Case Analysis: Carey V Lake Macquarie City Council
CASE ANALYSIS: BREACH OF DUTY OF CARE BY AN AUTHORITY AND CONTRIBUTORY NEGLIGENCE
Summary of Facts
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
Summary of Facts
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
Bibliography: Osborne v The London and Northwestern Railway Company (1888) LR 21 QBD 220 Pennington v Norris (1956) 96 CLR, 16 Ghantous v Hawkesbury City Council 2001) 206 CLR 512 Waverley Council v Ferreira [2005] NSWCA 418 Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 Wyong Shire Council v Shirt (1979) 146 CLR 40 Randwick City Council v Muzik [2006] 66 Roggenkamp v Bennett (1950) 80 CLR 292 [ 3 ]. (2001) 206 CLR 512 (‘Ghantous’). [ 4 ]. Carey [2007] NSWCA 4, [43], citing Ghantous (2001) 206 CLR 512, 580-581 (Gaudron, McHugh and Gummow JJ). [ 6 ]. (2001) 206 CLR 512, 581 (Gaudron, McHugh and Gummow JJ). [ 14 ]. Carey [2007] NSWCA 4, [12], quoting Pennington v Norris (1956) 96 CLR, 16.