to misadventure rather than any shortfall in clear signage etc that the Council would be responsible for installing and maintaining. This decision being made before the conclusion of the audit." (Exhibit A at 64) 444In Council's further letter of 23 March 2007, the Council, inter alia, stated: "We firmly believe that our asset inspection and maintenance systems satisfactorily meet the duty of care that we owe to the people that use them. We do not have any records of a similar incident occurring at the site. We note from our original correspondence that, at the time of the incident, it was 'breaking daylight and visibility was impaired.' We also note that you 'collided with some force into the top bar' and that the impact threw you over the bar. This would indicate to us that you were travelling at a reasonable speed when the impact occurred. It is our view that you failed to take reasonable care for your own safety by failing to ride with appropriate care and attention for the conditions at the time. We believe that a combination of your speed and the conditions of breaking daylight caused your injuries rather than any active negligence on the part of Council. We trust that this information is of some assistance to you. If you would like to discuss the matter in more detail, I can be contacted on the number listed above." (Exhibit A at 65) 445Mr Smith's first email reporting his accident raised an issue as to the visibility of the boom gate prior to the accident. He set out what to him appeared to be the or an explanation for its relative lack of visibility in the closed position until he was a metre or so from it. His suggested explanation concerned the ambiguity or apparent confusion between the white top bar of the gate and other road markings. Whatever were the factors that in fact contributed to Mr Smith's failure to see the gate in the closed position, the issue of visual ambiguity or perception was clearly brought to the Council's attention. His report, as noted above, also referred to persons coming to his assistance having been aware, according to their account, of a similar accident in the same location. 446The issue of possible perceptual ambiguity as raised by Mr Smith with the Council has significance in at least two respects. The first is that it brought to the Council's notice that there may have been a difficulty in a cyclist's perception of the boom gate if left in the closed position. Second, a proper or meaningful consideration of the matter would have required a proper examination of his claim as to a lack of visibility or confusion before the Council would have been in a position to dismiss Mr Smith's observations as a relevant risk factor. 447The evidence as discussed above establishes that the Council did not investigate Mr Smith's contention as to confusion or ambiguity associated with the visibility of the closed boom gate. The tenor of Mr Smith's letter was, inter alia, one of concern that similar accidents could occur he having observed that passers-by had said that they had witnessed a previous incident of a similar kind. 448Mr Smith's statement in relation to the Council's letter of 23 March 2007, Annexure "E", stated: "On 23 March 2007 I received a further letter from Rockdale City Council and a copy of this letter is annexed hereto and marked "E". I was very disappointed with this letter as once again it was suggesting that it was my fault that the accident occurred. In relation to speed it is my estimate I was travelling about 25 to 30 kilometres an hour when I hit the boom gate. I was, in my view keeping a proper lookout but I can say that having regard to the position of the boom gate and the fact that it was closed you just couldn't see it nor expect it to be there in the sense that it was closed." (Exhibit A at 45) 449In my assessment, the facts established in evidence demonstrated a causal nexus between the Council's arrangement with the Club and its failure to implement a safe system for the boom gate operation. 450The evidence of the plaintiff, the evidence of Mr Unicomb and the evidence of Mr Jamieson which I accept as to the lack of visibility of the boom gate when closed, provide a basis for concluding that had the Council, following Mr Smith's email report of 28 January 2007, properly investigated the visibility issue concerning the boom gate when closed, there is a likelihood that the perceptual difficulties which the evidence of the above witnesses establishes would have become apparent. Subsequent modifications made by the Council to increase the visibility of the gate, and the other measures adopted by it after the plaintiff's accident, is evidence of what could have been done, there being no evidence of inordinate expense or other disadvantage in putting such measures in place: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, at [94]. 451The safeguards that would have removed the risk that became evident after Mr Smith's accident include: (i) Replacing the existing arrangements with the Club with similar contractual arrangements that the Council had with its existing contractors whereby the latter would have the responsibility of opening the boom gate each morning by a set time. (ii) Measures, as were later taken, to enhance the visibility of the boom gate thereby reducing or removing the visual trap. (iii) Replacing the exit for cyclists in accordance with the measures adopted by the Council following the plaintiff's accident. 452The evidence, in my assessment, strongly supports the conclusion that had the Council implemented the measures referred to in (i) or (ii) and/or (iii), it is, at the least, likely that the same would have prevented the occurrence of the plaintiff's accident.

The Civil Liability Act 2002 453Claims for personal injury damages are governed by the CLA subject to the exclusionary provisions of Pt 1. Section 5B of the CLA is in the following terms: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 454Section 5B, "General principles," is contained within Pt 1A, Div 2, "Duty of care", and is directed to whether a found duty of care has been breached. This is apparent from the terms of s 5B itself, which substantially reproduces the test for breach of duty as stated in Wyong Shire Council v Shirt [1980] HCA 12 at [13]-[15]; (1980) 146 CLR 40 at 47 (per Mason J); Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [33] (per Beazley JA). 455In Wyong Shire Council v Shirt, Mason J observed that, in the context of breach of duty, foreseeability of the risk of injury and the likelihood of that risk occurring were two different things. 456The initial question is whether the defendant Council owed a relevant duty of care to the plaintiff. 457In the present case, the duty of care upon the defendant Council, was to take reasonable care to avoid foreseeable risks of injury to persons in the class to which the plaintiff belonged. The relevant class included cyclists - recreational and/or sporting - who were the early morning users of an established cycle route, including the Riverside Drive extension. That duty falls to be measured having regard, amongst other things, to persons who exercise reasonable care for their own safety: Romeo v Conservation Commission (NT) [1998] HCA 5 at [122]-[123]; (1998) 192 CLR 431 at 478-479 and restated in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330. 458The relevant circumstances that support the contention that the defendant Council was under a duty of care owed to the plaintiff include the following: (1) Riverside Drive, at the time of the accident, was under the control of the Council. (2) To the knowledge of the Council it was common practice for cyclists using the cycleway to utilise the boom gate access/exit on Riverside Drive at daybreak each day. (3) Having constructed the boom gate to solve the "hoon" problem it was necessary for the Council to ensure that the boom gate was operated on a basis that would not cause as an unexpected hazard to cyclists who regularly used the cycle route. (4) Council officers were aware of cyclists, before and after the boom gate installation, exiting the cycleway - Riverside Drive - through that access point. The arrangement whereby the responsibility for the manning of the gate was left to the Club's cleaner carried the foreseeable risk of the boom gate being a hazard or obstruction in the event that the cleaner failed or was unable to attend. (5) That risk materialised and came to the Council's attention with Mr Smith's collision with the boom gate two to three months prior to the plaintiff's accident, the Club's cleaner having failed or been unable to attend to operate the gate. 459The scope of the Council's duty of care is to be determined prospectively, being a duty of care being owed so as to prevent harm from a "foreseeable risk of injury": Wells supra, at [48] per Beazley JA. As noted by Gummow J in Roads and Traffic Authority of NSW v Dederer at [59], it is only by identification of the risk that the assessment of the reasonable response to the risk can be assessed. 460The Council, having constructed the boom gate, had a responsibility to take reasonable care to ensure its use was co-ordinated so as to deal with the "hoon" problem by night, without creating a risk to cyclists by day. 461In a case such as the present where the negligence alleged consists of a failure to take precautions against a risk of harm by virtue of s 5B of the CLA it is necessary that the three preconditions in sub-section (1) of that section be satisfied: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 per McColl JA (Campbell JA and Sackville AJA agreeing) at [173]. 462The boom gate was of a configuration that if left in the closed position when it would be expected to be open, a cyclist travelling at speed could collide with it and foreseeably suffer harm. That is what had occurred in Mr Smith's case. In the plaintiff's case those circumstances recurred to produce a similar result.

