Supreme Court New South Wales

• Medium Neutral Citation: Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
• Hearing dates: 17 to 21, 24 and 28 June 2013
• Decision date: 15 November 2013
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

(1) Judgment for defendant.

(2) Proceedings be dismissed.

• Catchwords: NEGLIGENCE - cyclist fell from timber bridge and was injured when wheel of bicycle became stuck in gap between planks - duty of care - relevance of funding constraints - Civil Liability Act 2002, s 42 - whether duty to warn owed - whether risk obvious - Civil Liability Act, ss 5F, G & H; NEGLIGENCE - liability - whether organised long distance charity ride a dangerous recreational activity - Civil Liability Act, s 5L - immunity of roads authorities under Civil Liability Act, s 45 - whether installation of sign constitutes "road work" - whether roads authority had actual knowledge of particular risk - exercise of special statutory power - Civil Liability Act, s 43A; NEGLIGENCE - breach of duty - resurfacing bridge - replacing bridge deck -; replacing individual planks - guardrails or fencing - erecting warning sign - negligent inspection - whether exercise of reasonable care would have required defect to have been acted upon - funding constraints - Civil Liability Act, ss 5B, 5C & 42.
• Legislation Cited: - Civil Liability Act 2002; - Local Government Act 1993; - Roads Act 1993; - Transport Administration Act 1988
• Cases Cited: - AC Billings & Sons v Riden [1958] AC 240; - Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128; - Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; - Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17; 247 CLR 345; - Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; - Benic v State of New South Wales [2010] NSWSC 1039; - Blacktown City Council v Hocking [2008] NSWCA 144; - Botany Bay City Council v Latham [2013] NSWCA 363; - Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512; - Buckle v Bayswater Road Board (1936) 57 CLR 259; - Colavon Pty Ltd t/a Thormans Transport v Bellingen Shire Council [2008] NSWCA 355; - Collins v Clarence Valley Council (No 2) [2013] NSWCS 816; - Council of the City of Greater Taree v Wells [2010] NSWCA 147; - Council of the City of Liverpool v Turano [2008] NSWCA 270; - Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418; - Falvo v Australian Oztag Sports Association [2006] NSWCA 17; - Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; - Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357; - Jaber v Rockdale City Council [2008] NSWCA 98; - Jones v Dunkel (1959) 101 CLR 298; - Kempsey Shire Council v Baguley [2010] NSWCA 284; - Laoulach v Ibrahim [2011] NSWCA 402; - Leichhardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22; - Leichhardt Council v Serratore [2005] NSWCA 406; - Lormine Pty Ltd v Xuereb [2006] NSWCA 200; - North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; - Paul v Cooke [2013] NSWCA 311; - Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115; - Roads and Traffic Authority v McGregor [2005] NSWCA 388; - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; - Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360; - Shaw v Thomas [2010] NSWCA 169; - Streller v Albury City Council [2013] NSWCA 348; - Sutherland Shire Council v Heyman (1989) 157 CLR 424; - Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51; - Turner v Australian Associated Motor Insurers Ltd [2006] NSWSC 1292
• Category: Principal judgment
• Parties: Dr Ann Page Collins - Plaintiff; Clarence Valley Council - Defendant
• Representation: Counsel: C.T. Barry QC, M.P. Tanevski (Plaintiff); R.S. Sheldon SC, B.R. Wilson (Defendant); Solicitors: Johnston Vaughan (Plaintiff); DLA Piper (Defendant)
• File Number(s): 2010/326308

Judgment

1 At about 3.00pm on Friday, 9 April 2008, the plaintiff, Dr Ann Collins, was riding her bicycle along the Bluff Bridge. She was participating in an organised charity ride. The Bluff Bridge is a wooden bridge and forms part of the Orara Way. It straddles the Orara River at Lanitza, New South Wales. The front wheel of Dr Collins' bicycle became stuck in a gap between planks on the bridge. Dr Collins fell over the low guardrails on the side of the bridge, with the bicycle still attached to her feet. She fell into a rocky ravine adjacent to the river. Dr Collins suffered significant injuries. It is common ground that if she was to succeed in these proceedings she would recover damages in the amount of $822,632.00 less any deduction for contributory negligence.

2 Clarence Valley Council ("the Council"), had the care, control and management of the Orara Way. Dr Collins alleged that her accident was caused by the Council's negligence. She contended that the Bluff Bridge was frequently used by cyclists, was in a poor state of repair and the Council either knew or ought to have known that the bridge was unsafe for cyclists and that steps were required to eliminate or minimise the risk to cyclists posed by the bridge. She submitted that the Council was required to, but did not, take reasonable care to prevent harm to cyclists such as herself who used the bridge by either undertaking various repairs to the bridge or at least erecting a warning sign.

3 The Council vigorously resisted the allegation of negligence. It sought to rely on a number of provisions of the Civil Liability Act 2002 (the "CLA") to resist Dr Collins' claim. As I will explain, a number of these provisions afford considerable protection to road authorities such as the Council in defending allegations of negligence.

4 For the reasons that follow I conclude that Dr Collins' claim must fail. I find that the relevant risk of harm in Dr Collins' case was the risk of injury to a cyclist if their wheels became stuck in the gaps between planks (and the holes in degraded planks). I consider that this risk was foreseeable and not insignificant. However I consider that this risk was an "obvious risk" to a reasonable person in Dr Collins' position and thus the Council did not have a duty to warn Dr Collins of that risk by, inter alia, the erection of a sign. This is so even though I conclude that was a reasonable precaution for the Council to undertake (CLA, s 5B(1)(c) and in fact it was unreasonable for it not to (s 43A).

5 Further I find that the Council is not liable for any failure to take any step to repair or inspect the Bluff Bridge because it has not been shown that the Council had actual knowledge of the particular risk the materialisation of which resulted in harm to Dr Collins (CLA, s 45). I also find that, given the Council's limited resources and other responsibilities including in respect of similar wooden bridges (CLA, s 42 and s 5C(a)), a reasonable person in the position of the Council would not have undertaken the precaution of repairing the bridge by the various means suggested by Dr Collins.

6 I reject the Council's contention that, at the time of her accident, Dr Collins was engaged in a "dangerous recreational activity" as defined by s 5L of the CLA, and for that reason it had no liability to her. I also reject the Council's contention that Dr Collins' own negligence contributed to her accident. However, in light of my other findings the proceedings must be dismissed.

7 To some the success of the Council in defending Dr Collins' claim may appear counter-intuitive. While riding her bike in a proper and lawful manner she encountered a wooden bridge on a public road in a poor state of repair. Dr Collins responded to the risk that she perceived was posed by the bridge in a reasonable manner, namely by weaving her way across her side lane of the bridge to avoid her wheels becoming trapped. Yet the accident still happened. The Council is able to avoid liability primarily because of its own ignorance of the risk posed by the structure whose responsibility it was to maintain and the limits on its own resources. Its ignorance of the risk does not reflect well upon its own practices. Whether the limits on its resources exist because of its own inefficiencies or because of factors beyond its control cannot be inquired into. However all of these matters reflect policy choices made by the Parliament in enacting the CLA. Whether those choices reflect a sensible approach to loss distribution that encourages efficient and safe practices of public bodies is not a matter for the Court to assess.

Circumstances of the accident

The bridge

8 As stated, the Bluff Bridge provides a low level crossing of the Orara River on the Orara Way at Lanitza. The Orara Way has two lanes, one for each direction of traffic, and extends from Coffs Harbour in the south to Grafton in the north. It is provides an alternative to the Pacific Highway, which is the main traffic route between those regional centres, and north-south access to the various small townships lying west of the highway.

9 As the Council report on the accident states, the bridge is located "in a large dip in the road and on a curve and so it is not apparent to the road user [until they are] a short distance away". On the northbound approach to the bridge there is a sealed road on a falling gradient which passes around a right hand bend that continues almost up to the southern end of the bridge. As a consequence of this bend the bridge only becomes visible to northbound traffic at about 120 to 125 metres from the southern end. Visibility for southbound traffic is similarly limited as the road curves to the right again at the northern end of the bridge.

10 The bridge has a timber deck, timber kerbs and "W beam" steel guardrails. The width between the kerbs is 6.85 metres and the height of the guardrails is between 65 and 73 centimetres. The bridge deck is 37.2m long, comprises four approximately equal spans, and is made of two layers. The first is made of transverse timber planks spanning beams of timber logs supported by timber log bents at either end of the bridge. The second upper layer is made of longitudinal timber planks which are 240 to 250 millimetres wide and 75 to 80 millimetres thick.

11 At the time of the accident, these planks were covered with spray seal bitumen, and a double white line marked the centre of the road. Some of the planks had deteriorated at the ends and were bolted down with coach screws. In addition, gaps of varying sizes existed between the longitudinal planks along the length of the bridge. A joint report was prepared by two experienced roads and traffic engineers retained by the parties, Messrs Grant Johnson and Jackson Clark. They agreed that the existence of the gaps would have been observable to a person riding a bike at a distance of about 50 metres from the southern end and that there would have been "some discernibility" of their width at about 20 to 30 metres from the southern end. This is consistent with a photograph taken 20 metres from the southern end by a private investigator retained on behalf of Dr Collins.

12 There was no sign specifically warning of gaps in the bridge or indicating a hazard for cyclists at the time of the accident. However, there were four warning signs on the northbound approach: (1) a "REDUCE SPEED" sign at about 360 metres from the southern end of the bridge, (2) a sign stating "BRIDGE SUBJECT TO FLOODING INDICATORS SHOW DEPTH" at about 233 metres, (3) a "Narrow Bridge" sign at 196 metres, and (4) a "LOW LEVEL BRIDGE" sign at 159 metres.

Dr Collins' evidence

13 In April 2008 Dr Collins took part for the tenth consecutive year in the annual Sydney to Surfers Paradise bicycle ride organised by the Engadine Rotary Club to raise money for the Father Chris Riley "Youth Off The Streets" charity. She had been a regular cyclist for about fifteen years, during which she cycled for about 100 to 120 kilometres on a weekly basis in the Sydney metropolitan area.

14 The bicycle ride commenced on 5 April 2008. It involved participants cycling in groups of ten to fifteen people with a support vehicle travelling behind the last member of each group. There were fifteen people in Dr Collins' group. On 9 April, Dr Collins and the other people in her group began cycling from Coffs Harbour, stopped at Glenreagh for lunch and then proceeded towards Grafton at around 2.00pm.

