Bicycle accident – failure to remove bollard – risk of harm – shared pathway

Facts

The respondent was riding an electric bicycle long a pathway in Ballina.  As the respondent was attempting to overtake pedestrians, she noticed a bollard.  This caused her to veer off the path and then correct back onto the path where she lost control of the electric bicycle, falling and suffering an injury to her left hip.

The trial judge found the appellant had breached its duty of care in failing to remove the bollard, and judgment was in favour of the respondent, with no contributory negligence apportioned. 

The respondent relied on the failure of Council to remove the remaining bollard, after another bollard was removed in December 2016, as to why it had breached its duty of care to take reasonable care for the safety of cyclists whilst using the footpath.

In June 2017 the appellant engaged independent engineers to provide a report which assessed the remaining single bollard as an occasional risk which severity was identified as minor. 

The report suggested that “there is only one bollard at the southern end of the northern break wall, which is unlikely to slow cyclists and may result in a cyclist colliding with a pedestrian at speed.”  The trial judge relied on the statement “unlikely to slow cyclists down” when making the determination that the appellant had breached its duty of care.

The appellant appealed the trial judge’s decision on the basis that it had not breached its duty of care by failing to remove the single bollard, relying on the position that the single bollard was providing a deterrence to some degree against the speed of cyclists using the pathway.  The primary focus on appeal was whether the appellant did breach its duty of care in failing to remove the bollard.

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Decision

1. Appeal allowed and Orders of District Court entered on 15 December 2022 be set aside.
2. In place thereof: Dismiss the Plaintiff’s amended Statement of Claim; Order the Plaintiff pay the Defendant’s costs of the trial;
3. Order that the respondent pay the appellant’s costs of the appeal.
4. Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Ratio

The court focused on the real issue at hand, as to whether the precaution of removing the bollard should have been taken.  At first instance, the trial judge relied on the wording “is unlikely to slow cyclists” when finding the appellant had breached its duty of care.

In the appeal, it was argued there were several problems with the finding of a breach of duty of care by reasoning that it found the appellant had not acted unreasonably in taking the view that the single bollard did serve some purpose in deterring the speed of cyclists using the path.

The respondent argued the removal of one bollard but not the other constituted an unreasonable hazard was not substantiated behaviour by the appellant.

However, the appellant submitted that reasonable care in response to the risk of a person colliding with a bollard “does not require the removal of the bollard or any warning beyond the visual warning its appearance gives”. 

In finding that the appellant had not breached its duty of care, the court relied on the fact there had been one bollard in place from 2016 without any known incidents, which implied the single bollard was effective in deterring cyclists from travelling too fast on the footpath. 

It was the appellant’s view that the single bollard continued to serve some purpose, and that leaving one bollard in place did not constitute an unreasonable hazard.

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Accordingly, the court found the respondent failed to establish the appellant had failed to take reasonable care for the safety of cyclists using the pathway by failing to remove the single bollard.

Further, Ward P, Mitchelmore JA and Basten AJA determined the trial judge did not take into account the respondent failed to take reasonable care for her own safety.

Aiden Warneke is a lawyer with Travis Schultz & Partners.