Provisions of the Civil Liability Act 2002: duty of care and recreational activities

(a) Sections 5F and 5G: "obvious risk" 463Sections 5F and 5G are in the following terms: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 464The risk of a cyclist colliding with the boom gate unexpectedly left in the closed position was not, in my assessment, an obvious risk of cycling. Whether a risk is obvious is to be determined objectively having regard to the particular circumstances in which the relevant plaintiff was injured: Fallas v Mourlas [2006] NSWCA 32. 465I do not consider that the risk that materialised in the plaintiff's accident can be said to have been an obvious risk of cycling. The plaintiff was one of a number of highly experienced cyclists who regularly used the cycling path including the Riverside Drive exit to Fraters Avenue. Whilst the gate was an observable structure, for reasons earlier stated, the plaintiff's evidence and Mr Jamieson's evidence confirms that left in its closed position the gate involved a visual hazard. In Professor Dain's terms the plaintiff's expectation of that situation was "zero". The relevant circumstances which prevented it from constituting an obvious risk included the structural configuration of the boom gate, its placement or location at an oblique angle, the lack of notice or warning of it being left closed and the other circumstances identified by Mr Jamieson. These, in my assessment, support the expert conclusion that the plaintiff, on his approach, unknown to him, was facing a "perceptual trap" and not an obvious or patent risk.

(b) Section 5B: Whether a Reasonable Person would have taken Precautions against a Risk of Harm 466As noted above, section 5B(2) is in the following terms: In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 467In determining the issue under s 5B(2) it is necessary to avoid conflating the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it: Waverley Council v Ferreira [2005] NSWCA 418 at [47]. 468Accordingly, it is necessary to weigh the factors set out in s 5B(1) against those in s 5B(2) (to the extent, of course, to each being applicable to the particular circumstances of the case). 469The probability as to whether a reasonable person in the position of the Council would have taken precautions against a risk of harm is to be considered objectively by reference to the particular circumstances of the case including the cost and degree of difficulty of removing the risk. In my assessment, the evidence does not support the proposition that the factors set out in s 5B(2) outweigh those in s 5B(1). 470It has been earlier noted that the volume of cycle traffic passing through the boom gate entrance/exit existed at significant levels both before and after 2004. Given that fact, the need to ensure that the gate was not left so as to form an unexpected obstruction was apparent. The probability of harm being caused to a cyclist if he/she collided with a boom gate if left closed at about 6.00am was high. 471This is apparent from the fact that, left closed, the boom gate could visually trap a cyclists. This is reflected in the fact that three highly experienced cyclists, who were all accustomed to the route leading to the gate and who all participated at a high level of competitive cycling, were unable to avoid colliding with it when closed.

(c) Section 5K and Section 5L: Dangerous Recreational Activity 472The Council relied upon the provisions of ss 5K and 5L of the CLA. These provisions establish that liability for harm suffered from an obvious risk of a "dangerous recreational activity" as defined does not arise. 473Section 5K and 5L are in the following terms: 5K Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk. 474The Council relied upon s 5K of the CLA in support of a submission that the plaintiff was engaged in a "dangerous recreational activity within the meaning of that section (defined as "a recreational activity that involved a significant risk of physical harm"). The submission was in terms that cycling, especially cycling through the boom gate access with "no entry" signs in place, and against the directional arrows at speed, carries "a significant risk of physical harm" (T 229:1-5) 475The Council's initial approach was to cross-examine the plaintiff on the basis that cycling per se was a dangerous recreational activity. That proposition was subsequently considerably narrowed in later submissions for the Council, in the following terms: "We would submit that it is plain as day that cycling, especially in this way, easing through the entrance at speed against the signs carries with it a significant risk of physical harm." (T 229:1-5). See also submissions at T 229:30-45. 476I have earlier referred to the evidence concerning the significant level of daily usage by cyclists of the boom gate access for the purpose of reaching Fraters Avenue and that this had become part of an established cycling route. I will deal with the points raised in the abovementioned submission for the Council: (i) Within the context of the carpark facility, the evidence established that the "no exit" signs were directed to the drivers of motor vehicles who had parked in the carpark area and were leaving it. The evidence was that the signs were intended to indicate to motorists of exiting vehicles that they were to proceed through the one-way spiked access adjacent to the boom gate access and not through the boom gate itself. (ii) As noted above, both groups of cyclists and individual cyclists, to the knowledge of the Council, used the boom gate access over several years as a logical extension of the cycleway. There were no alternative practical points of exit from the carpark area into Riverside Drive for cyclists. (iii) The plaintiff's estimated speed of 25-30 km/h was accepted as a reasonable one. He had necessarily slowed the pace of his cycle in order to negotiate the speed humps. That was not an excessive speed. (iv) There was no suggestion in the evidence that the plaintiff, a highly trained cyclist, had become distracted whilst cycling down Riverside Drive toward the boom gate. His evidence, as I have earlier stated I accept, was to the effect that he was looking ahead as he approached the boom gate access, in particular to ensure that there was no oncoming traffic on Fraters Avenue. (v) There was no evidence that the plaintiff engaged in any form of risk-generating activity during the course of his cycling up to the boom gate. (vi) There was no evidence of any risk from vehicular traffic (other than cyclists) entering through the boom gate exit at 6.15am on the day of the accident. 477The plaintiff was cross-examined on the "no exit" signs. It was put to him that he was disobeying road rules. He rejected the proposition on the basis that he had held the opinion, based on the long-standing use of the boom gate access to reach Fraters Avenue, that the signs and directional arrows were in place to direct motor vehicle traffic not cyclists. When it was put to him that he deliberately disobeyed the "no exit" signs, he responded: "A. No I wouldn't concur with that. I was following the cycle route that thousands of other cyclists do." (T 49:6-12) 478He also added: "As far as I know, it was the only means by which I could get to the road." (T 49:40-45) 479On this question I refer to the earlier discussion above as to the absence of alternative practical exits. 480There was no evidence of the presence of circumstances rendering the plaintiff's cycling a dangerous recreational activity (apart from the fact that the boom gate had been left closed when it should have been open). In particular, there was no evidence of the presence of motor vehicles posing a risk to the plaintiff or of other circumstances rendering the plaintiff's recreational activities dangerous within s 5K. 481On the above bases I do not consider that the plaintiff at any time up to the point of collision was engaged in a dangerous recreational activity within the provisions of ss 5K and 5L. I do not consider that those provisions have application to the circumstances arising in the present case.