15 In examination in chief Dr Collins made the following observations about the Bluff Bridge. She said the bridge had "planks going straight up" and was narrow and on a bend. Mounting the bridge from its southern side involved moving around a right hand bend and on crossing the bridge going up and around a hill to the right. She said that traffic coming in the opposite direction, ie from the northern side of the bridge, "came around a left hand bend".

16 In light of the answers given by Dr Collins in cross examination, it is necessary to set out her description of the accident from her affidavit verbatim:

"8. At about 3PM on Wednesday, 9 April 2008 I was riding on the Bruxner Highway approaching the [Orara] River Bridge on my bicycle, the weather was cloudy and it was intermittently drizzling. I could see that the surface of the bridge was a wooden plank surface.

9. I knew when I saw the state of the surface of the bridge that I would have to ride across the planks at an angle to avoid getting my wheels caught in the gaps between the planks.

10. As I got closer to the bridge I looked at the end of the bridge which had a corner going to the right from my position and I knew that logging trucks used this road and I was cautious about being surprised by a timber truck coming around the bend at a high speed.

11. I rode on to the bridge and went with caution from side to side but on my side of the road to avoid being caught in the gaps in the planks forming the surface of the bridge.

12. The surface of the bridge I recall being very rough and causing a lot of vibration into the frame of my bicycle as I rode across the bridge going from side to side so my wheels did not jam.

13. As I started to get towards the end of the bridge I remember thinking that I should favour the left hand side of the road in case a logging truck around the corner which would put me in danger of being hit by a truck as the corner is quite blind, being almost at right angles to the direction of the bridge.

14. I made my way across to the left hand side of the bridge. When I was getting towards the end of the bridge my front wheel became caught in between the planks which formed the surface of the roads way and I fell to the left. I could not stop myself from going over off the bridge because there was not a sufficiently high railing which I could grab onto from where my bike wheel was caught in between the gaps in the planks." (emphasis added)

17 Dr Collins stated that Ms Catherine Kaadal was riding directly behind her at the time of the accident. She stated that she was "pretty close" to the end of the bridge, at an angle and towards the left-hand side of the road when the accident occurred. She described the accident in the following terms:

"The bike stopped very suddenly ... I don't know what it went into because I was looking ahead and not looking down and then I fell, fell to my left and I hit the side of the bridge and because it was so low, I just toppled over. It was like I somersaulted over the side. I'm not exactly sure when the bike actually left my feet and I tried to grab for the railing and the side of the bridge but I just couldn't hold on and then I just remember letting go and just going crash, crash, crash till I stopped on a rock further down."

18 Dr Collins said that when she went over the railing of the bridge, she grabbed the wooden portion of the bridge with her left hand but only managed to hold on for seconds. The bike was still attached to her feet.

19 Subject to one matter, I accept her description of the accident. The one matter of exception concerns her evidence as to her understanding of the state of the bridge and the risks it posed prior to and during her journey over it. In her oral evidence Dr Collins stated that on approaching the bridge she observed bolts "sticking up" on the bridge and was concerned to "wind [her] way across it so that [she would] miss the bolts" and avoid puncturing the wheels on her bicycle. She reiterated the concern expressed in her affidavit about the presence of logging trucks so that to avoid being hit she "[didn't] want to be anywhere near the middle of the road", especially as the trucks might cause a wind draft that could "wobble you on your bike".

20 In cross examination, Dr Collins was pressed by senior counsel for the defendant, Mr Sheldon SC, on what it was that she observed about the bridge prior to entering it that caused her to cross the planks at an angle, and in particular whether she realised there were "gaps" in the planks capable of causing her wheels to become stuck. Dr Collins stated that she was aware that there were "minor gaps" but that she did not anticipate "big, big holes". The cross examination continued:

"Q. Whatever was the size of gaps you perceived before going on to the bridge they were big enough for you to decide that you should ride at an angle arose the planks, weren't they?

A. No, you're not correct, what you say there. I just said to you that you ride across any crack at right angles not because they were big but because there was a crack there. I was anticipating that there would only have been sort of fine line cracks, not big, big gaps. And I would still ride across them at a slight angle.

Q. You talk about what you were anticipating. Can I point out to you that you used the words 'I knew' in paragraph 9.

A. That was really when I came on to the bridge you could see that the planks were there. Now, I was still anticipating that there would be narrow cracks, I wasn't expecting a great big hole.

...

Q. Do you say that paragraph 9 [of her affidavit] is dealing with the situation when you came on to the bridge?

A. Yes."

21 The reference to "paragraph 9" of Dr Collins' affidavit in this extract is to the emphasised paragraph from her affidavit set out in [16] above. The clear meaning conveyed by paragraphs 8 to 10 of her affidavit was that she realised before she entered onto the bridge that there were gaps in the planks of the bridge of such a size that they had the potential to catch her wheels (and that is why she rode across the bridge at an angle). I am satisfied that that was the case. The making of such an observation by her is consistent with the conclusion from the joint report that I have already noted. It follows that I reject so much of Dr Collins' oral evidence that asserts that she only saw "cracks" between the planks prior to entering the bridge or that sought to confine paragraph 9 of her affidavit to an observation that was only made once she was on the bridge.

22 However I accept her evidence that she did not anticipate that the gaps would prove to be "big holes", that at the time she fell she was travelling slowly and that she did not consider it even as a "remote possibility" when she rode onto the bridge that she would fall onto the river bank.

Ms Kaadal's evidence

23 Ms Catherine Kaadal was the only witness to the accident. In the afternoon of 9 April 2008 Ms Kaadal was riding with Dr Collins as part of a group of nine or ten people. At about 3.00pm, after it had stopped raining for approximately one and half hours, they were approaching the Bluff Bridge. Ms Kaadal was riding not "far behind" Dr Collins, such that she was just entering the bridge as Dr Collins' bicycle became stuck at about half way on the bridge. She was aware that logging trucks used the road and therefore approached the bridge with some caution.

24 Ms Kaadal stated that Dr Collins entered the bridge on the left-hand side, travelling diagonally towards the centre and back in a slow weaving motion. In her affidavit sworn 3 April 2013, Ms Kaadal stated:

"I started doing the same as it was obvious once you were on the bridge that the bridge was in a very poor condition and there were numerous gaps between the planks, which formed the surface of the bridge.

The gaps between the planks which formed the surface of the bridge looked like they were wider than the tyres on our bikes ...

I did not notice the state of the bridge and the deterioration of the bridge until I was on top of it." (emphasis added)

25 She explained that she and Dr Collins rode diagonally across the bridge "to avoid [our wheels] getting stuck in the large open parallel gaps [between the planks]" but that this was made difficult by the fact that some parts of the bridge had deteriorated to a greater extent than others. She said that Dr Collins was travelling diagonally to the left-hand side and was within about 1.5 to 2 feet of the railing when the wheel of her bike became wedged in a large gap in the bridge. She observed Dr Collins fall to her left and put her left hand on the railing, which was "below knee level", to try and balance herself. However, Dr Collins tumbled over the railing and the bike pulled her down as her shoes were still clipped to the pedals. She held on just long enough for the bike to become detached from her shoes and she fell into the ravine below.

26 Three matters should be noted about Ms Kaadal's evidence. The first relates to when Ms Kaadal observed the poor condition of the bridge and, in particular, the gaps in it. In her affidavit and oral evidence she stated that she did not observe the deteriorated state of the bridge and the gaps between the planks on it "until [she] was on top of it", but that when she was on the bridge those things became "obvious". In cross examination she rejected Mr Sheldon SC's repeated suggestions that she saw the gaps before riding onto the bridge. I accept her evidence. In that respect her experience was different to that of Dr Collins. However, she had been forewarned. In cross examination, Ms Kaadal stated that her father had told her two days prior that there were "big holes" in the bridge and that at a briefing the night before she was told "there was a bad bridge coming up and to be careful about it".

27 The second matter relates to the manner in which Dr Collins rode her bike on the bridge. In both her affidavit and cross examination, Ms Kaadal described Dr Collins entering the bridge on a diagonal and then "very slowly" weaving in and out on the left-hand side of the bridge to avoid getting the wheels of her bike caught in a gap. This description accords with Dr Collins' own account of how she negotiated the bridge (see [16]). The description of Dr Collins entering the bridge on a diagonal supports my finding that she identified gaps in the bridge before she entered onto the bridge.

28 The third matter concerns the location at which Dr Collins' wheel became stuck and she fell. Ms Kaadal stated that Dr Collins' bike became stuck approximately half way along the bridge, whereas Dr Collins stated that she was close to the northern end of the bridge and only had "another sort of big couple of pedals" before she would have exited the bridge onto the road.

David Sams' evidence

29 David Sams is a Senior Constable attached to the New South Wales Police Prosecution Command. Between October 2002 and October 2009, Senior Constable Sams was the sole officer attached to the Coramba Police Station. Coramba is located about 11 to 15 km to the north-west of Coffs Harbour. His allocated patrol areas included the Coramba, Glenreagh and Woolgoolga Police Sectors which encompass a significant part of the Orara Way mainly to the south of the Bluff Bridge. In his statement Senior Constable Sams stated that he travelled on the Orara Way nearly every day in the course of his duties.

30 In the afternoon of 9 April 2008, Senior Constable Sams received notification of the accident by police radio. Senior Constable Sams stated that on attending the scene he found Dr Collins on the western side of the bridge but on the northern bank of the Orara River. She was three to four metres back from the end of the bridge and he estimated that she had fallen at least four metres. He observed that she had suffered significant lower leg injuries. He spoke to persons at the scene and prepared a "COPS" report.

31 I note three matters about Senior Constable Sams' evidence. First, he observed gaps in the bridge. He noted that there was a layer of asphalt on top of the wooden planks of the bridge and that it had "rolled over the edges [of the planks]" through wear and tear so that there were gaps between the planks through which he could see the river below. This was consistent with his statement in the COPS report that "[t]he bridge flooring has exposed cracks between the wooden planks between the bitumen seal".

