- ‘Obvious risk’ under s 5F of the Civil Liability Act 2002 (NSW) (CLA) involves an objective test as to what a reasonable person in the position of the plaintiff would regard as obvious and may depend upon the extent to which the probability of its occurrence is or is not readily apparent.
- The subject bridge had been inspected by a council inspector two months before the accident when he saw gaps wide enough to trap the wheel of a bike. However, Clarence Valley Council (the defendant) escaped liability due to its immunity under s 45 of the CLA which requires the plaintiff to establish actual knowledge in the mind of an officer with authority to carry out the necessary repairs to the bridge.
On 9 April 2008, Dr Ann Collins (the plaintiff) was injured when she somersaulted over the railings of the Bluff Bridge (the bridge) at Lanitza in New South Wales whilst participating in a charity bike ride. The defendant had care, control and management of the bridge.
The plaintiff stated that she was aware of gaps between the planks on the wooden bridge from a distance and as she approached she discerned that there were larger gaps in which her wheels might become caught. She did not dismount from her bike but instead attempted to ride across the bridge. Approximately three quarters of the way across the bridge the front wheel of her bike became stuck in a gap between the planks causing her to ‘somersault’ over the low bridge railing onto a rocky embankment below. She suffered serious injuries. The only relevant warning sign on the bridge stated “Reduce Speed”.
The plaintiff alleged that the defendant should have maintained a regular system of inspection, installed higher guardrails, repaired the bridge and/or erected warning signs. The primary judge2 rejected the plaintiff’s evidence that she did not anticipate that gaps would prove to be “big holes”, she was travelling slowly and “did not consider it was even a remote possibility” that she would fall onto the riverbank. The primary judge concluded that the plaintiff realised that there were gaps in the planks of the bridge which had the potential to catch her wheels and that is why she rode across the bridge at an angle. The primary judge characterised the risk of harm for the purpose of s 5B of the CLA as the risk that “injury might be suffered from a cyclist falling after their wheel became stuck in the holes or gaps in the planks on the Bridge”. The primary judge held that the defendant’s power to carry out traffic control work under s 87 of the Roads Act 1993 (NSW) included the erection of a warning sign and that this was a “special statutory power” within the meaning of s 43A(2) of the CLA. The primary judge found that the defendant was aware that cyclists used the bridge and the risk of harm posed by the gaps in the planks was foreseeable and not insignificant and therefore the failure to erect a warning sign was so unreasonable that no council could properly consider the omission to be a reasonable exercise of its power. Accordingly, the plaintiff established that the defendant was negligent in failing to place a warning sign on the bridge.
However, the primary judge held that the defendant was not liable for its failure to erect a warning sign on the basis that it was an obvious risk within the meaning of s 5F of the CLA and by operation of s 5G of the CLA, the defendant’s duty of care did not extend to warning the plaintiff of that risk. Section 5F of the CLA defines an obvious risk. An obvious risk can include risks that are patent or a matter of common knowledge. Something can be an obvious risk even when it has a low probability of occurring or is not prominent, conspicuous or physically observable.
The primary judge held that the precautions the plaintiff argued the defendant ought to have taken were not required due to the operation of s 45 of the CLA. Section 45 of the CLA provides a road authority immunity for failure to carry out roadwork3, unless at the time of its failure to do so it had actual knowledge of the particular risk of harm that materialised. The primary judge held that according to North Sydney Council v Roman (Roman)4, s 45 requires that the plaintiff establish actual knowledge in the mind of an officer of the council with relevant authority to carry out the necessary works. The council inspector who had inspected the bridge prior to the accident saw gaps of sufficient size to trap the wheel of a bike but did not turn his mind to the possibility and he did not have the authority to meet the test in Roman. Accordingly, the primary judge concluded that the plaintiff had not displaced the immunity under s 45 of the CLA so the defendant did not have any liability to her for harm arising from the failure to carry out roadwork.
The primary judge went on to consider the resources available to the defendant for the purpose of s 42 of the CLA noting the large number of timber bridges on the road network under the control of the defendant and the high frequency at which a resurfacing regime was required which would entail a very significant ongoing cost for the defendant. The primary judge rejected the plaintiff’s submission that the bridge surface should have been re-sealed noting “the burden of the precaution is considerable, especially in light of the competing responsibilities of the Council. In circumstances where, even if the precaution was adopted the relevant risk, ie gaps, would re‑emerge”.5
The plaintiff appealed the judgment in favour of the defendant. The New South Wales Court of Appeal (the Court of Appeal) noted much of the recent debate concerning the identification of the risk of harm for the purpose of s 5B of the CLA stems from the judgment of Gummow J in Roads & Traffic Authority of NSW v Dederer6 that it is only through the correct identification of the risk that one can assess what a reasonable response to the risk would be. Mischaracterisation of the risk can lead to errors in properly evaluating the probability of the risk occurring and attributing greater control over the risk than the defendant possessed.