(d) Section 42 Provisions of the CLA: Principles Concerning Resources etc of Public Authorities 482The Council relied upon the provisions of s 42 of the CLA that apply "principles" as set out in sub-paras (a) to (d) for the purpose of determining issues of duty of care and breach in relation to public or other authorities. These provisions are found in Part 5 - Liability of public and other authorities. Section 42 is entitled "Principles concerning resources, responsibilities etc of public and other authorities". It is in the following terms: "The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate." 483On behalf of the plaintiff it was submitted that there was an evidentiary onus upon the Council. However, it was contended the Council had not called evidence to establish that there were practical impediments or cost prohibitions that affected or impacted on the Council's ability to establish a system under which the Club would close the boom gate at night and allocate to the Council's contractors the responsibility of opening carparks of a morning to open the boom gate. 484In relation to sub-paras (a) and (b) of s 42, the Council in this case clearly had the evidentiary onus of proving that there were limitations on the resources available to it. 485Whilst a submission was made that the Council's "arrangement" with the Club for opening/closing the boom gate meant that the Council would not be required to pay anyone or outlay funds to have the gate operated each day, that is not a matter that itself engages s 42(a). The section is designed to exclude liability where "the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available ..." (emphasis added). There is no evidence that the Council was subject to any relevant form of constraint or limitation in terms of its financial or other resources that would prevent it from having an effective system in place to co-ordinate the operation of the boom gate so as to obviate the risk of injury. The fact that the Council had the financial advantage of having the gate manned at no expense to it, does not, of course, bring into operation or entail the concept of any limitation of resources to which the section refers. 486The Council did not call evidence that any "particular function" of Council was limited by its financial and other resources. 487Nor did the Council call evidence to establish any issue in terms of the general allocation of its resources under sub-para (b) or as to the broad range of its activities relevant to sub-para (c) of s 42. The Council did not identify or establish relevant "standards" under sub-para (d) relevant to the safe operation of the boom gate or the safety of cycleways that applied to the particular circumstances of the plaintiff's accident. 488In oral submissions, Mr Watson for the Council referred briefly to s 42(c) but did not develop any submissions to support its relevance: T 235. 489I have concluded that the particular provisions of s 42 relied upon by the Council have no relevance to the facts and circumstances of the case.

(e) Section 43A: The Council's Defence Based on Concept of "Special statutory powers" 490This ground of defence proceeds upon the basis that the liability alleged against the Council was, at the material times, based on the exercise of or a failure to exercise a special statutory power conferred on the Council. 491Section 43A of the CLA, a provision under Part 5 of the Act, is in the following terms: "(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44." 492The Council submitted that s 43A applies to the plaintiff's cause of action. To support that submission it relied upon particular provisions of the Roads Act 1993 discussed below. The submission proceeded upon the basis that by reference to that legislation it could be established that the Council had exercised a relevant special statutory power. 493The Council's submissions on s 43A are to be found in oral submissions commencing on 27 September 2012 at T 236 and in written submissions dated 28 September 2012. 494In developing the s 43A argument, the Council's submissions referred, as I have indicated, to provisions of the Roads Act 1993, in particular, ss 87, 114 and 115. In paragraphs 3 and 4 of the Council's written submissions it was contended: "3. Section 87(3) involves the following steps: (a) Riverside Drive is a public road; (b) It is not a 'classified road' - see the Dictionary to the Act. (c) It is thus an 'unclassified road' - see the Dictionary to the Act; (d) The section empowered the Council to carry out 'traffic control work'; (e) The phrase 'carry out traffic control work' is defined in the Dictionary to the Act, includes 'carry out any activity in connection with the construction erection, installation...of a traffic control facility'; (f) 'Traffic Control Facility' is defined in the Dictionary to the Act, and has the same meaning as it has in Part 6 of the Transport Administration Act 1988; (g) 'Carry out traffic control work' is defined in the Dictionary to the Act to include 'carry out any activity in connection with the construction, erection...of a traffic control facility'; (h) In Part 6 of the Transport Administration Act 1988, 'traffic control facility' means: '(c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads...'". 4. There cannot be any issue about whether or not the gate is a 'structure or device' and plainly it is 'intended to promote safe or orderly traffic movement on roads...'." 495In para 5 of the written submissions, it was argued that the boom gate was "intended to promote safe or orderly traffic movement" thereby establishing that it was a "structure or device" that was so intended and thus a "traffic control facility" within the meaning of the Roads Act. The Council sought to rely upon evidence given by Mr Lay, the Council Minutes of a meeting held on 12 May 2004, a letter from a Mr Norman May and other records referred to in para 5(e) to (l) of the Council's written submissions related to complaints/discussion of the "hoons" engaging in anti-social driving behaviour causing disturbance at night time and the potential of such conduct to involve risk/danger. 496Council submitted that both conditions of s 43A(2) of the CLA were satisfied. 497In considering the submission it is necessary to clearly identify: (i) Whether a relevant special statutory power was conferred upon the Council and if so, whether it was exercised in any respect in relation to the boom gate; (ii) If so, whether it was of a kind that persons generally are not authorised to exercise without specific statutory authority. 498As to (i), the Council's submissions as to statutory power, in part, relied upon s 87(3) of the Roads Act. Reference was firstly made in the Council's written submissions to s 5 of that Act. Section 5(1) states: "A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) ..." 499The key concept in s 87(3) is "traffic control work". Section 87(3) is in the following terms: "87 Traffic control facilities (3) The appropriate roads authority may carry out traffic control work on any unclassified road, on any part of a transitway that is not a public road and on any road or road related area within the meaning of the Road Transport (General) Act 2005 (other than a road or road related area that is the subject of any declaration made under section 15(1)(b) of that Act relating to all of the provisions of that Act) that is not a public road, other than one in respect of which the RTA has notified the authority that the RTA proposes to carry out traffic control work." (emphasis added) 500I note that there was no dispute that Riverside Drive was/is an unclassified road. 501The Dictionary to the Act separately defines "traffic control facility" and "carry out traffic control work". 502The expression "traffic control facility" is defined in s 45E of the Transport Administration Act 1988, in particular: "(c) means any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads." (my emphasis) 503The expression "carry out traffic control work" is defined in the Dictionary to the Roads Act as: "includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility". 504Section 87 of the Roads Act, in my opinion, has no operation or application in this case for the following reasons.