32 Second, in relation to the size of the gaps, he stated that they were between ten and twenty millimetres. He said he was able to put two fingers into the gaps in some places in the area of the bridge where Ms Kaadal told him the incident occurred.

33 Third, Senior Constable Sams described a significant level of cyclist usage of the Orara Way. I describe this further below.

Location of wheel entrapment and size of the gaps on the bridge

34 As I have stated, the Bluff Bridge is 37.2 metres and is made of four spans of longitudinal planks of more or less equal length. In his report Mr Clark opined that, given the length of the bridge, the path of Dr Collins' bike before its wheels became jammed, and the alignment of the road and bridge at its northern end, the wheel entrapment likely occurred on the northernmost span or the northern end of the span immediately before it. He also stated that in order for Dr Collins to have fallen over the western guardrail she was probably within one metre of it. Mr Johnston agreed with Mr Clark's observations and I accept them. They accord with Dr Collins' evidence that she was moving left and "pretty close" to the end of the bridge when the accident occurred, Senior Constable Sams' evidence that she had fallen three to four metres back from the end of the bridge, and Ms Kaadal's evidence that she was within 1.5 to 2 feet of the guardrail at the time of wheel entrapment.

35 Dr Collins did not give evidence on the size of the gaps on the bridge, except to say that she did not recall seeing big gaps or holes on the first part of the bridge when she came onto it. Other witnesses gave evidence on the state of the bridge in general terms, but did not make any specific observations about the nature of the gaps at the location where the wheel was trapped.

36 Ms Kaadal observed that the bridge was in very poor condition, that there were numerous gaps between the planks along the length of the bridge and that these gaps "looked like they were wider than the tyres on [the bikes that she and Dr Collins were riding]". Mr Peter Cameron, a private investigator hired by Dr Collins to investigate the bike accident, gave evidence consistent with that observation. In his report dated 20 July 2008 he stated that on attending the bridge in late June he saw:

"... there [were] gaps virtually between all the timber decking and the bitupave mix ... result[ing] in gaps of 4-5cm or less occurring on a large area of decking and these gaps [were] easily wide enough for a bicycle tyre to become jammed." (emphasis added)

37 Senior Constable Sams gave a more conservative estimate of the size of the gaps he saw along the length of the bridge, stating they were between 10 and 20 millimetres. As I have stated, Senior Constable Sams also indicated at trial that he inspected that area of the bridge at which he was told by Ms Kaadal the accident occurred. He said he was able to fit two fingers, which he would estimate to be an inch and a half in diameter, or his first knuckle, which he approximated was 15 millimetres wide, into some gaps in that area. The difficulty with this observation, however, is that it suffers from the defect of Ms Kaadal's observation as to where on the bridge the accident occurred. In examination in chief she stated that she saw Dr Collins' bike become stuck approximately half way across the bridge and that this was where she told Senior Constable Sams the bike was located at the time of the incident. I have already found that the bike was stuck on the northern part of the bridge, not halfway along the bridge.

38 Attached to the accident report of the Council's Bridge Engineer, Mr Jeff Madden, were four photographs taken by him on 16 April 2008. They were of the bridge deck at each of "Span 1", "Span 2", "Span 3" and "Spans 3 & 4". These photographs, including of "Spans 3 & 4", show long parallel lines running between the longitudinal planks, an uneven bitumen covering that has completely eroded in some places, and bolts sticking up in the middle of some planks. Some cracks and cavities of varying sizes are also apparent in the bridge's surface, particularly near the bolts which the report stated had been used to screw down "boards [that had] deteriorated at the ends".

39 Also tendered were a number of photographs taken by a husband and wife, Mr Michael Field and Mrs Patricia Field, who had also participated in the Sydney to Surfers Paradise bike ride. These photographs were taken on 13 April 2008 and were said by Senior Constable Sams to be consistent with his own observations of the bridge on the day of the accident. Some of them show Mr Field placing his hand or arm in various cracks and gaps in that surface. A number were described as being of "[the] left hand side, but more on the northern end of the bridge rather than the southern end". That description of them is consistent with what is shown in the photograph Mr Madden took of the northern part of the bridge at "Spans 3 & 4".

40 In their joint report, Mr Clark and Mr Johnston agreed that Mrs Field's photographs showed "gaps between planks due to timber movement and gaps where short lengths of the ends or the corners of timbers have broken away" and estimated their width. In those photographs, described as being of the left hand side of the bridge "but more on the northern end", the gaps between the planks were said to be around 12 to 17mm, 20 to 30mm, 30 to 35mm, 30 to 40mm, and 30mm respectively. Of these gaps, most were relatively short but the second was of considerable length.

41 Mr Clark and Mr Johnston agreed that the width of the tyres of Dr Collins' bike was between 23 and 25mm. At trial it was suggested to them that a tyre 23mm wide would fit down a gap between planks which is more than 23mm wide. Mr Johnston initially responded that it would and that it would also fit in a gap slightly less than 23mm, taking into account weight. However he later qualified his response and agreed with Mr Clark that it depended on the length and depth of the gap, as well as the speed at which the bike is travelling. He stated:

"... if it was a very short gap and not much wider, you wouldn't fall in it, especially if you were going fast. ... but once [the gap] is the width of the wheel or wider, if I am going slow enough that I can drop down into it, it only needs to be relatively short. So, speed is the other factor that determines how much the likelihood is of getting stuck in those gaps." (emphasis added)

42 I accept that evidence. It is consistent with the characteristics of the bridge and the description of the accident. I find that Dr Collins' wheel became entrapped in a gap wider than 20mm and that gaps of this kind existed on the left hand side of the northern end of the bridge, at the site where she became stuck near the guardrail. Furthermore, in light of my finding that Dr Collins was travelling across the bridge very slowly (see [19] and [27]), I find that gap only needed to be relatively short for the wheel to become wedged.

Council hierarchy

43 The evidence identified that the relevant hierarchy within the Council was as follows. At the relevant time Mr Tim Jenkins held the position of manager of operations. The person with responsibility for the safety of bridges was the bridge engineer, Mr Madden. Mr Madden reported to Mr Jenkins. Reporting to Mr Madden was the foreman for bridges, Mr Brian Castle. Mr Jenkins gave evidence but Messrs Madden and Castle did not. Much was sought to be made by Dr Collins of the absence of Mr Madden from the witness box.

44 It appears that standing outside that immediate hierarchy was the system of roads inspectors. According to Mr Jenkins the roads inspectors reported to the works engineers, one engineer having responsibility for the east and the other for the west. The Bluff Bridge falls within the west region and the relevant works engineer for that region was Mr John Perriott. The relevant roads inspector for the area including the Bluff Bridge was Mr Roger Bailey. He said that he reported to the roads supervisor, Mr Gary Davis. Both Mr Bailey and Mr Davis were called to give evidence. Mr Perriot was not. Mr Davis was a roads supervisor who from time to time drove along the Orara Way and inspected the roads. Contrary to what appears to have been suggested by Mr Bailey, Mr Davis denied that bridges fell within his area of responsibility.

45 The Council also called evidence from its risk officer, Ms Leanne Crichton. She stated that in June 2008 and again September 2012 she carried out searches and made inquires of the Council's Customer Request Management System database and Data Works System, as well as its Operations Department and Records Department. She said that she could not find any record of any incidents involving cyclists on the Bluff Bridge prior to that involving Dr Collins.

Use of the Bridge by cyclists and Council knowledge

46 Two potentially significant issues of fact were the level of usage of the Bluff Bridge by cyclists and the Council's knowledge of that level of use.

47 Senior Constable Sams stated that in his seven years as the officer in charge at Coramba he travelled on the Orara Way nearly everyday. He said that in that time he saw individual cyclists and training groups using the road on a "weekly basis" but mainly on the weekend, tourists using the road on "either side of [our] winter period" and triathlon and cycling clubs using the bridge "[n]early every weekend". He also stated that he knew "formal races" that ran along the length of the Orara Way were held on an annual basis, finishing in Glenreagh, and which involved "groups of at least 50 plus".

48 Evidence to a similar effect was given by Mr Terry Flanagan, who resides on a property adjacent to the bridge on its south-western side and who travels on it daily to get to work in Grafton. In an interview with Mr Cameron on 20 May 2013, the transcript of which was tendered at trial, he stated that he saw cyclists on the Orara Way extremely frequently and local cycle clubs fairly regularly. He said that he has seen large numbers of cyclists, between 20 or 30 up to 200 accompanied by "warning vehicles" every second weekend and agreed that it was "the same situation with cycle numbers" in around 2008.

49 However, the Council employees called to give evidence gave far more conservative accounts about the level of cycle traffic on the Orara Way.

50 Mr Jenkins denied that he knew that the cyclists used the bridge on a regular basis. He said he only drove along the Orara Way about two to four times a year and could not recall ever seeing a cyclist use the road. He denied that he was aware that tourists cycled on the road. He said that it was his observation that they travelled between Coffs Harbour and Grafton via the Pacific Highway.

51 In his statement Mr Jenkins stated that the Council was not advised of the proposed route of the 2008 Sydney to Surfers Paradise Ride in which Dr Collins participated. He stated that a search of the Council's record systems undertaken by both the "Operations" and "Records" sections of the Council did not reveal any documentation that was received by the Council from the organisers of the Ride for that year or any prior year. He stated that if such requests are received it would have, inter alia, required a risk assessment to be carried out. Ms Crichton gave evidence to similar effect.

52 However on 25 March 2008 the Coffs Harbour Cycle Club wrote to the Council's General Manager seeking permission to conduct "road racing" in the Glenreagh area on the first Saturday of each month between April and October of that year. It indicated that the road racing would be conducted "along the Orara Way either north towards the Armidale Road or south as far as Coramba". It also indicated that the Club would conduct one major race, being the annual Grafton to Coffs Harbour road race, which would be held on 7 June 2008 and which would proceed for the most part along the Orara Way. In cross examination, Mr Jenkins accepted that he knew when he received the letter in March 2008 that the proposed annual road race would pass over the Bluff Bridge. He also agreed that it was a possibility that monthly road racing in the Glenreagh area would pass over the bridge.

53 Mr Davis stated that he drove along the Orara Way "quite often" to check on road crews and that could be up to five times a week. In his statement he said that he had only observed cyclists travelling on the Orara Way "rarely", ie approximately once every twelve months, and said that he had never seen a cyclist on the Bluff Bridge. In cross examination he stated that he had only seen groups of cyclists at the Grafton end of the Orara Way.

