Collins v Clarence Valley Council  NSWCA 263
On 3 September 2015, the New South Wales Court of Appeal dismissed an Appeal brought by Dr Collins.
The decision will be of interest to occupiers in relation to the proper application of the law relating to:
1. obvious risks;
2. public authority clients regarding the allocation of their resources; and
3. road authorities regarding the section 45 immunity for failure to carry out road works.
In April 2008 Dr Collins, an experienced cyclist, rode in an organised charity ride. The ride required her to traverse a wooden bridge in a poor state of repair under the care and control of Clarence Valley Council.
Notwithstanding that that there was no warning sign, Dr Collins was aware of gaps between the planks of the bridge in which her wheels could become caught, but did not dismount. Instead, she attempted to zigzag across the bridge. However, the front wheel of Dr Collins’ bicycle became stuck in a gap between the wooden planks causing her to “somersault” over the low bridge railing onto a rocky embankment below. She suffered serious injuries.
At first instance, the Supreme Court characterised the relevant risk of harm to have been 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 Supreme Court held the Council was not liable for its failure to erect a warning sign on the basis that it was an obvious risk within the meaning of section 5F of the Civil Liability Act 2002 (CLA) and, by operation of section 5G, the Council’s duty of care did not extend to warning Dr Collins of that risk.
The Supreme Court also held that the further precautions Dr Collins argued ought to have been taken by the Council, namely:
(a) maintaining a regular system of inspection to identify defects in the bridge surface;
(b) repairing the bridge to remove defects in the bridge surface; and
(c) installing higher guard rails along the edge of the bridge;
were not required due to the operation of section 45 of the CLA which absolves road authorities from liability arising from risks of harm of which they have no actual knowledge.
Dr Collins’ Appeal was dismissed with costs. There were 7 grounds of Appeal, but for the purposes of this Case Law Alert we will focus upon the following 3:
1. the proper identification of the risk of harm and finding it was an obvious risk;
2. section 45 immunity for road authorities; and
3. section 42 protection for reasonable allocation of resources of a public authority.
Section 5F of the CLA defines an obvious risk as one which would have been obvious to a reasonable person. Obvious risks 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. Under section 5G of the CLA, a person is presumed to be aware of obvious risks unless he/she is able to establish he/she was not aware of the risk. A person will be held to have been aware of a risk if they are aware of the type or kind of risk, even if not aware of the precise nature, extent or manner of the risk. Under section 5H of the CLA, there is no duty to warn a person of an obvious risk, save for certain special exemptions not applicable in the present case.
In applying the obvious risk provisions in sections 5F and 5G, the Court of Appeal firstly had to identify the risk of injury. It found the identification of the risk of injury should be performed prospectively and it identified the risk as being of a bike rider’s momentum suddenly stopping by their wheel becoming caught in a gap between the planks, causing the rider to fall and suffer injury. It was not necessary to identify the risk of injury by reference to the precise mechanism of Dr Collins’ accident and it therefore did not matter that the possibility of Dr Collins falling from the bridge onto the rocks below might have been remote, as opposed to falling onto the bridge itself which was more readily foreseeable.
After the Court of Appeal identified the risk of injury, it relied on Dr Collins’ own evidence that she was aware of the gaps between the planks and had zigzagged to avoid getting her wheels stuck, to find that the risk was an obvious risk under section 5F of the CLA and that she was aware of the nature of the risk pursuant to section 5G of the CLA.
The consequence of these findings was that the Council was held to have owed no duty of care to warn Dr Collins of the risk of harm posed to cyclists by the gaps between the planks of the bridge pursuant to section 5H of the CLA.
s.45 – No liability for road authority for failure to take precautions
By virtue of section 45 of the CLA, a road authority has special immunity for failure to carry out road work (or consider carrying out road work) unless at the time of its failure to do so, it had actual knowledge of the particular risk of harm that materialised.
The Court of Appeal held that Dr Collins bore the onus of not only establishing that an employee/officer of the Council had actual knowledge of the risk of harm posed by the defective state of the bridge, but also that that employee/officer had sufficient authority to exercise the Council’s powers as a road authority.
The evidence at trial established that a Council employee had noted the general state of disrepair of the wooden bridge in the month before the accident. However, the Court of Appeal held that this was not a sufficient basis for finding the Council had actual knowledge of the risk as the Council employee did not have the requisite authority to have the bridge repaired.
This finding meant that, pursuant to section 45 of the CLA, the road authority Council could not be found liable for its failure to have repaired the bridge to address the risk of harm posed to cyclists by the gaps between the planks due to the appropriate employee’s lack of actual knowledge of that risk of harm prior to the date of the accident.
s.42 – Reasonable allocation of resources
Section 42 of the CLA provides public authorities with some protection from allegations that resources should have been allocated so as to ameliorate the identified risk of harm posed by its operations or assets.
Section 42 states that the following principles apply in determining whether a public authority has a duty of care, or has breached that duty:
(a) the authority’s functions required to be exercised are limited by the financial and other resources reasonably available to it;
(b) it is not open to challenge the general allocation by the authority of those resources;
(c) the functions to be exercised by the authority are to be determined by reference to its broad range of activities;
(d) evidence of its proper exercise of its functions may include compliance with general procedures and applicable standards.
At trial, evidence was adduced indicating that the Council had allocated approximately $15 million to spend on the maintenance of roads and bridges. Dr Collins argued that it was unreasonable of the Council to have failed to spend a portion of this money replacing the worn planks on the bridge on which she was injured, having spent money on the repair of other bridges in the months preceding the accident.
However, the Court of Appeal affirmed the Supreme Court’s decision that this argument constituted a challenge to the Council’s general allocation of resources and was therefore impermissible by reason of section 42(b) of the CLA.
The Court of Appeal has affirmed the prospective approach to be taken to the proper identification of an obvious risk, that does not require reference to the precise mechanism of the accident. Further the Court of Appeal has affirmed earlier decisions relating to immunity for road authorities where there is no actual knowledge by the appropriate officer of that road authority of the risk of injury, and the restrictions to challenge the reasonable allocation of resources.