(1) Carry Out Traffic Control Work (i) The Council in relation to the operation of the boom gate was not carrying out "traffic control work" in relation to it. The definition of that expression requires particular conduct, namely, "activity" of a kind or genus described in a part of the definition, namely, "in connection with the construction, erection, installation, maintenance, repair, removal or replacement ..." of a "traffic control facility". There was no "activity" of the kind specified. Before discussing the Council's defence of a special statutory power below, I make the observations set out in the next paragraph. (ii) The way the plaintiff puts his case for liability of both defendants does not incorporate a claim that the boom gate design or its construction was negligently performed. The claim is directed to the subsequent operation of the boom gate as well as the Council's failure to have erected or placed markings or directions on the roadway. As stated in the plaintiff's written submissions no allegation of the negligent exercise or non-exercise of a statutory power in relation to the construction of the boom gate is alleged. The plaintiff's case alleges the failure by the Council to implement an effective system which would ensure that the boom gate was opened by at least 6.00am each morning so that it could and would not operate as a hazard to cyclists. (2) No Decision to act or not act under a special statutory power (i) The plaintiff does not plead or allege the exercise or failure to exercise a statutory power, "special" or otherwise. In those circumstances the onus falls upon the Council to establish that, at a relevant time or times, it was acting/not acting under a special statutory power and that the plaintiff's cause of action proceeds upon that basis. (ii) In Roads and Traffic Authority of NSW v Refrigerated Roadways, supra, Campbell JA observed at [374]: "However, a reading of the Statement of Claim shows that the plaintiff made no mention of any statutory power, or of negligence in the exercise of any such statutory power, in the way it put its case. Rather, the acts of negligence alleged were those that I have set out at [107] above. When the way the plaintiff puts its case for the liability of the RTA makes no mention of any special statutory power of the RTA, I do not see how that alleged liability could be 'based on' the RTA's exercise of, or failure to exercise, any special statutory power." (3) No function to promote safe, orderly movement of traffic (i) The phrase "traffic control facility" in the Transport Administration Act which is adopted in the Dictionary definition provisions of the Roads Act is related to a limited or a specific concept or purpose, namely, signs etc that are "intended to provide safe or orderly traffic movement on roads" (emphasis added). The definition of the phrase is set out in full in sub-paragraph (ii) that follows: (ii) Section 45E of the Transport Administration Act defines "traffic control facility" as meaning: (a) traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or (b) any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under: (i) this Act or the regulations, or (ii) any other Act, regulation or by-law prescribed for the purposes of this subparagraph, or (c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards, or (d) any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or (e) any other thing prescribed as a traffic control facility by the regulations." (emphasis added) (iii) In evaluating the Council's reliance upon s 43A it is necessary to refer to the evidence as to the intended function or purpose for which the boom gate was constructed and why the Council decided upon installing it. (iv) As the discussion earlier in this judgment records, the purpose of it was to exclude vehicles from the carpark area at night (in particular after the Club closed down for the night). (v) The boom gate was not a device for the purpose of or directed at the movement of traffic (or "traffic movement") as referred to in the definition of "traffic control facility": sub-para (c) - see (ii) above. No entry or movement of any vehicles could materialise once the boom gate was closed as was intended. (vi) The exclusion of vehicles by closing the boom gate at night applied to the carpark which made up most of the relevant area. In this latter respect it may be noted that the resolution of the Rockdale Traffic Committee was expressed on 12 May 2004 as related to traffic measures in "the St George Sailing Club carpark" (Exhibit A at 364, 366). The Council resolutions passed on 26 May 2004 and/or 23 June 2004 also referred to approval for "proposed traffic measures in the St George Sailing Club Car Park": (Exhibit A at 370). The only measure for traffic control ("to promote safe or orderly traffic movement") on Riverside Drive was the installation of speed bumps. The focus of Mr Lay's statement was also largely, although not exclusively, upon the carpark itself: see paras 18, 19, 20, 21(c), 22, 25, 35 and 38 in Exhibit A at 321-325. (vii) The boom gate was not constructed for, and did not have a function "to promote" safe or orderly traffic movement. It was designed and installed to stop or prevent any entry or movement in the Riverside Drive carpark area late at night. The word "movement" involves the concept of "passage from one place or situation to another": Oxford English Dictionary. Closing off access to the carpark and part of Riverside Drive at night was the primary intention and purpose of installing the boom gate device. 505When so understood, the boom gate was never intended as a "traffic control facility" for it was not directed at the function referred to in the Act. It was not directed to promoting movement of traffic in a safe or orderly way. Its function was to prevent any movement after dark. The installation of it did not fall within s 87(3) of the Roads Act as "traffic control work on (an) unclassified road". 506There is a separate and further matter that tells against the application of s 43A. The Council's submission in these proceedings was directed and limited to "the closing of the gate". It was not directed to the failure of Council to implement a system that would ensure that the boom gate was always in the open position for early morning cyclists. Paragraph 2 of the Council's written submission was as follows: "2. The exercise of the special statutory power includes the closing of Riverside Drive. It is only when the boom gate is in its closed position does it have this effect. The closing of the road via the boom gate can only be achieved by the exercise of this power - of itself and/or by the exercise of the power under sections 114 and 115 of the Roads Act 1993 (see below)." (emphases added) 507The plaintiff's case was not based upon an allegation of a breach of duty by the Council for having permitted the gate to be closed on the evening before his accident or in allowing it to remain closed during night hours. His case on liability relied upon the long-established early morning usage of Riverside Drive as an extension of the cycleway, and the need for it to be open by 6.15am on the day of the accident. It was part of the plaintiff's case that the Council relinquished the operation of the boom gate to the Club. In doing so it effectively left the responsibility for opening the gate to the Club by whichever Club employee the Club nominated and in that respect allocated the task to the Club with a broad discretion as to the time(s) for opening the gate.

No Relevant Special Statutory Power Authorising the Opening of the Gate 508As noted in [497], there is a second aspect if there was a special statutory power exercised by the Council. Apart from the above conclusion that the Council did not exercise a special statutory power under s 43A(2), it was not established that opening the gate required special statutory authority. Indeed, it was not established that the Club's cleaner acted under any specific statutory authority. In other words, it was a function that could be exercised without such a special statutory warrant or authority.

Section 115: Power to Regulate Traffic in Connection with Road Work 509Sections 114 and 115 are in the following terms: "114 Roads authorities may only regulate traffic in accordance with Part A roads authority may not regulate traffic on a public road otherwise than in accordance with this Part. 115 Roads authority may regulate traffic in connection with road work etc (1) A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road. (2) The power conferred by this section may be exercised by the RTA for any purpose but may not be exercised by any other roads authority otherwise than: (a) for the purpose of enabling the roads authority to exercise its functions under this Act with respect to the carrying out of road work or other work on a public road, or (b) for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or (c) for the purpose of protecting earth roads from damage caused by heavy vehicles or by animals, or (d) for the purpose of protecting members of the public from any hazards on the public road, or (e) for the purpose of protecting vehicles and other property on the public road from damage, or (f) for the purpose of enabling a public road to be used for an activity in respect of which a permit is in force under Division 4 of Part 9, or (g) for a purpose for which the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic. (3) A roads authority may not restrict the passage of heavy vehicles or animals along the roadway of an earth road unless clear side tracks have been provided for their passage. (4) A person: (a) must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road, and (b) must not damage, remove or otherwise interfere with a notice or barrier erected for the purposes of this section. Maximum penalty: 10 penalty units. (emphasis added) (5) It is the duty of a roads authority by which a notice or barrier has been erected under this section to remove the notice or barrier if there is no longer any need to regulate traffic for the purpose for which the notice or barrier was erected." 510Section 115 confers a restricted power upon a road authority (other than the RTA). The expression "roads authority" is defined in the Dictionary to the Roads Act. The Council falls within that definition. 511Section 115(1) confers a broad power on the RTA to regulate traffic. However, the power may only be exercised by other road authorities for a purpose falling within s 115(2). 512The restrictions specified in s 115(2) limit the power of a local authority to "regulate traffic on a public road" to one or other of the "purposes" stated in s 115(2)(a) to (g). The Council relied in its submissions upon sub-paras (d) and (e): Council's Written Submissions dated 25 September 2012 at [14]. The Council also relied upon the factual matters as set out at [5] of those submissions. 513Each of sub-paras (a) to (g) in s 115(2) commences with the phrase "for the purpose of ...", eg. sub-para (a) is for the purpose of performing "functions" with respect of carrying out road work on a public road (b) for the purpose of protecting a public road from damage, (c) for the purpose of protecting earth works from damage etc.