54 In his statement Mr Bailey stated that he never saw a cyclist on the Bluff Bridge although he described observing cyclists in various parts of the Orara Way. Ultimately he agreed that the Orara Way was a popular route for cyclists, but he said that it was less popular than the Pacific Highway. He stated that he was aware of both the Grafton and Coffs Harbour cycle clubs. He stated that as a Council Roads Inspector he had travelled along the Orara Way four to five times a year on weekdays and about half those times he saw cyclists, usually in groups of three or four. He travelled along the Pacific Highway more frequently and saw cyclists using it two to three times a week.

55 Various documents were tendered concerning cycling in the area, but none of them assisted in determining the level of cyclist usage of the Bluff Bridge. I will address one of those documents upon which senior counsel for Dr Collins, Mr Barry QC, placed particular reliance. He pointed to a draft report commissioned by the Council dated 10 January 2008 and entitled "Bike Plan and Pedestrian Access and Mobility Plan" said to reveal that the Council knew the Orara Way was a popular route for cyclists, particularly tourists. The apparent objective of the report was to provide a comprehensive strategic approach to identifying a cycling and pedestrian network in the Clarence Valley Council Area. Mr Barry QC relied on two particular references in the report. The first was to the NSW Coastline Cycleway Project managed by the Department of Planning, which made grant funding available to relevant coastal councils annually and on a dollar for dollar basis. The report stated that the project "aims to create a continuous cycling route along the NSW coast from the Queensland border to the Victorian border". Mr Barry QC contended that this necessarily involved cyclists travelling along the Orara Way to Grafton to go north. That contention was misconceived. Page 16 of the report outlined the proposed route for the Coastline Cycleway in the Council area. No part of the route involves the Orara Way.

56 The second reference identified was to a 2002 Lonely Planet publication entitled "Cycling Australia". The report states in a footnote that that publication "contains a ride from the Gold Coast to Melbourne that largely follows the Coastline Cycleway route". That part of the ride which falls within the Council area is covered in "Cycling Australia" by a suggested route entitled "Coffs & Dorrigo Circuit". No part of that route traverses the Orara Way, let alone the Bluff Bridge. Accordingly, although the Council accepted that it received the draft report before the accident, I do not accept that the report put it on notice as to level of cycle traffic on the Orara Way.

57 I am satisfied that Senior Constable Sams' and Mr Flanagan's evidence described the actual level of the usage by cyclists of the Orara Way including across Bluff Bridge. Given the interest expressed by the cycling club in March 2008 it seems likely that, prior to then, there was a significant level of recreational use of the road, at least on weekends. It seems unlikely that the cycle club would approach the Council unless at least some of its members regularly used the road. In any event Senior Constable Sams' evidence confirms a relatively high level of recreational use on the weekends. Of the council officers who gave evidence on this issue only the evidence of Mr Bailey and Mr Davis is of any significance. Mr Bailey accepted that it was a popular route for cyclists and it is otherwise unlikely that he made any observations on weekends. I do not accept that Mr Davis accurately described his observations of the level of usage by cyclists.

58 Equally I accept that the Council was not made aware of the charity bike ride in which Dr Collins participated. I accept both Mr Jenkins' and Mr Bailey's description of their understanding of the level of cyclists' usage of Orara Way and the Bluff Bridge. As stated I do not accept Mr Davis' assertions as to what he observed. I consider it likely he observed a much greater usage than he asserted. Mr Bailey stated that from time to time Mr Madden drove along the Orara Way. It was not stated how often he did that. However, given his position in the hierarchy, I expect it would be somewhere between that of Mr Jenkins and that of Mr Davis. I infer that Mr Madden would have at least been aware that cyclists used the Orara Way on a regular basis and it was likely that from time to time they crossed the Bluff Bridge.

Inspection and maintenance work on the Bridge

59 On or about 6 December 2006, Mr Castle, the Council's then "Acting Field Supervisor - Bridges" inspected the Bluff Bridge. This inspection appears to have been carried out in response to a report made to the Council that a tyre on a motor vehicle was blown by a spike on the bridge. On completing his inspection Mr Castle reported to Mr Jenkins "that the timber bridge is in good condition with no obvious loose spikes or bolts".

60 Nevertheless, a document recording the Council's responses to questions posed in a letter from its insurer following the accident states that various repairs were carried out to the bridge on 6 and 7 December 2006. One running deck plank was replaced. Numerous planks were tightened by affixing coach screws. The abutments were bolted down and bumps at the abutments were removed. In addition, minor repairs to the guardrails were carried out.

61 As noted, as at 2008 the roads inspector responsible for the area of the Orara Way that included the Bluff Bridge was Mr Bailey. Even though Mr Bailey said that he conducted inspections every three months, the next recorded inspection of the bridge was undertaken on 14 February 2008. Mr Bailey said that on that day he conducted an inspection of a number of sections of the Orara Way that included the Bluff Bridge. Mr Bailey stated that he conducted his inspection of the bridge by "walk[ing] across the bridge, checking for signs of loose planks, bolts and splinters". He said that he was "looking at the bridge deck to make sure the surface did not present a risk of planks, or parts of planks flying up as vehicles travelled over them, or of bolts causing damage to car tyres".

62 On the day of his inspections Mr Bailey completed a "Road Inspection Form" of the segments he reviewed. Mr Bailey stated that he did not include "any issues relative to the [Bluff Bridge] on the list of matters included in [that form]" because he "did not detect any safety issues which might pose a threat to vehicles". He stated that the he "did not have in mind when inspecting the bridge its safety for cyclists" and that he did not report "to any person in Council any issues relating to the suitability of the Bridge for cyclists".

63 Mr Bailey referred to photographs taken of the Bluff Bridge just after Dr Collins' accident and stated that they showed that the condition of the bridge was significantly worse than when it was inspected in February 2008. He reiterated this in cross examination and stated that the bridge could deteriorate in a short period especially as a result of the passage of logging trucks over the bridge.

64 Mr Bailey ultimately agreed with the following concerning what he observed during his inspection in February 2008:

"Q. But you agree now, do you not, that in the condition that that bridge was when you saw it on 14 February 2008, there were gaps between the planks on the bridge, weren't there?

A. Yes.

Q. And those gaps were wide enough to catch or trap a bike of the kind that you had seen travelling along the Orara Way in the direction towards and from the Bluff Bridge on the occasions that you'd been driving along that road, didn't you?

A. Yes.

Q. You knew that then, didn't you?

A. What do you -

Q. You knew that the gaps that were on that bridge were of a width that if someone riding a bike of the kind that you had observed to be proceeding up and down the Orara Way on half the occasions you'd been driving along there, if a bike of that nature went into one of those gaps, the wheel would be trapped. I'm suggesting to you you knew that then.

...

A. Yes."

65 However in re-examination Mr Bailey was asked:

"Q. Did you turn your mind to the possibility of the wheel of a bike such as the one you've just been asked about becoming trapped in one of the gaps on the bridge at the time of your inspection in February 2008?

...

A. No."

66 On 11 April 2008 an article appeared in a local newspaper about Dr Collins' accident. The article came to the attention of Ms Crichton and Mr Jenkins. Mr Jenkins requested a report into the accident from Mr Madden. This led to an exchange which resulted in the erection of a sign attached to the existing "Low Level Bridge" signpost, which was 159 metres from the southern end of the bridge. The sign displayed a picture of a bicycle and underneath that stated "Cyclists Dismount, Beware of Gaps in Bridge Deck". The cost of the sign, excluding labour, was $190.30. At some point, most likely at the same time, a similar sign was placed 271 metres to the north of the bridge.

67 The exact timing of the erection of the signs is unclear. The Council's material included an internal email from Mr Madden ordering two signs on 17 April 2008. Mr Jenkins stated that Mr Madden had the authority to authorise the expenditure necessary to construct the signs "in consultation with our governance section". In any event I am satisfied that both signs were erected by the end of April 2008. (Exactly how the cycle club was able to conduct its proposed annual road race across a bridge that advised riders to dismount was not a matter explored in the evidence.)

68 After these signs were erected, Peter Cameron rang the Council on 27 June 2008. He eventually spoke to Mr Davis. He asserts that he told Mr Davis that he was "trying to find out if the signs were erected prior to or after" Dr Collins' fall and that Mr Davis said "[w]ell we have recognized there was a problem there and unfortunately the signs were erected after the accident". Mr Davis denied that he said "there was a problem". He also denied being aware of any problems with the bridge before 9 April 2008. I observed both of them give evidence and considered they were both honestly doing their best to recall the conversation. In the end result I am not satisfied that I prefer one witness over another so that I cannot act on the basis that the conversation occurred. However, even if I had accepted Mr Cameron's version, it would not have advanced the matter. An acceptance after the event by a Council officer acting with the benefit of hindsight that there was a "problem" does not convey anything as to whether the Council was aware of it prior to the accident (CLA, s45) or add much, if anything, to the analysis of whether, viewed prospectively, there was a relevant risk of harm that was or should have been apparent to the Council (CLA, s 5B).

69 In either November or December of 2008, the Council commenced further maintenance work on the bridge. The minutes of the Council's Ordinary Meeting on 16 December 2008 recorded the following in relation to the Bluff Bridge:

"Council is currently replacing the decking on the bridge as a maintenance activity. Replacement of decking has been completed to the end of Span 2."

70 The cost of this deck reconstruction was approximately $77,000. Mr Jenkins identified Mr Madden as the relevant officer with authority to spend such sums on bridges although he needed approval from Councillors (see below).

The Council's financial resources and competing responsibilities

71 As further discussed below, the Council placed significant reliance on s 42 of the CLA which specifies a number of "principles" to be applied in determining whether a public authority has a duty of care or has breached any such duty. Those principles include that the functions required to be exercised by bodies such as the Council are limited by the financial and other resources that are reasonably available to it, that the general allocation of resources by the Council is not open to challenge, and the functions required to be exercised by the Council are to be determined by reference to the broad range of activities that the Council performs.

72 With a view to invoking these principles the Council adduced evidence as to the range of its functions and the resources available to it.