The Court of Appeal held the primary judge did not err in the manner in which he identified the risk of harm for the purposes of s 5B of the CLA. Here the “true source of potential injury” stemmed from the defective condition of the bridge which led to a risk of injury to a cyclist whose wheel became stuck in one of the gaps between the wooden planks leading to a fall. The more probable injury would be occasioned by impact with the bridge deck itself and the mechanism of the plaintiff’s injury (being thrown off the bridge) was a “more remote possibility”. The Court of Appeal considered that the “true source of potential injury” propounded by the plaintiff on appeal distracted from a proper evaluation of the probability of the real risk of harm. On the plaintiff’s formulation a reasonable response by the defendant would be the erection of guardrails of sufficient height to stop her falling off the bridge rather than repairing the true source of harm: the defective road surface.
The relevant question in identifying obvious risk is not whether the very facts that occurred could materialise, rather whether there was an obvious risk that the kind of thing which occurred might materialise.7 The Court of Appeal held that the relevant risk was obvious to a reasonable person in the plaintiff’s position having regard to the number of gaps between the planks and the possibility of a wheel being jammed when the bicycle was nearing the railing leading to a rider falling over the low guardrails.
The plaintiff bore the burden of establishing that the immunity for road authorities under s 45 of the CLA did not apply. The plaintiff had to establish that the council officer with the relevant authority to carry out the necessary roadwork had “actual knowledge of the particular risk the materialisation of which resulted in [her injuries]”. Because actual knowledge is required, reliance on imputed or constructive knowledge is precluded.8 The primary judge held there was no basis in the evidence for inferring the council officer had actual knowledge of the particular risk and the evidence “did not even come close”. The Court of Appeal held the primary judge did not err in this respect.
The test for public authorities liability introduced by s 43A of the CLA requires a determination to be made from the perspective of the authority with an objective element. That requires demonstrating that no public authority properly considering the issue could place its conduct as within the range of opinions as to what might constitute a reasonable act or reasonable failure to act.9 It was unreasonable not to erect a sign which was cheap and easy measure to mitigate the risk faced by cyclists. The Court of Appeal did not intervene in the primary judge’s finding in relation to s 43A of the CLA and the failure to erect a warning sign, however it agreed that s 5G of the CLA applied and there was therefore no duty to warn of what was an obvious risk.
The Court of Appeal agreed with the primary judge that the plaintiff had failed to establish that the defendant should have taken other precautions such as repair of the bridge or installation of a higher guardrail for which she contended and upheld the immunity under s 45 of the CLA. Part of the bridge was repaired shortly after the plaintiff’s accident at a cost of $315,062 and she submitted that, absent evidence from the defendant as to why it could not have been done sooner, the s 42 defence should have failed. The defendant submitted this analysis involved hindsight reasoning. The Court of Appeal agreed with the primary judge that the plaintiff could surmount the s 42 defence and did not establish that this bridge should have been accorded a higher priority than other bridges for which the defendant was responsible.
In relation to causation, the Court of Appeal agreed with the primary judge that even if the Council had identified the hazard to cyclists when the bridge was inspected in February 2008 it would not have been repaired by the time of the accident. The Court of Appeal also considered the evidence of the plaintiff that she knew before the accident that the way to avoid risks posed by the longitudinal gaps was to stop and avoid them and that the alternative was to keep riding across them at an angle. In the circumstances, the Court of Appeal would assess the plaintiff as guilty of at least 50% contributory negligence.
This judgment confirms that the proper identification of an obvious risk requires a prospective approach and does not involve reference to the precise mechanism of the plaintiff’s accident.
This judgment also highlights the difficulties for plaintiffs in surmounting the road authority immunity under s 45 of the CLA which requires that the authorised officer of the road authority have actual knowledge of the risk of harm and a sufficient period of time to implement improvement in the context of the authority’s other priorities.
This judgment is a further cautionary tale for plaintiffs seeking to navigate through the multitude of defences open to a road authority under the CLA. Despite surmounting the Council’s s 43A defence and establishing that it was unreasonable for the Council not to erect a warning sign, that finding was ‘trumped’ by the finding of obvious risk under s 5G of the CLA
- McColl JA, Macfarlan JA and Emmett JA.
- Beech‑Jones J.
- As defined in the Roads Act 1993 (NSW).
-  NSWCA 27 at .
- At .
-  HCA 42.
- Fallas v Mourlas  NSWCA 32.
- Curtis v Harden & Shire Council  NSWCA 314.