Section 115(2)(d) 514Sub-para (d) refers to the "purpose" of "protecting members of the public from hazards on the public road" (my emphasis). 515The purpose for which the boom gate was constructed is reflected in Council records and in other documents created in 2004. It was to stop the "hoons" from creating disturbance and noise etc at night. Other provisions forming part of the Roads Act, such as s 116(1)(a), employ the phrase "for the purpose of regulating traffic" unlike s 115(2)(a). "Regulate traffic" as noted above, means, inter alia, to restrict or prohibit traffic. The phrase "hazards on" a public road has nothing to do with restricting traffic on or along a public road. 516The power to restrict or prevent "traffic" meaning "vehicular traffic", is a power to "regulate traffic" in accordance with the Dictionary definition. The power under s 115(2)(d) to protect members of the public from any hazards on a public road is not a power to "regulate traffic" (ie, "restrict or prohibit the passage of ... persons, vehicles etc on a road"). It is narrower than that. It is only for the purpose stated in s 115(2)(d). 517There is no basis, having regard to the terms of the sub-para, or based on contextual matters, for construing "hazards on the public road" in s 115(2)(d) as referring to protecting the public from vehicular traffic.

Section 115(2)(e) 518Insofar as the Council relied upon to s 115(2)(e), there is no evidence that deciding to erect the boom gate was done for the purpose of protecting vehicles or "other property" on public roads from damage. The evidence is against such a "purpose". The boom gate was intended solely as a means of dealing with "hoon behaviour" at the Fraters Avenue carpark: Memorandum of Mr Jarvis, 9 February 2004 (Exhibit A at 351). 519The plaintiff's case is not, as earlier stated, based upon the concept of the Council being negligent in constructing the boom gate or for having closed it so as to form a "barrier" at night. The plaintiff's pleaded case is limited to the requirement for the barrier to be opened in the interests of safe recreational use by cyclists. This is consistent with the provisions of s 115(5) of the Roads Act that apply to road authorities regulating traffic. Section 115(5) provides: "It is the duty of a roads authority by which a notice or barrier has been erected under this section to remove the notice or barrier if there is no longer any need to regulate traffic for the purpose for which the notice or barrier was erected." 520That sub-section is consistent with the common law duty of care of the Council to cyclists to ensure the boom gate (the barrier) was removed at the start of each day.

Section 43A(3) 521Notwithstanding the conclusion expressed above. I turn to the provisions of s 43A(3) in the event that it could be established that the Council exercised a statutory power under s 87(3) of the Roads Act. 522The exception expressed in s 43A(3) is in terms "unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of ..." 523As noted above, "traffic control facility" is defined, inter alia, to refer to a "structure" "intended to promote safe or orderly traffic movement on roads". 524The boom gate arrangement between the Club and the Council was premised on a need to close the gate on a limited basis, that is, overnight. 525Given the fact that the cycleway, including the extension of it, had become a highly trafficked route, there was not only no purpose to be served in leaving the gate closed in daylight hours, there was a positive need to ensure that it was opened each day at an early hour. No reasonable authority could properly have considered it a reasonable exercise of the power under s 87(3) to permit the gate to remain closed by day in those circumstances. To leave it in the closed position by day would not only not serve any worthwhile purpose or function, but to do so would convert its use as a "traffic control facility" into a structure that presented cycle "traffic" to a potential hazard or risk of injury. The "omission" the subject of s 43A "in the circumstances" could not constitute "a reasonable exercise of power" within that section.

PART H - LIABILITY OF THE CLUB 526The submissions for the parties in relation to the Club proceeded as follows: (1) Second Defendant's Outline of Submissions dated 25 October 2012 (2) Plaintiff's Submissions in Response to the Outline of Submissions of the Second Defendant and Oral Submissions delivered on 22 November 2012 dated 4 December 2012 (3) Second Defendant's Submissions in Response to Submissions of Plaintiff dated 4 December 2012 received 10 December 2012

The Club's Submissions 527The Club disputed the proposition that the power to open and close the gate had been effectively delegated by the Council to the Club. There having in fact been no delegation, it was submitted, there had been no assumption by the Club of a duty of care with respect to the opening and the closing of the gate. 528Reference was made by Mr Morris SC for the Club to the evidence to the effect that the Council operated a number of carparks in the Rockdale municipality and that the gates in those areas were opened and closed by security contractors engaged by the Council. 529The Club had been given keys by the Council to the padlock used to lock the gate in a closed position and to open it. It was told by the Council that it could open and close the gate at times "at its discretion". 530It was the Club's contention that there had been no delegation of any right or any authority to the Club with respect to the gate. Similarly, with contractors retained by Council to open or close any of the other carparks within the municipality, no delegation of any right or authority arose or was involved: Club's Written Submissions at [5]. 531The correct position it was submitted was that the Club, like the Council's security contractors retained with respect to its other carparks, had been agents for the performance by the Council of its functions. 532The Club submitted that any duty of care that it acquired by reason of its agreement to open and close the boom gate would be limited to the exercise of reasonable care when carrying out those activities. 533It was submitted that there was no evidence of any additional responsibilities assumed by the Club which would result in a duty of care being owed by the Club to the plaintiff as a cyclist passing through the area. 534Further, it was contended, no pleaded or evidentiary case had been presented that the Club had agreed to undertake to close or open the gate at a particular time. 535In the Further Amended Statement of Claim the following particular of negligence was pleaded as against the Council at [15]: "xiii Purported to delegate to the second defendant the function of opening and closing the boom gate without identifying the appropriate time for the opening of the boom gate; xiv Purported to delegate to the second defendant the function of opening and closing the boom gate without identifying to the second defendant the reasons behind the appropriate time for the opening of the boom gate." 536As against the Club, it was alleged at [20] of the Further Amended Statement of Claim: "x Failed to inform itself as to the need to open the boom gate at 5.00am" "xii Failed to inform itself of the appropriate system of the boom gate and the reasons for such a system." 537It was submitted for the Club that there was no evidence as to what would be an appropriate time for the gate to be open and there was no expert evidence that it should be open by 6.15am. No opening time was specified or recommended by Jamieson Foley after its audit. 538It was submitted that the issues of any inadequacies of the cycleway should not be elided into the issue of whether or not the gate should be opened at a particular time. Passage through the area, which was barricaded by the gate, was not part of the official cycleway. 539It was further submitted that it was a relevant fact that the gate could be closed at any time provided that its existence was properly marked or highlighted so as to avoid confusion in the mind of a cyclist. 540The Club's submission was that no duty of care could be found to exist simply on the basis of the undemanding test of foreseeability and considerations of fairness: Sullivan v Moody (2001) 207 CLR 562 at 579 was cited for the proposition that there are dangers of finding a duty outside established categories. 541It was submitted that any duty of care found to exist must be rationally related to functions, powers and responsibilities of the persons or authorities claimed to owe the duty: Sullivan at 581.56. 542It was submitted for the Club: (i) It was not the occupier of the carpark; (ii) It only had the limited function of opening and closing the boom gate at times it chose. (iii) It was not expressly charged with determining whether or not it was safe to open and close the boom gate at particular times. (iv) It had not been delegated any powers to erect warning signs or lights or to mark the roadway with arrows and warnings or otherwise to respond to any perceived risk; and (v) The Club was not shown to have been aware that cyclists passed through the exit space to the carpark at times and in circumstances where they could not readily perceive the gate was closed. 543It was submitted that facts had not been established in evidence that were essential to a finding of a duty of care. Further, a finding of duty of care, it was argued, would be inconsistent with established principles relating to the law of principal and agent and principal and independent contractor. 544A primary question, it was observed in the submission for the Club, is "was the risk foreseeable?". Section 5B(1)(a) of the CLA directs attention to whether the risk was one of which the person knew or ought to have known. On behalf of the Club it was submitted that relevant considerations were said to include: (i) The risk is properly characterised as a risk that a cyclist in daylight hours, keeping a proper look out and with an unobstructed view, would collide with the closed gate. (ii) In the ordinary course it was reasonable to expect persons to respond to barricades that they would be expected to see. (iii) The expert evidence was consistent with that reasonable expectation. The experts agreed that the barricade was readily visible. (iv) The most favourable explanation for the plaintiff's failure to respond to the evident risk is a combination of facts: a "perceptual trap", the result of the cyclist's position on the roadway, his speed of approach and angle of the gate. (vi) There was no evidence to the effect that such a "perceptual trap" would have been evident to the unskilled observer. (vii) A consideration of the possibility of the risk eventuating requires an understanding that cyclists habitually travelled at speed in the early hours of the morning through the exit roadway from the carpark and did not follow the known cycleway (a reference to the shared pedestrian/cycle pathway). (viii) There was no evidence that the Club had any appreciation that cyclists were following this route in the early hours of the morning. (ix) There was no evidence that the Club knew of the risk. 545It was submitted that the plaintiff had not established that, from the Club's perspective, the risk was foreseeable. 546It was further submitted on behalf of the Club that the relevant question was said to be whether the risk of accident could properly be characterised as "not insignificant": s 5B(1)(b). Relevant to this consideration the following matters were relied upon: (i) There was no evidence as to the times of opening prior to 2007. The evidence was to the effect that the opening times had been variable. (ii) There was evidence as to a significant number of cyclists using the route. (iii) Despite the significant use, in the period December 2004 to date, only two cyclists were known to have collided with the gate. 547In relation to the issue as to whether a reasonable person would take precautions (s 5B(1)(c)), the Further Amended Statement of Claim identified precautions which it is alleged the Club should have taken such as signs, warnings and failure to have a system for control and/or operation of the gate which had it open at an appropriate time. 548It was submitted that the plaintiff had not established that the power to take precautions involving the erection of warning signs on the public roadway used as a parking area was delegated to or exercisable by the Club. 549Further, the plaintiff had not established that: (i) The Club had an appreciation of the risk. (ii) The Club had an appreciation that it had some responsibility to guard against the risk. (iii) The Council had delegated to the Club any responsibility for the management of the risk. 550It was submitted that the Club did not have any appreciation of those matters and had no capacity to take steps to guard against the risk. Accordingly, it could not be said that a reasonable person in the Club's position would have taken the precautions alleged. 551In determining whether a reasonable person would take precautions as alleged (s 5B(2)) it was submitted that the Court would need to consider a number of matters including: (i) The probability that harm would occur if care was not taken. (ii) The likely seriousness of the harm. (iii) The burden of taking precautions. (iv) The social utility of the activity that creates the risk of harm. In that respect, the closure of the carpark was directed at discouraging anti-social behaviour.