73 The Council is responsible for a broad range of activities pursuant to the Local Government Act 1993. Mr Ashley Lindsay, the Council's Manager of Finance and Supply, gave evidence that the Council provided services in the following areas: governance, public order and safety, health, community services and education, housing and community amenities, water supplies, sewerage services, recreation and culture, mining, manufacturing and construction, transport and communication, and economic affairs.

74 Under the Roads Act the Council has a function of care, control and management of all public roads in the local government area (see [103]). In 2007/08, the Council had responsibility for 2,480.74 km of road. Of that, 785.5 km comprised local rural sealed roads and 324.49 km comprised regional sealed rural roads, which included the Orara Way.

75 The "resources reasonably available" to the Council at that time included the resources that it already had and that it might reasonably be expected to expend in the exercise of its functions, and any that might reasonably be provided to it (Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at [393]).

76 Annexed to Mr Lindsay's affidavit were the Council's financial reports for the financial years 2004/05, 2005/06, 2006/07 and 2007/08. They revealed the following about the Council's financial allocations in the Council's budget. In the year ended 30 June 2005, the Council incurred a deficit of $8.7 million excluding grants and contributions provided for capital purposes and a surplus of $5.4 million inclusive of such amounts. Its operating expenses for Transport and Communication were $23,373,000 and its operating revenues were $11,483,000, representing a shortfall of $11,890,000. In relation to the constituent cost centre of "Bridges - Sealed Rural Roads: Regional", its expenses were $153,000 and its revenues were $223,000 (the whole amount being capital revenues), representing a surplus of $70,000.

77 In the year ended 30 June 2006 the Council incurred a deficit of $9.7 million, excluding grants and contributions provided for capital purposes, and a surplus of $6.3 million inclusive. There was a shortfall within transport and communications of nearly $12 million, the Council's income from operations relating to transport and communications being $11,528,000 and its expenditure being $23,478,000. In relation to the cost centre of "Bridges - Sealed Rural Roads: Regional", its expenses were $421,000 and its revenues were $96,000 (the whole amount being capital revenues), representing a surplus of $325,000.

78 In the year ended 30 June 2007 the Council incurred a deficit of $7.2 million excluding capital amounts and a surplus of $25.7 million inclusive of capital amounts. There was a shortfall within transport and communications of $11.5 million, the Council's income from operations relating to that service being $11,654,000 and its expenditure being $23,167,000. In relation to the constituent cost centre of "Bridges - Sealed Rural Roads: Regional", its expenses were $243,000 and its revenues were $851,000 ($600,000 of that amount being capital revenues), representing a surplus of $608,000. A schedule entitled "2006/2007 Bridge Works Job Numbers" indicates that the budget for that cost centre in the 2006/07 financial year was $261,000 whereas expenditure was only $11,500 and the budget for one item in that cost centre called "Eaton Creek Bridge" was $1,372,000 whereas expenditure was only $46,154.

79 In the year ended 30 June 2008 the Council incurred a deficit of $9.3 million excluding capital amounts and a surplus of $26.9 million inclusive of capital amounts. There was a shortfall within transport and communications of nearly $10 million, the Council's income from operations relating to that service being $15,845,000 and its expenditure being $25,418,000. In relation to the constituent cost centre of "Bridges - Sealed Rural Roads: Regional", its expenses were $73,000 and its revenues were $870,000 ($777,000 of that amount being capital revenues), representing a surplus of $797,000.

80 The demands on the Council's infrastructure budget were substantial. In 2007/08, the Council's maintenance budget for roads and associated infrastructure was $10,670,623, whereas it was estimated that the cost of bringing the roads under its control to a "satisfactory standard" was $90,631,267. Similarly, the budget for annual inspection and maintenance of bridges within the Council area was $315,062, whereas the estimated cost of bringing bridges to a "satisfactory condition" was $3,935,354. This was notwithstanding the fairly narrow definition of "satisfactory". A bridge was assessed as satisfactory if it was structurally sound and its major components did not need to be replaced.

81 The Council submitted that the amount of funds allocated to "transport and communication" in a fiscal year involved the "general allocation" of resources and that pursuant to s 42(b) it could not be challenged. I accept that is the case (see Council of the City of Liverpool v Turano [2008] NSWCA 270 and Refrigerated Roadways at [403]). In any event, no such challenge was made. Nor was any challenge made to the Council's prioritisation of projects within the "transport and communications" budget.

82 In cross examination Mr Lindsay agreed that in the year ended 30 June 2007 the Council had allocated approximately $15 million in cash to spend on the maintenance of roads and bridges. He said that Council staff had delegated authority to spend up to an amount of $5,000 without Council approval. For approval of expenditure above $5,000 Council approval was required and that would take approximately six to eight weeks.

83 Mr Barry QC pointed to other potential sources of revenue available to the Council, namely the NSW Government's "Timber Bridge Partnership Program" (the " Timber Bridge Partnership") and a federal grants scheme administered by AusLink called the "Strategic Regional Programme" (the "AusLink scheme") as evidence that "there [was] money; [you] just [had] to ask for it and identify which particular bridges ought to be given priority".

84 I will deal with each in turn.

The Timber Bridge Partnership

85 The Timber Bridge Partnership was a three-year initiative of the NSW State Government providing funding assistance to Councils for the renewal of timber bridges. It commenced in the 2006/07 financial year.

86 A letter dated 14 August 2006 from the Mayor of Clarence Valley Council, Mr Ian Tiley, to the then Minister for Roads requested that the Minister restore the "Regional Roads Timber Bridge Program", which had been discontinued ten years prior. It states:

"For several years after the program discontinuation, there were no allocations to the former Councils in the valley for Regional Roads Bridges replacement. The former program merged into the REPAIR program and no council bridges at that time met the new criteria which were heavily weighted in favour of roads. ... This has [meant that the] Council is in effect ten years behind with its bridge program due to the deteriorating state of timber bridge infrastructure.

Council has 21 bridges on Regional Roads which all will require replacement over time and some of these structures are urgently requiring major attention. The estimated total cost at this time is around $18 million ..."

87 There was tendered a document from the Council that bore the date 8 September 2006 which appears to list in priority the 21 bridges referred to in this letter. The Bluff Bridge was listed eleventh in the order of priority for replacement. It should be noted that during the hearing I published a ruling on evidence in which I found, inter alia, that it was outside the pleaded case for Dr Collins to challenge the priority that the Bluff Bridge was given in the process of seeking funds under the Timber Bridge Partnership (Collins v Clarence Valley Council (No 2) [2013] NSWCS 816 at [10]).

88 The Minister for Roads responded to the Mayor in a letter dated 15 December 2006 announcing the Timber Bridge Partnership. It stated that the program would provide $20 million per year for three years commencing in the financial year 2006/2007 and target 285 council managed timber bridges on "Regional Roads". It further stated that funding would be provided on a "dollar for dollar" matching basis and that the Road & Traffic Authority (RTA) Regional managers would be writing to councils to provide details about the program guidelines and the "process for prioritising bridges". The correspondence between the RTA and the Council was not tendered.

89 Mr Jenkins explained that the process involved in seeking funds assistance under the Timber Bridge Partnership was that:

"[The] Council would submit programmes and then the State Government would come back with in effect an offer of funds and it was up to Council to make a determination of whether they either accepted that in whole or in part".

As part of that process, the Council, namely its bridge engineer, liaised with the RTA to determine a priority list for the bridges on the Council's regional roads.

90 A Council document reveals that the proposal for the Bluff Bridge was to "replace the existing timber bridge with a two-lane concrete structure". Its estimated total cost was $2,048,760. In cross examination, Mr Jenkins stated that he understood it was submitted to the RTA with similar proposals for "all [the Council's] timber bridges at that time".

91 An extract from the "Minutes of the Ordinary Council Meeting of Clarence Valley Council" on 19 February 2008 indicates that the Council received an offer from the RTA for a contribution under the Timber Bridge Partnership for funding towards the replacement of seven bridges on Regional Roads in the 2008/09 financial year. It records the following resolution:

"That Council:

1. accept the offer of $2,382,500 grant funding from the Roads and Traffic Authority for the replacement of seven bridges on Council's Regional Roads;

2. contribution of $2,382,500 be funded by $482,500 from the 2008/09 Block Grant and the balance of $1.9m by a 20 year loan with repayment of $184,900 met from future year Block Grant allocations."

92 An internal Council document lists the seven bridges that were the subject of the successful application. They were the bridges that had priority numbers 2, 6, 7, 8, 9, 10 and 13 on Council's list. There was no explanation as to how they were selected.

93 Under the heading "Issues", the document notes that several issues arise in relation to the RTA's offer, including "[f]unding [the] Council's contribution". In relation to that issue, it details the preliminary estimated cost for replacement, together with the required Council contribution, for each of the "nominated" seven bridges and states that the Council could fund $482,500 of its $2,382,500 contribution directly from the Block Grant in the 2008/2009 financial year and borrow the balance from commercial banks. It relation to the "financial implications" of this course of action, it simply notes that "any loan funding can be repaid over the long term through the Block Grant received by [the] Council".

94 This material does not reveal that any of the funds available to be allocated for the Timber Bridge Partnership were "reasonably available" to the Council in relation to the Bluff Bridge. The funds that were made available were tied to the specific purpose of constructing or substantially repairing the seven bridges nominated by the State government. Further the conditions that were attached to those funds meant that there were less not more funds available for the Bluff Bridge. The Partnership required dollar for dollar matching from Council, so that to take up the offer the Council had to, inter alia, borrow funds. Further, the funds from this program were only available to be used to replace timber bridges and not take some lesser step of repairing them such as merely replacing planks, etc. Finally I note that the timing of the approval of funds under this project meant that even if funds had been made available for the replacement of the Bluff Bridge, it is very unlikely that construction could have commenced prior to 9 April 2008.

AusLink Scheme

95 Mr Barry QC tendered a media release dated 2 March 2006 from the then Minister for Local Government, Territories and Roads announcing the AusLink Scheme. The scheme made $126.8 million in funding assistance available to councils "to build regional land transport infrastructure that supports industry, tourism and economic development and improves access for regions to Australian and export markets". It was split into two notional funding allocations for larger and smaller projects, the former being projects requiring a contribution from the federal government of more than $1 million and the latter being projects requiring a contribution of less than $1 million. Larger projects would require a stakeholder matching contribution of at least 30%, but applications for smaller projects would also generally need to include funding from stakeholders. Nominations closed in May of the same year with "each nominated project" to be assessed on its competitive merits against standard criteria.

