Case Analysis: Carey V Lake Macquarie City Council

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Carey v Lake Macquarie City Council is an appeal from the district court of New South Wales, concerning negligence. The appellant, Carey, was riding his bicycle through a public park before sunrise, which he did regularly. One morning the appellant took a path he had never cycled on before. He was injured after cycling into a bollard positioned in the middle of the path. The bollard was slightly visible as it was dark blue and the path was unlit. The appellant had crossed the path during the day, and had seen the bollard on numerous occasions. The path was not designed for cyclists’ use, but the respondent knew that it was frequently used as such. It was found at trial that the defendant owed the plaintiff a duty of care, but that duty was not breached. The appellant appealed on the issue of liability. Issues

The appellant submitted that the respondent was negligent in its placement of the bollard. He claimed that the positioning and colour of the bollard, combined with the lack of light, presented a risk for cyclists at night. From this submission came the main issue of the case: did the respondent’s placement of the bollard breach its duty of care? The respondent’s arguments on appeal were that the trial judge correctly found that it had not breached its duty of care, and if it had breached that duty, the appellant was 100% liable for contributory negligence. This argument gave rise to the second issue: if the respondent breached its duty of care, is the appellant guilty of contributory negligence, and to what extent? Issue 1: Did the respondent’s placement of the bollard breach its duty of care? The authoritative principle underlying this issue comes from the High Court in Wyong Shire Council v Shirt. It is that where there is a reasonably foreseeable risk of harm to the plaintiff, and the defendant does not respond to the risk in a manner that a reasonable person in the defendant’s position would, the defendant breaches their duty of care. In determining the reasonable person’s response to the risk the court must consider the likely severity of risk, the probability that the risk will materialise, the burden of taking precautions, and the defendant’s other conflicting responsibilities, including the social utility of the thing causing the risk. This principle is also reflected in s 5B of the Civil Liability Act 2002 (NSW), ‘general principles’. Since McClellan CJ at CL’s reasoning considers obviousness of risk as a factor, it is beneficial to first mention this concept. A risk is obvious when it can be readily appreciated by a person who comes upon it, at the time that the person comes upon it. On the facts, his Honour found that although the bollard was obvious to a person during daylight, it was far less obvious to the appellant as he encountered it at night. Reasonably foreseeable risk of harm

McClellan CJ at CL mentioned from Ghantous v Hawkesbury City Council, that although people are expected to avoid obvious risks, an allowance for inadvertence must be made. It follows that the harm posed by an obvious risk is foreseeable, despite the expectation that it will be avoided. His Honour highlighted from Edson v Roads and Traffic Authority that it could not be assumed that ‘most persons would take reasonable care for their own safety’. Ghantous also expresses that situational factors can mean obvious risks present a foreseeable risk of harm even to a person exercising reasonable care for their own safety. Applying these cases to the facts, the judges found that the risk posed by the bollard was foreseeable. Reasonable response to risk

In determining the reasonable person’s response to the risk, the judges considered the social utility of the bollard. It was accepted that its purpose was to prevent maintenance workers from driving on the path. It was of little benefit as a driver could easily avoid the bollard and...
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