(ii) The Plaintiff's Submissions 552Mr Campbell's submissions on behalf of the plaintiff were delivered in response to the submissions for the Club: see T 330:1-5. 553In his written submissions dated 4 December 2012 he stated that the plaintiff "did not claim that the power to open and close the road was effectively delegated to the Club ...": at [4]. He said that under "an informal arrangement" between the Council and the Club, the Club was "entrusted with, and assumed responsibility for opening and closing the gate". This manner by which the Club undertook the responsibility was the focus of the plaintiff's case: at [4]. 554The fact that the evidence revealed an absence of any difficulty with Council contractors opening gates at other parks within the Council's municipality was, in effect, relied upon as evidence of what could and ought to have been achieved under the "arrangement" between the Council and the Club: at [5]. 555As to the Club's performance of its function, it was submitted there was no evidence that the Club could open and close the gate whenever it wanted to. The only evidence was that the arrangement was for closing the gate at 10.00pm and opening it at 5.00am "at the discretion of the Club". 556There was, it was contended, evidence as to "an appropriate opening time" contrary to the Club's submission as to there being no evidence of such. Reliance was placed on the evidence analysed above as to Mr Lay's evidence as to the proposition that a 5.00am opening time had been proposed by police: at [7]. 557The submissions also contended that it ought to have been known to the Club that the gate was extensively used early of a morning by cyclists. There was no evidence from the Club, it was noted, that showed that the Club had given any consideration to "relevant issues" to the opening of the gate let alone of it exercising a discretion as to opening hours. 558In these circumstances it was said to have been "impermissible and improper" for the Club to have allowed for "a haphazard system to have been introduced and maintained": at [8]. 559It had been known to the Club's cleaner that Mr Smith had collided with the gate shortly after 6.00am, and of the plaintiff's collision on the date of the accident. 560There was no evidence that the Club had considered at any time "the issue of cycle safety". The failure to do so in determining the function of opening the gate was said to have been a "clear breach by it of its duty to exercise reasonable care" in relation to the obstruction arising from it closing the gate: at [11]. 561Contrary to the Club's submission, it was argued that there is available evidence to enable a conclusion to be drawn to the effect that the Club "did not exercise any discretion to fix any other opening time in lieu of the 5.00am time provided for": at [12]. 562The reliance by the Club on the failure by Jamieson Foley in its audit report to deal with the issue of an appropriate opening time for the boom gate was disputed. The review report was written at a time when directional arrows had been placed on the roadway for cyclists to follow. The terms of reference of the audit concerned issues of safety "along the cycleway itself", it was not in regard to other safety issues: at [13]. 563The plaintiff's submission took issue with the Club's contention that the gate could be closed at any time provided its existence was properly marked or highlighted so its closure could be detected. There was much evidence, it was submitted for the plaintiff, that there was difficulty of the gate being seen when closed. The evidence established how easily the barrier could have been made more visible. 564It was also submitted that it was "untenable" for the club to argue that the Club had no appreciation that cyclists used the area. There was direct evidence that the cleaner knew and that he was aware that cyclists had collided with it. Reference was made in this respect to Mr Unicomb's evidence at T 73 at [15]. 565No evidence was adduced distancing the cleaner from the Club and that it should be fixed with his knowledge: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, 170-1 [23], 172 [24], and 173 [33]. 566This was said to be especially so in the absence of evidence about the cleaner and his relationship to the Club, instructions to him and the like, all being matters within the Club's knowledge: at [15]. This, it was said, would prove that the risk was, or ought to have been, known to the Club. 567The plaintiff disputed the Club's submissions: (a) That the plaintiff had an obligation to "familiarise" himself with many kilometres of the route so as to be able to identify that the gate might be closed. (b) That riding through the spiked entrance was an appropriate alternative route. 568The plaintiff rejected the Club's submission that the case fell into a "novel" category. There was, it was contended, nothing "novel or exceptional" about imposing a duty of care upon the Club. The Club was an "occupier" of the carpark and used it as an adjunct to its business. 569The Club, it was submitted, had "absolute control" over the opening and closing of the gate: at [19]. 570There were a number of factors, foreseeability, control, vulnerability of the plaintiff and the nature of the task undertaken by the Club, that gave rise to a duty of care in it. 571An obstruction across the roadway and constructive knowledge of cyclists' use of it provided, it was submitted, a foundation for a finding of foreseeable risk. The risk was increased by the "haphazard" system for operating the gate, especially for cyclists not accustomed to finding it in the closed position. 572The foreseeable risk was clearly "not insignificant": s 5B(1)(b) CLA. An unexpected obstruction to a cyclist was not "insignificant". It was "unthinkable" that one in the position of the Club would not in the circumstances take precautions against the risk of harm created: at [24]. The plaintiff's case is not one arising from a failure from a static state of affairs. The steps to remove the risk were straightforward - namely, to ensure there was no obstruction at a time it otherwise would pose a risk. 573The risk of harm, it was contended, was not a low risk. Serious harm can result from a cyclist travelling at speed colliding with an unexpected or unanticipated object. 574There was no evidence that the burden of taking straightforward measures to avert the risk was too great. A clear instruction by the Club to the cleaner and follow-up to ensure it was followed was all that was required. Alternatively, if that was not possible, then an alternative existed, namely, a system involving the Council's contractors: at [28]. 575The above matters, it was submitted, established a beach of duty by the Club.