96 It is unclear whether the Council applied for and received any funds under the AusLink Scheme. Although Mr Jenkins gave evidence that the Council received $140,000 from the federal government for "two other bridges", he did not specify when the Council received this money or the particular federal grants scheme under which it did so. Even if the money was received under the AusLink Scheme and that money was therefore "reasonably available" to the Council in the 2006/2007 financial year, it was tied to specific projects and could not be applied to the repair or reconstruction of the Bluff Bridge. There is no evidentiary basis upon which to find that the Council could have obtained money under the AusLink Scheme for the Bluff Bridge simply by asking for it. This is particularly so given the Scheme's stipulation of a significant stakeholder contribution as a precondition to obtaining a grant.

The parties' respective cases

97 Mr Barry QC submitted that the Council owed his client a duty of care having the scope and content of that stated by the majority in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512. He submitted that there was a foreseeable and not insignificant "risk of harm" in the form of a cyclist falling off the bridge because of the condition of the bridge surface. He identified four categories of "precautions" which the Council had failed to implement which he said amounted to a breach of the duty of care that was owed (CLA, s 5B). Those four categories of precautions broadly corresponded with the particulars of negligence and involved (i) carrying out roadworks or repairs to the bridge to eliminate "dangerous gaps and/or defects" in the roadway surfaces; (ii) undertaking an adequate inspection; (iii) failing to warn Dr Collins by "the erection of a warning sign of the type that was subsequently erected"; and (iv) the installation of higher guardrails or fencing on the bridge. Mr Barry QC contended that if any one of those precautions had been undertaken then Dr Collins' accident would not have occurred and that otherwise the causation test specified in s 5D of the CLA would have been satisfied.

98 Mr Sheldon SC disputed each and every one of these steps. Further, he relied on a number of provisions of the CLA as providing either an answer to part or the whole of Dr Collins' claim or removing or undermining one of the components of her case. Thus Mr Sheldon SC contended that the "risk of harm" that materialised was an "obvious risk" (s 5F), that Dr Collins is taken to be aware of that risk (s 5G) and that it did not owe her a duty to warn of that risk (s 5H). He also submitted that Dr Collins was engaged in a "dangerous recreational activity" as defined in s 5K of the CLA and that the Council was not liable in negligence for the harm suffered as a result of the materialisation of that obvious risk (s 5L). He further submitted that the State was not liable to Dr Collins at all because of the operation of s 45 of the CLA and, in the alternative, did not owe Dr Collins a duty of care by reason of s 42 of the CLA. He also relied on s 43A of the CLA and otherwise contended that Dr Collins' own negligence contributed to the injuries she suffered. (The Council's defence also referred to s 43 of the CLA, but it was not addressed in submissions.)

Duty of care

99 It was common ground between the parties that the Council was the "Roads Authority" for the Orara Way, including the Bluff Bridge, pursuant to s 7(4) of the Roads Act 1993. Dr Collins submitted that, as such, the Council owed a duty of care to Dr Collins and that the scope of this duty was "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".

100 In its defence the Council disputed the existence of a duty of care and the scope contended for, relying on various provisions of the Civil Liability Act, namely ss 42, 43A and 5H. As noted below, by its terms s 42 can operate to affect any finding that a duty of care is owed. Section 43A does not. Instead s 43A provides that certain acts "[do] not give rise to civil liability". In the context of a claim in tort it assumes that the existence of a duty of care is otherwise established. I will address them before considering any issue of causation (Paul v Cooke [2013] NSWCA 311 at [53] to [56] per Leeming JA, Ward JA agreeing) and at the point of assessing breach. Section 5H provides that a "person ... does not owe a duty of care to ... warn of an obvious risk". So expressed, it cuts across the scope of the duty. Logically it should be addressed after considering whether any such duty exists and its prima facie scope and before considering breach (Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128 at [29] per Basten JA, Hoeben and Ward JJA agreeing).

101 In Brodie a majority of the High Court decided that under the common law of Australia highway authorities owed road users a duty of care and that the principles of negligence, rather than public nuisance, applied. In relation to the scope of that duty Gaudron, McHugh and Gummow JJ observed at [150] that:

"Authorities having statutory powers of the nature of those conferred by the [Local Government Act] upon the present [respondent local councils] to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."

102 In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [46], Gummow J stated that that analysis did not mean that a road authority owed a duty to ensure the safety of road users in all circumstances. Rather, as his Honour noted, the result of Brodie is that a road authority is obliged to exercise reasonable care so that the road is safe "for users exercising reasonable care for their own safety" (Dederer at [47], citing Brodie at [163]).

103 That formulation is consistent with the statutory scheme enacted by the Roads Act which, inter alia, sets out the various statutory powers and duties of roads authorities (see Leichhardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22). Section 5 of the Act entitles as of right members of the public "to pass along a public road". Section 145 vests all public roads within a local government area in fee simple in the appropriate roads authority. Section 146(1) provides that the dedication of land as a public road does not impose any liability on the owner of the road that the owner would not have if they were "a person having the care, control and management of the road", or constitute the owner of the road as an occupier of the land. Section 71 states that a roads authority may carry out various forms of road work and s 78 empowers roads authorities to construct bridges and tunnels.

104 Under this statutory scheme, it was the Council that had ownership of the Bluff Bridge and was entrusted with powers of care, control and management of the Bridge. Where the state of the Bridge posed a risk of harm to road users, it was the only entity empowered to remedy that risk (Refrigerated Roadways at [133] per Campbell JA, McColl JA and Sackville AJA agreeing).

105 As noted, the Council invoked s 42 of the CLA which provides:

"Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."

106 I have described the evidence concerning the "resources available to the authority", namely the Council, above. On its face s 42 is applicable to both determinations of whether there is a duty of care owed and whether it has been breached. Nevertheless, in the context of road authorities this provision has to date only been applied at the point of considering allegations of breach, and not at the point of considering the existence or even the scope of the duty (see Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd at [385] per Campbell JA; Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115 at [152] per Hoeben J, as his Honour then was; Turner v Australian Associated Motor Insurers Ltd [2006] NSWSC 1292).

107 Presumably this is so because the debate that might be otherwise engendered as to whether the principles in s 42 deny the existence of a duty of care owed by road authority to a user (or pedestrian) and, if not, affect the scope of the duty was undertaken and resolved in Brodie itself even though the CLA was not applicable to that case. In Brodie the majority judgments addressed and considered factors corresponding to the criteria specified in ss 42(a) to (c) when overturning Buckle v Bayswater Road Board (1936) 57 CLR 259 and Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 and reformulating the duty owed (Brodie at [102] to [106] and [161] per Gaudron, McHugh and Gummow JJ and at [229] per Kirby J). Consistent with s 42, those judgments confirm that those criteria remain relevant at the stage of assessing breach (id).

108 In Rickard at [152] Hoeben J noted that s 42 appears to "implicitly invok[e] the policy/operation distinction in that budgetary allocations have frequently been characterised by the courts as policy matters which were not justiciable". The decision in Sutherland Shire Council v Heyman (1989) 157 CLR 424 which concerns this distinction was specifically discussed in Brodie (at [102]). Thus s 42 may have the result that, with another type of statutory body whose functions are only of a policy nature, it will be held that they do not owe a particular person or class of person a duty of care. However, prima face Brodie still stands as authority concerning the existence and scope of the duty owed by a road authority, s 42 notwithstanding, although in this case the duty stated in [101] might be qualified by s 5H. I address that question next.

Section 5H and the relevant "risk of harm"

109 Sections 5F, 5G and 5H of the CLA provide:

"5F Meaning of "obvious risk"

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."

110 The term "risk" in this section is not defined. To an extent it is amplified by s 5G(2) however that amplification is only expressed to be relevant for the purposes of that section, whereas at present I am concerned with whether in this case the Council's duty of care to Dr Collins was relevantly qualified by the operation of s 5H(1).

111 The only common ground between the parties on this aspect of the case was that the "risk" referred to in ss 5F and 5G was the same as the risk referred to in s 5B which relevantly provides:

"General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

112 Hence at this point of considering the application of s 5G it is necessary to address the competing formulations of the "risk of harm" for the purposes of s 5B.

113 In his written submissions Mr Barry QC contended that the relevant "risk of harm" in this case was the risk of a cyclist falling off the bridge because of the condition of the bridge surface. Mr Sheldon SC submitted that the relevant risk was the risk of a cyclist having the wheel(s) of their bike stuck in a gap on the bridge and falling over. This latter formulation is prima facie deficient in that it omits any reference to harm or injury being suffered bearing in mind that the concept of risk of s 5B must entail some adverse consequence as it refers to "risk of harm". In Dederer at [59] Gummow J stated that the proper identification of risk involved "accurately identify[ing] the actual risk of injury faced by [the plaintiff]". Thus I will treat the Council's formulation as one involving the risk of the cyclist falling over "and thereby suffering injury" (Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 at [24] per Meagher JA).

114 These formulations of the relevant risk reflect the interplay of, inter alia, ss 5B and 5G and their potential consequences for the respective parties' cases. For Dr Collins a risk that is pitched as narrowly as hers runs into considerable difficulty in passing the threshold for being either foreseeable or "not insignificant" as required by ss 5B(1)(a) and (b). If it overcomes that hurdle it might have better prospects of being addressed by a reasonable precaution (ss 5B(1) and (2)). However her formulation of the relevant risk has enhanced prospects of avoiding the operation of ss 5F to 5H (and s 5L). It was Dr Collins' evidence that she did not envisage the possibility of falling off the bridge as she started crossing it and that aspect of her evidence was not challenged. The respective strengths and weaknesses of the Council's case on this point flowing from its definition of "risk of harm" mirrors that of Dr Collins.

115 The difficulty with Mr Barry QC's formulation of the relevant risk is that it invokes hindsight reasoning by using what is precisely known about how the accident occurred. As noted by Basten JA in Action Paintball at [34]:

"The first important consideration in assessing that question is the need to avoid reliance on hindsight. One aspect of hindsight reasoning is to focus on the specific circumstances which gave rise to harm. The questions of duty and breach must be assessed by reference to the perspective of the reasonable person in the shoes of the defendant, viewing the matter before the harm arose. As the Act requires, the burden of taking precautions must be assessed having regard to the supposed duty to avoid similar risks of harm to that which materialised."

