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In April 2008, a cyclist participated in an annual
Sydney-to-Queensland charity ride.
The cyclist was an avid and experienced cyclist of 15 years and
had participated in the event nine times before.
Cyclist crosses bridge in poor state of repair
Along the route of the charity ride, it was necessary to cross a
bridge.
The bridge consisted of longitudinal timber planks which had
been spray sealed with asphalt. However, the asphalt had eroded in
various places.
The planks also had gaps of varying sizes between them, and some
planks were damaged with holes.
Approximately two months before the accident, the bridge had
been inspected by a council road inspector, who had observed some
gaps between the planks of the bridge.
Cyclist falls off bridge and is seriously injured
On reaching the bridge, the cyclist observed it to be made of
wooden planks with some gaps present.
She rode slowly across the bridge, going from side to side on a
slight angle to avoid getting caught in the gaps.
However, the front wheel of her bike became caught in one of the
gaps, causing the bicycle to stop suddenly.
The cyclist was seriously injured when she fell over the guard
rails of the bridge into a rocky ravine below, with the bicycle
still attached to her feet.
Cyclists sues council responsible for bridge
The cyclist sued the council that had the care, control and
management of the bridge for negligence.
The matter was heard in the Supreme Court of NSW in respect to
liability only, as the parties had agreed that, if successful, the
cyclist would be entitled to damages in the sum of $822,632.00.
The Supreme Court ruled against the cyclist, and she appealed to
the NSW Court of Appeal.
case a - The case for the cyclist
case b - The case for the council
The council owes me a duty of care to take reasonable care in
all the circumstances to avoid the foreseeable risk of injury to
cyclists created by the deteriorated condition of the surface of
the bridge.
The bridge was in a terrible state of repair and the
deteriorated condition of its surface created a risk of harm that a
cyclist may fall off the bridge and sustain injury. This risk was
foreseeable by the council and not insignificant.
The council breached its duty of care, failing to take
reasonable precautions. The council should have erected an
appropriate sign warning cyclists to dismount before crossing the
bridge. Had council erected such a sign, I would have dismounted
from my bicycle and walked safely across the bridge.
The council argues that it had no duty to erect a warning sign
because it was not required by law to warn in relation to
"obvious risks". However, it was not at all obvious that
a cyclist would suffer injury by plummeting over the side of the
bridge.
In any event, it can be inferred from the evidence that the
council knew about the poor state of the bridge, and it should also
have taken other reasonable precautions. Council should have
carried out roadwork and repairs to eliminate gaps in the bridge,
undertaken adequate inspections of the bridge, and installed higher
guardrails or fencing. Had the council done so, my accident would
not have happened.
Given that the council was negligent in not erecting a warning
sign and in failing to conduct necessary road works, the court must
grant my appeal.
The law does not require us to warn of an obvious risk.
The risk of harm here was not, as the cyclist argues, a risk of
plummeting over the side of the bridge. It was instead that a
cyclist might get a wheel stuck in a gap on the bridge and fall
over, even if just to the ground, injuring themselves. This risk
was an obvious one, and we therefore do not owe a duty to erect a
warning sign.
The cyclist also claims that we should have carried out road
works. However, as a roads authority, we are not liable for failure
to carry out road works unless we had actual knowledge of the
particular risk that materialised. As there is no evidence that the
council officer with the relevant authority to carry out the road
works had any actual knowledge, we cannot be held liable.
Given that we were not required to erect a warning sign and are
not liable for any failure to conduct road works, the court must
dismiss the cyclist's appeal.
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