Carey V Lake Macquarie City Council free essay sample

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. We will write a custom essay sample on Carey V Lake Macquarie City Council or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page 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 continue on the path, and furthermore, maintenance workers are under the Council’s control. Therefore the judges found the risk presented by the bollard was disproportionate to the benefit provided by it. The judges considered the effect of the severity of the risk by mentioning Shellharbour City Council v Johnson, which states that where the harm posed by an obvious risk is serious, an unreasonable response to the risk results in a breach of duty of care. It was found that the bollard created a ‘real and significant hazard for cyclists. ’ On these factors, the judges found that the respondent’s response to the risk was not reasonable. All judges agreed that because the placement of the bollard created a reasonably foreseeable risk, and the respondent’s response to the risk was not reasonable, taking into account he severity of the risk and the social utility of the bollard, the respondent breached its duty of care. Issue 2: Is the appellant guilty of contributory negligence, and to what extent? Determining contributory negligence The relevant principle regarding this issue comes from s 5R of the Civil Liability Act 2002 (NSW), ‘standard of contributor y negligence’. It states that when a person does not exercise the standard of care of a reasonable person in their position, determined on the basis of what the person knows or ought to know, the person is guilty of contributory negligence. The judges agreed that a reasonable person in the appellant’s position, having previously seen the bollard in daytime, would have considered the risk of harm before cycling on the path. The appellant did not consider this. It was found that he should have cycled slowly, keeping a careful lookout, which he did not. The appellant was hence found guilty of contributory negligence. Extent of contributory negligence The principle used to determine the extent of contributory negligence is from s 5S of the Civil Liability Act 2002 (NSW), ‘contributory negligence can defeat a claim’. It states that a court may find a 100% reduction in liability if the finding is ‘just and equitable’. In applying this, McColl JA regarded comparative culpability and the ‘degree of departure from the standard of care of the reasonable man. ’ His Honour found that the appellant’s culpability did not amount to 100%, as the respondent’s negligence was also causative of the appellant’s injuries. All judges agreed that the appellant’s liability due to contributory negligence was 50%. Defence: Voluntary Assumption of Risk To make out the defence of voluntary assumption of risk the principle is that the plaintiff must know about, fully appreciate, and voluntarily agree to, the risk. McClellan CJ at CL extracted these elements from several cases regarding this defence. McClellan CJ at CL interpreted the respondent’s pleas as that it meant to plead voluntary assumption of risk as a substantive defence. McColl JA and McDougall J disagreed with this interpretation. For purposes of completeness, McClellan CJ at CL’s reasoning of this defence will be discussed as if the respondent had pleaded it as a substantive defence. In his reasoning, his Honour again referred to obviousness of risk. His Honour found that a risk is obvious when it would have been obvious to a reasonable person in the plaintiff’s position, considering the plaintiff’s age, experience and characteristics. His Honour found the risk presented by the bollard would have been obvious to an experienced, mature cyclist, who knew of its existence. Section 5G(1) of the Civil Liability Act 2002 (NSW) states that ‘a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk’ unless proved otherwise. Since the bollard presented an obvious risk, his Honour presumed the appellant’s awareness of it. However, although the appellant voluntarily cycled on the path, he did not accept the risk, as he ‘did not think about it. ’ His Honour found that the appellant did not voluntary agree to the risk, and the defence of voluntary assumption of risk was not made out. Judges’ Conclusions All judges agreed that by the placement of the bollard the respondent breached its duty of care. This issue was correctly decided because it is necessary for authorities to make public areas safe for their foreseeable users. People trust that activities frequently carried out in a public area can be done with little risk of harm, and that authorities will control the area with this objective. If this duty were not upheld, many injuries would likely occur. Regarding contributory negligence, all judges agreed that the appellant was liable to a degree of 50%. This decision was correct because it is necessary to recognise that an injured party can contribute to their own harm. Without contributory negligence defendants could be wrongly held 100% liable, when the plaintiff was also at fault. Relevance of Obviousness of Risk This case illustrates the relevance of obviousness of risk at different stages of analysis. Within the judges’ discussions it is mentioned in relation to the duty to warn of a risk, breach of duty of care, and voluntary assumption of risk. Duty to warn of a risk Obviousness of risk can assist in determining whether a defendant has a duty to warn a plaintiff of a risk. Section 5H of the Civil Liability Act 2002 (NSW), ‘no proactive duty to warn of obvious risk,’ states that ‘a person does not owe a duty of care to another person to warn of an obvious risk.