116 Thus, the formulation of the risk of harm by reference to the precise harm suffered by the injured plaintiff in the precise manner alleged is an approach that has been rejected (Benic v State of New South Wales [2010] NSWSC 1039 at [83] per Garling J).

117 Viewed prospectively from the position of the Council the relevant "risk of harm" that materialised was the injury that might be suffered from a cyclist falling after their wheel becomes stuck in the holes or gaps in the planks on the bridge. I will return to address this when considering breach, but at this point I note that such falls might of course give rise to no injury other than bruising. Viewed prospectively it could have also given rise to puncture wounds from falling on exposed bolts. One realistic possibility is that adverted to by Dr Collins of a fall leading to a collision with an oncoming truck. A more remote possibility was that which eventuated.

118 I return to the definition of "obvious risk" in s 5F(1). That subsection asks whether the plaintiff's conduct involves a risk of harm which would have been obvious to a reasonable person in the plaintiff's position. The test is an objective one and requires a consideration of the objective circumstances facing the person whose conduct is being assessed (Laoulach v Ibrahim [2011] NSWCA 402 at [79] per Tobias AJA, Giles and Macfarlan JJA agreeing). Accordingly, "[w]hether or not a risk is 'obvious' may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff" (Jaber v Rockdale City Council [2008] NSWCA 98 at [35] per Tobias JA, with whom Campbell JA and Handley AJA agreed), although a risk may be "obvious" despite having a low probability of occurring (s 5F(3)).

119 I consider that the relevant risk of harm in this case was one that would have been obvious to a reasonable person in Dr Collins' position at a point no later than the last ten metres before her entry onto the bridge. Such a reasonable person would be an adult cyclist like her of at least moderate ability who had successfully negotiated their bicycle over a reasonable distance to that point. Such a person would also be aware of the potential risks associated with wooden bridges, but would not have been warned about this specific risk. They would have been involved in an organised ride but not engaged in a race. From a distance of no less than forty metres from the bridge they would have seen that they were approaching a wooden bridge, which would have raised some degree of caution. Just prior to the bridge the gaps and their potential to trap the wheels of a bicycle would have become apparent.

120 I am conscious that Ms Kaadal did not notice the gaps until she had entered the bridge. However I note three matters in that regard. First, Mr Barry QC submitted that it was not put to Ms Kaadal (or Dr Collins) that this risk was obvious. It did not need to be. In this context a conclusion of obviousness is a legal one, not one for commentary by a witness. Second, the fact that a particular witness did not appreciate a particular risk does not mean it was not obvious. Ms Kaadal had already received a warning as to the state of the bridge so that she was not in the position of the ordinary reasonable person referred to in s 5F whom I have assumed was not so warned. Third, even in Ms Kaadal's case, she was aware of the relevant risk by the time she started to cross the bridge. For the purposes of the application of s 5F to this accident an awareness at the start of the bridge is sufficient, given that Dr Collins' accident occurred approximately three quarters of the way across it and she was travelling slowly.

121 It follows that s 5H(1) is engaged so that the duty of care owed by the Council to Dr Collins does not extend to warning her of the risk that materialised. For the sake of completeness it also follows that in light of the finding at [21] Dr Collins is not able to rebut the presumption created by s 5G(1).

Section 5L - Dangerous recreational activity

122 Section 5L of the CLA provides:

"No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk."

123 The phrase "obvious risk" in s 5L has the same meaning as in s 5F. Section 5K defines a "recreational activity" as including "any pursuit or activity engaged in for enjoyment, relaxation or leisure" and a "dangerous recreational activity" as a recreational activity that involves a "significant risk of physical harm".

124 In Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [50] Ipp JA held that the "dangerousness (in terms of s 5L) of the recreational activity is to be determined by the activities engaged in by the plaintiff at the relevant time". Tobias JA agreed, adding that one must not only consider the "particular conduct actually engaged in by the [plaintiff] but also the circumstances which provide the context in which that conduct occurs" (at [92]).

125 Whether a risk of physical harm is "significant" requires an objective assessment of the relevant activity which takes account of the probability of that harm coming to pass and the seriousness of the harm which would or might then result (Streller v Albury City Council [2013] NSWCA 348 at [44] per Meagher JA, citing Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [28] to [31]; Fallas v Mourlas at [12] to [18] per Ipp JA, [91] per Tobias JA, [131], [136] per Basten JA; Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] per Mason P, McColl JA and Hunt AJA agreeing; and Jaber v Rockdale City Council at [46] to [47] per Tobias JA, Campbell JA and Handley AJA agreeing).

126 Mr Sheldon SC submitted that the "ordinary incidents of travel on a rural road present, potentially catastrophic, risks at all times" and that in a fall from a bike there is "every chance of [suffering] serious, and potentially catastrophic, injuries". He tendered various publications concerning the incidents of death and serious injuries amongst cyclists. Thus a 2004 publication by the Commonwealth government stated that "[o]n average, 35 cyclists are killed and around 2500 are seriously injured on the public road system each year". The material he referred to does not address the number of injuries occasioned while riding on rural roads or the frequency of the occurrence of such events in the context of bicycle riding, being an activity that would involve a prodigious number of journeys in Australia in each year. The publication does state that over 1 million bicycles were sold in Australia in 2002/2003 and that in 2003 cycling was the fourth most popular physical activity among people aged fifteen years and above.

127 Consistent with the approach stated in Fallas v Mourlas the relevant activity in which Dr Collins was taking part was an organised long distance charity bike ride. I have no doubt that was a "recreational activity" as defined. As this matter illustrates such organised bike events are on open roads and involve cycling through varying conditions. However in terms of safety they have relative advantages in terms of lines of communications about such conditions and support staff. There is no doubt that such an activity has a number of potentially catastrophic risks associated with it, including serious falls such as that encountered by Dr Collins or fatalities involving motor vehicles and the like. However, to the extent that the Court received material concerning the frequency of such occurrences experienced by cyclists generally, it suggests that the probability of such catastrophic risks materialising was very low. Certainly the opposite has not been established.

128 I am not satisfied that at the time of the fall Dr Collins was engaged in a dangerous recreational activity. Section 5L is not engaged.

Section 45 - Non-feasance protection for roads authorities

129 As stated, it was common ground that the Council was the "roads authority" for the Bluff Bridge. Section 45 provides:

"Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section:

carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

roads authority has the same meaning as in the Roads Act 1993." (emphasis in original)

130 Section 45 has been described variously as a "threshold" a plaintiff must establish or a "gateway" through which their claim must pass for a roads authority to be potentially exposed to civil liability "for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work ..." (North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240 at [50] per McColl JA and [130] per Bryson JA). A plaintiff bears the onus of proving the facts that take the roads authority outside the immunity that s 45 creates (Colavon Pty Ltd t/a Thormans Transport v Bellingen Shire Council [2008] NSWCA 355 at [98] per Campbell JA, Beazley JA and Handley AJA agreeing).

131 Two issues arise. The first is whether Dr Collins is attempting to establish a liability for a failure to carry out road work. The second is whether, if so, she has established the requisite level of knowledge on the part of the Council.

Carry out or consider carrying out road work

132 Section 45(3) provides that "road work" has the same meaning it has in the Roads Act. The dictionary of the Roads Act provides:

"road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre or rail infrastructure) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work. (emphasis added)

133 A "traffic control facility" is therefore not a "road work" within that definition. The Dictionary of the Roads Act defines it as follows:

"traffic control facility has the same meaning as it has in Part 6 of the Transport Administration Act 1988, and carry out traffic control work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility."

134 Section 45E of Part 6 of the Transport Administration Act 1988 provides:

"traffic control facility means:

(a) traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or

(b) any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under:

(i) this Act or the regulations, or

(ii) any other Act, regulation or by-law prescribed for the purposes of this subparagraph, or

(c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards, or

(d) any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or

(e) any other thing prescribed as a traffic control facility by the regulations."

135 The Bluff Bridge was clearly a "road work" within the meaning of the Roads Act. It was a work or structure constructed on or in the vicinity of a road, namely the Orara Way, for the purpose of facilitating the use of the road as a road.

136 I have described the four categories of precautions relied on by Dr Collins above. The first category of Dr Collins' particulars of negligence was said to comprise the Council's failure to periodically put a bitumen seal over the bridge, replace individual planks "when their level of deterioration made this necessary" or replace the timber bridge deck with a concrete one. All of these were activities "in connection with" the maintenance, repair and/or replacement of the Bridge. Thus, if implemented, they would have constituted "carrying out road work". Unless the requisite knowledge is established on the part of the Council it is not liable for failure to perform them.

137 The second category of particulars related to the inadequacy of the Council's inspection regime for the Bridge. Section 45(3) provides that carrying out road work includes carrying out any activity in connection with the inspection of a road work. The same observation applies. However, even if that is not correct, a mere failure to inspect on the part of the Council would not have caused the accident unless it was demonstrated that the Council would or should have taken some further step (see [197], being one encompassed by one of the other three categories of "precautions". Thus, this aspect of Dr Collins' case does not advance the matter as it only begs the question whether what is being asserted is a liability on the part of the Council for a failure to take those precautions and whether they involve carrying out "road work".

138 As noted, the third category comprised several instances of failure to warn Dr Collins which was ultimately refined to a failure to erect a sign of the kind that was erected after the accident. The risk warned of in that sign corresponds with the risk that I have found to be "obvious" in the case of Dr Collins. Such a sign would fall within the definition of "traffic control facility" within the meaning of s 45E of the Transport Administration Act and is not a "road work" for the purposes of the Roads Act and, by extension, s 45 of the CLA (see Colavon at [101] to [106]). However, unfortunately for Dr Collins, I have already concluded that the Council does not owe her a duty to warn.