CONSIDERATION 576I consider that there are a number of difficulties in the plaintiff's case against the Club. 577Firstly, on the issue of "duty" the evidence establishes that the scope of any duty owed by the Club could only be a narrow one given:

• The limited function allocated to it by the Council;
• The lack of precise or specific instructions by the Council to the Club on the subject of opening hours for the boom gate;
• The conferral of a broad discretion on the Club as to performance of the function of opening (and closing) the boom gate; and
• The Council's retention of control and authority over all aspects concerning the boom gate and its operation. 578Secondly, there was an absence of any formal contractual or other legal relationship between the Council and the Club beyond the informal relationship of principal/agent for the performance of the limited function of opening and closing the gate at unspecified times. That relationship gave rise to a limited responsibility being placed on the Club, commensurate only with the task allocated to it. 579In addition, there are particular matters relevant to the alleged breach of duty by the Club. There is no evidence that the Club undertook to the Council that it would allocate the opening/closing function of the gate to a particular employee of the Club or to any particular third party. The precise nature of the relationship between the cleaner and the Club was not the subject of evidence. That is relevant, amongst other reasons, to whether the cleaner's knowledge of other incidents involving the gate when closed can be imputed to the Club itself. 580Additionally, there is no evidence as to any instructions by the Club or by the Council to the cleaner in relation to the performance of his or her task in operating the boom gate. 581On the question of evidence or lack of evidence as addressed in the submissions for the Club and the plaintiff in response, it is not in my opinion sufficient for the plaintiff to establish the fact that there was heavy daily use of the cycleway/boom gate, and that the gate was left in the closed position at the time of the plaintiff's accident, to demonstrate a breach of duty by the Club. 582In relation to any visibility problems amounting to a "visual trap" when the gate was closed, the Club cannot be taken, given the limited task allocated to it by the Council, to have been alive or aware of such potential difficulties. Nor would the facts referred to in the preceding paragraph require a response to resolve such difficulties. 583There is no evidence that the Club had any responsibility following Mr Smith's accident to investigate the circumstances giving rise to it. The Club was not the body vested with contractual responsibility in relation to risk management. The power or authority to investigate lay with the Council to manage its own structures and amenities that were the subject of public use. 584The issue of alleged breach of duty by the Club is in part related to the scope of the Club's duty of care. 585The Club's task, as earlier noted, was limited to the daily opening and closing of the boom gate. The fact that the Club's cleaner on a number of occasions was late to work to open the boom gate may be a step towards establishing a breach of duty by the Club, but by itself, in my opinion, is insufficient. 586The arrangement between the Council and the Club did not require the Club to put in place, for the purposes of ensuring that the gate was opened by a particular time, what might be called a back-up system - that is, a system to have someone other than the cleaner open the gate if the cleaner was likely to be delayed or was unable to attend to open the gate by a certain time. 587Whilst the Club did not call evidence, there was no evidence adduced by the plaintiff to establish that the cause of the plaintiff's accident necessarily amounted to a breach of duty by the Club. 588In determining issues of duty of care and its scope and content, proximity, it has been held is not a general determinant: Caltex Refineries (Qld) Pty Ltd, supra, at [95]. In a novel case the proper approach requires, inter alia, an analysis of the facts bearing upon the relationship between the plaintiff and the Club by reference to the "salient factors" affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm. 589Additionally, it has been observed: (i) Duties of care are not owed in the abstract. The scope of the duty "may be more or less expansive depending on the relationship question: Dederer, supra, at [43] per Gummow J. (ii) The duty of care is not absolute, it is to act reasonably Vairy v Wyong Shire Council (2005) 223 CLR 422 at 459 [118]. 590In determining whether the Club failed to exercise reasonable care its conduct is to be assessed having regard to its limited task or function as the agent of the Council, the extent of its knowledge or appreciation as to a foreseeable risk in not opening the boom gate by a certain time, and its appreciation or otherwise that such failure would give rise to an unexpected and real risk to a cyclist which he or she would be unlikely to be able to react to in time to avoid a collision. 591I have referred earlier to the various factors that inform the nature and extent of the task allocated to and accepted by the Club. All such factors indicate that a limited physical task was assumed by the Club as agent of the Council, devoid of any other specified or identifiable responsibilities. Factors that are relevant in determining the existence of a duty may also be relevant to questions of breach and even causation of loss: Caltex Refineries, supra, per Basten JA at [176]. That is so, as his Honour stated, because the three concepts are interrelated. 592The approach to the assessment of relevant factors was set out by his Honour in that case at [177]. The assessment of relevant "factors" in the present case, in my opinion, leads to the conclusion that whilst the Club was subject to a duty of care, the scope of that duty was limited. In the factual circumstances established in evidence, I have concluded that the plaintiff has not established that the Club failed to exercise reasonable care.

Contributory Negligence 593The Council pleaded a defence of contributory negligence in the following terms: "(a) Failure to keep a proper lookout whilst riding; (b) Riding in a direction opposite to the marked traffic flow; (c) Failure to heed the presence of the boom gate and brake or change course to avoid colliding with it; (d) Failure to ride at a speed and in a manner appropriate to the prevailing conditions; (e) Attempting to leave the car park via its entrance roadway; (f) Riding at an excessive speed in all the circumstances." 594In cases to which the CLA applies, whether a person has been contributorily negligent, the issue is to be determined in accordance with ss 5R and 5S. 595Section 5R provides: "(1) 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. (2) ... (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 596Section 5S provides: "In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 597In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Tort Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) noted that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's responsibility for his or her own safety. 598In Vairy v Wyong Shire Council, supra, at 483 [220], a person owes a duty: "... 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 realised." 599It has been noted that these remarks are consistent with the provisions of s 5R(1) of the CLA: Consolidated Broken Hill per Ipp JA at [67]. 600Contributory negligence is to be determined objectively from the facts and circumstances of the case. These include what the plaintiff knew or ought to have known at the time: s 5R(2)(b); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16]; Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [83]. 601The Council in support of its defence relied, in particular, upon what it asserted was the obviousness of the boom gate in the closed position, its contention being that the plaintiff could not have been maintaining a proper lookout and that at the time of his accident he was proceeding contrary to the "No Exit" signs. 602The Council submission was that contributory negligence should be assessed at 100%. It submitted: "86. The gate was visible, and unambiguously so; the plaintiff should have seen the gate in its closed position, and he has provided no convincing reason why he did not". (Written Submissions dated 27 September 2012) 603It was further contended: "87. He could, had he chosen to do so, used the prescribed exit, as other cyclists, such as Mr Crouchley, had done ..." 604I have earlier made findings on the evidence as to the plaintiff's observations, actions and his level of vigilance leading up to the accident, when considering the issue of primary negligence. They include a finding that the plaintiff at all times was maintaining a lookout ahead of him, that he had an expectation that the gate would be open and not closed and that, given the oblique position of the boom gate, there existed a visual ambiguity as to the position of the gate when in the closed position. 605The plaintiff's evidence and that of Mr Smith and Mr Unicomb establishes that he was travelling at a speed within an appropriate range for a cyclist approaching the boom gate area. His speed of travel, in other words, was consistent with that of a responsible and highly experienced cyclist. 606For the above reasons, I would reject the Council's submission to the effect that the plaintiff had himself to blame for the accident upon the basis that he failed to take reasonable care for his own safety and that he should be held 100% responsible for it. 607At common law, a plaintiff is guilty of contributory negligence when he or she exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and who suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman, supra, at [16]. 608The words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the plaintiff's position": Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [87]; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [14]. Section 5R, it has been observed, reflects "the expectation that, in general people will take as much care for themselves as they expect others to take for them": Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [70] per Ipp JA (Giles JA and Hunt AJA agreeing). 609In assessing contributory negligence of an employee in an action against his/her employer specific considerations apply having regard to an employer's obligation to provide a safe system of work. In such a case, the question is whether in all the circumstances the employer's conduct amounted to mere inadvertence, inattention or misjudgment or to negligence: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 at [15]; (1986) 160 CLR 301 at 310. 610The circumstances that arise in an employment case can also be relevant when the question of contributory negligence arises in a non-employment context: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [16] per McColl JA with whom Mason P and Beazley JA agreed. 611McColl JA in Pollard went on to observe that a finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care for his/her person or property: "What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [30] per Gleeson CJ; Gummow and Hayne at [16])." 612In accordance with the above dicta the conduct of the plaintiff is to be assessed in light of both his own duty or responsibility referred to above and the duty owed by the Council. 613The Council, as previously observed, having taken the decision to install the boom gate and to leave its daily operation in the hands of the Club under the "arrangement", remained under a duty to ensure that the system it established continued to provide, on a daily basis, for the safe passage, inter alia, of cyclists who, it was known were frequent users of the cycle route. The Council had not divested its responsibility for operating the gate, it not having contracted out that function on that basis. 614The system which the Council established by its arrangement with the Club, depended upon both the Club's cleaner and the Club's discretion. The "system" was a fallible one as events have revealed. In the event of the cleaner failing to attend on any day (for any reason) to open the boom gate, the system carried a foreseeable, and an inherent, risk of failure. This is what occurred in the past as the evidence of Mr Unicomb, Mr Crouchley, Mr Smith and the plaintiff established. 615The Council's response to Mr Smith's accident, in particular its inquiry into it, was, for reasons earlier examined, an inadequate one. Those conducting the inquiry, Mr Mable and Mr Lay, concluded that it was a "freak" accident. On the basis of that conclusion, the Council failed to investigate the reason for the boom gate not having been opened and/or the need to examine and implement safeguards against a repetition of the circumstances that led to Mr Smith's accident. As a consequence, apart from the road markings made by Mr Mable after the accident, the "system" for opening and closing the gate remained as it was. 616In examining the plaintiff's conduct in that context, the relevant facts include the following matters: (1) The cycling route which included Riverside Drive followed by the plaintiff on the day of his accident was well-familiar to him. It was one in daily use by large numbers of cyclists. (2) Cyclists (including the plaintiff) as a matter of long-standing practice used the boom gate access as the exit route to Fraters Avenue. The Council was aware of that practice. (3) On the evidence, the foreshore route and spiked motor vehicle exit did not represent practical alternative routes for competitive or sporting cyclists such as the plaintiff, Mr Smith, Mr Unicomb, Mr Crouchley. (4) The plaintiff, through frequent use, had developed an expectation that the boom gate access to Fraters Avenue would be open for early morning use by cyclists. (5) A combination of that expectation, together with the oblique angle or location of the boom gate when open, resulted in a perceptual trap resulting in a visual ambiguity when the gate was in the closed position. (6) The circumstances referred to above on the evidence were causally linked to his accident and the collisions by Mr Unicomb, and Mr Smith. 617I have concluded that the failure by the Council to have established a safe system that would ensure that the boom gate would not remain closed to early morning cyclists (as by placing the responsibility in that respect upon independent contractors) and the failure by the Council to take steps by warning or implementing modifications (including enhancing the visibility of the gate) later put in place in 2009, materially contributed to the plaintiff's accident. 618The assessment of contributory negligence requires consideration in the context of the abovementioned findings as to the Council's responsibility for ensuring that the extension of the cycleway was free of obstruction from a closed boom gate. 619Additionally the fact that (a) the boom gate remained closed at a time when it should have been open; (b) the plaintiff's expectation that it would be open, and (c) the very limited time to permit the plaintiff to react and respond to the closed gate, are directly material to the issue as to what, if any, avoidance response was open to the plaintiff in terms of either slowing his cycle or bringing it to a stop before a collision. 620There is some evidence that cyclists encountering the boom gate in the closed position were able to apply their brakes but, in particular, in Mr Unicomb's case in 2006, not in time to avoid a collision. 621Mr Unicomb encountered the boom gate in the closed position after sunrise, and it resulted in him colliding with it at a slow speed. His evidence was that it was not apparent that the gate was closed until "you were virtually on top of it" (T 86:15-20). He referred to other incidents, pre-sunrise when he encountered the barrier and stopped, the conditions for cycling at that time it would appear were somewhat different with a different level of pre-dawn light likely to have had a bearing on his cycling speed. 622The plaintiff's case is that he did not have time to brake at all before the collision as he said he was "on top of it" immediately before impact. The plaintiff's failure in that regard, to have seen the closed gate in time to brake and avoid a collision, upon a full and proper consideration of the evidence, in my assessment could not be considered as representing a major departure from the standard of care required for his own safety. On my assessment the Council's omissions and failure to take reasonable care were the dominant cause of the plaintiff's accident. The plaintiff was by reason of its omissions and failure placed in an acute or an extreme situation of urgency. The plaintiff's failure to react in time to brake to avoid or reduce the force of impact, properly assessed, constitutes, in my opinion, a departure from the applicable standard at the low end of the range. 623On that basis, and in all the circumstances of the case, I determine the respective liabilities as follows: The Council: 80% The plaintiff: 20% 624Accordingly, for the reasons and on the findings and conclusions set out above, I have determined as follows: (1) That a verdict and judgment be entered in favour of the plaintiff against the first defendant, Rockdale City Council in the amount of $928,000. (2) That judgment be entered in favour of the second defendant, St George Sailing Club. (3) I grant leave to the parties to make application in respect of costs of the proceedings and other ancillary orders. 625I have earlier noted in paragraph [7] to [10], that cross claims were filed in these proceedings on behalf of the Council and the Club. 626Liability having been determined in favour of the plaintiff against the Council and liability in the proceedings having been determined in favour of the Club against the plaintiff, the issue of contribution and indemnity raised by the cross claims does not arise.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2013