139 The fourth category related to the installation of higher guardrails or fencing on the bridge. In Colavon the Court of Appeal held that the guideposts on the outside edge of the road in question were a "traffic control facility" on the basis that they were installed for reasons including their capacity to advise road users of the road width and "soft edges on the road" (at [106]). However that is not what is proposed on behalf of Dr Collins in this case. Mr Clark gave evidence that:

"... the technique of a guard rail is to deflect vehicles. The railing is set at a level that the wheels will largely hit it and be deflected back along the path that the vehicle is supposed to be travelling on. A guardrail is not a rail, its principal use is not a rail to stop a vehicle charging through it and going into the gap below it."

140 The suggested guardrails (or fencing) on either side of a bridge if implemented would not constitute a "traffic control facility". Their purpose was not to provide a warning in relation to road conditions or hazards. Nor was it to "promote" safe or orderly traffic movement on roads. Rather, they were intended to protect road users in the event of a specific danger arising, namely vehicles for one reason or another getting off course and heading towards the side of the bridge. Thus, the installation of higher guardrails or fencing amounts to carrying out road work within the meaning of s 45.

Did the Council have actual knowledge of the "particular risk"?

141 Two sub-issues arise in relation to this matter. The first is what is the "particular risk the materialisation of which resulted in the harm" of which the Council must have had knowledge?

142 The Council contended that the "particular" risk was something more refined than the "risk of harm" in s 5B. It contended that it was the specific "defect [ie plank] which actually caused the harm". Dr Collins submitted it was the same risk that she contended was the risk under s 5B, namely the risk of falling off the bridge due to the deteriorated condition of the bridge. This is odd in that the evidence did not even come close to establishing any knowledge on the part of the Council of a risk of that kind.

143 In Botany Bay City Council v Latham [2013] NSWCA 363 at [45] to [46] Adamson J (with whom Ward and Leeming JJA agreed) construed this aspect of s 45 as follows:

"Ground 3 raises the application of s 45 of the Act. The 'harm' referred to in the last words of s 45(1) is a reference to the 'particular harm' which has resulted from the materialisation of the 'particular risk', being the 'particular harm' to which the determination of causation in s 5D is addressed.

It follows that 'the particular risk' is s 45(1) is at the same level of generality. In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal." (emphasis added)

144 On its face this passage suggests that the "particular risk" that the Council must have had knowledge of was that posed by the particular gap that Dr Collins' bike became stuck in prior to her falling over the side of the bridge, and not the more general risk of her wheels becoming stuck in the various gaps in the bridge. However, the emphasis put in this extract on the way the respondent put her case in Latham is significant. In Latham the respondent "put her case" on the basis that the area of pavers in question was generally suitable but that there was one "rogue" paver. Hence the Council was required to have knowledge of the "particular risk" posed by that paver. In this case, Dr Collins' case was that the Bluff Bridge was riddled with dangers, one of which ensnared her, even though she cannot point to the particular hole she fell in. In these circumstances the "particular risk" corresponds with the risk of harm I have already identified in [117].

145 The second issue is, how is the requisite knowledge on the part of a Council demonstrated? The approach binding on me is that stated in Roman by Basten JA at [156] (with whom Bryson JA agreed), namely that actual knowledge must be found in the mind of an officer within the council having delegated or statutory authority to carry out the necessary repairs. At [157] his Honour stated:

"This conclusion is consistent with the language of s 45(1). The section confers an immunity on a roads authority where harm arises 'from a failure of the authority to carry out road work'. The exception only arises where "at the time of the alleged failure" the authority had actual knowledge of the particular risk. A purposive construction would require that the relevant knowledge exist in an officer responsible for exercising the power of the authority to mitigate the harm. The existence of the power is only coupled with a duty to act in circumstances where such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. The knowledge of others without such responsibility will not, relevantly for the purposes of the provision, constitute 'actual knowledge' of the roads authority itself; at best it could give rise to 'constructive' or imputed knowledge. The use of the term 'actual' precludes reliance on constructive or imputed knowledge. It follows that, even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information." (emphasis added)

146 In Roman McColl JA disagreed, considering that knowledge could be attributed to the Council in circumstances where someone with the obligation to report a particular hazard acquired knowledge of it (at [60] to [61]):

"In my view, for the purposes of s 45, the knowledge of those persons who, acting within the scope of their duties, learn of the particular risk under an obligation to report it as part of the roads authority's system of maintaining the roads under its jurisdiction, should be attributed to the roads authority. On the facts of this case, such people were sufficiently 'relevantly connected' with discharging the appellant's responsibility for carrying out road work to hold it prima facie liable in tort where it can be found, whether by direct proof, or inference, that they had actual knowledge of the particular risk which materialised in harm to the plaintiff. Attributing those persons' knowledge to the roads authority is consistent with the language of s 45, the context in which it appears and the policy discernible in its enactment.

This interpretation of s 45 should not be taken to exhaust the identity of persons whose knowledge will be attributed to a roads authority. The outcome may differ, depending upon the organisational structure of the relevant roads authority. It is sufficient, however, to dispose of this case."

147 In Blacktown City Council v Hocking [2008] NSWCA 144 at [223] Tobias JA endorsed the approach of McColl JA, however the remainder of the Court did not address this issue. Thus the approach of Basten JA in Roman represents the applicable test (Rickard v Allianz Australia Insurance Ltd at [146] per Hoeben J, as his Honour then was).

148 I have described the hierarchy of positions within the Council above at [43]ff. The person with the requisite authority to take mitigating action in respect of the Bluff Bridge was Mr Madden, although as his supervisor Mr Jenkins would or at least might suffice. I have described Mr Jenkins' evidence of his knowledge of the use of the Bluff Bridge by cyclists above. I accept that evidence as an accurate account of the state of his mind. As at April 2008 he was aware that it was at least proposed that a cycle club would conduct its annual road race and possibly its monthly races across the Bluff Bridge. However the closest the evidence came to establishing any knowledge of a risk on his part was his acceptance of the "general proposition that if you have got a plank bridge with gaps between the planks which are wider than the tyres on a bicycle it is ... no more than commonsense that bicycle tyres could get stuck in those gaps and cause injury". However there was no evidence that Mr Jenkins was aware as at April 2008 (or any time prior) that the Bluff Bridge had any such gaps.

149 As noted Mr Bailey denied that, when he undertook the inspection of the bridge in February 2008, he adverted to any risk of a bicycle having its wheels stuck in a gap or a hole on the Bluff Bridge. I have set out the critical parts of his cross examination in [64] above. Their effect appears to be that he saw gaps of sufficient size to trap the wheel of a bicycle but did not in fact advert to that possibility. Given what Mr Bailey conceded was his belief as to the level of usage of the Orara Way by cyclists (see [54]), it is debateable whether this knowledge would be sufficient to meet the test stated by McColl JA in Roman. However, clearly Mr Bailey did not have the level of authority to meet the applicable test as stated by Basten JA. Further, one matter that is clear from his evidence is that he did not communicate the existence of the fact that there were gaps in the bridge or that they posed a risk to cyclists or anyone else to any other Council officer, including Mr Madden or Mr Davis.

150 I have already expressed scepticism as to Mr Davis' evidence concerning his lack of observation of the use of the Orara Way by cyclists. However that does not advance Dr Collins' position very far. There is no evidence that Mr Davis was aware of any risk posed by the state of the bridge to cyclists.

151 Mr Barry QC also relied on the evidence of the Council's Risk Officer, Ms Crichton. Under cross examination she stated:

"Q. For example, a human being going over the side of a bridge, dropping a long way, could result in death?

A. That's correct.

Q. And because that could result in death, even if it might not occur very often, you would regard it as a high risk?

A. Yes.

...

... If, as the risk officer, you were aware that cyclists could get their wheels caught in the planks on a bridge and as a result of that, suffer a serious injury, if you were aware of that, as the risk officer of the council, you would expect something to be done about that, wouldn't you?

A. Yes.

Q. Because if someone went over a bridge and fell a long way, they could be killed or seriously injured?

A. That's right."

152 However, as with Mr Bailey, Ms Crichton lacked the requisite authority. Her responsibility was to carry out risk assessments once risks had already been identified. Nothing in her evidence reveals that she had either the form of authority referred to in the competing judgments in Roman or that, prior to the accident, she acquired knowledge of any risk posed to cyclists or anyone else by the condition of the bridge.

153 Ultimately Mr Barry QC sought to rely on such inferences as he could from the failure to call Mr Madden (see Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17; 247 CLR 345 at [217]ff per Heydon J). In this case the failure to call Mr Madden would only operate to enable the Court to more confidently draw inferences about his state of knowledge provided there was some evidence to support them (Leichhardt Council v Serratore [2005] NSWCA 406 at [15] per Giles JA, Hodgson and Ipp JJA agreeing). The highest point on that front is that Mr Bailey stated that Mr Madden drove down the Orara Way from time to time and as the Council's bridge engineer he was responsible for the maintenance of its bridges. There was no evidence as to how often he drove on the road and, more importantly, whether he ever inspected the Bluff Bridge when he did so or otherwise receive any report on its condition. There is simply no evidence to support any inference that Mr Madden had knowledge that there were gaps in the planks of the Bluff Bridge and that they posed a risk to cyclists or anyone else crossing the bridge.

154 Mr Barry QC also pointed to the guardrails on either side of the Bridge, which he contended showed that the Council "want[ed] to prevent something falling over the side of the bridge". However the mere presence of the guardrails is not capable of supporting an inference that the Council or one of its officers turned their mind to the possibility of someone falling off the bridge (assuming that to be the relevant formulation of the "particular risk" for the purposes of s 45). The height of the guardrails was between 65 and 73 centimetres along the length of the bridge. Mr Clark gave evidence that the railing was "set at a level that the wheels will largely hit it and be deflected back along the path that the vehicle is supposed to be travelling on". Both Mr Clark and Mr Johnston agreed that it was not intended, nor was it sufficient, to prevent cyclists from "over topping [or] over balancing like in this incident". The general risk that a vehicle might fall from the bridge was not the particular risk from which harm materialised in this case.

155 It follows that Dr Collins has not displaced the operation of s 45. This has the result that the Council does not have any liability to her for "harm arising from a failure of the [Council] to carry out road work" which in this case extends to the three remaining sets of precautions she contends for. It follows that her claim will have to be dismissed.

The precautions

156 Even though I have already concluded that Dr Collins' claim must fail, it is nevertheless necessary to address the allegations of breach on the assumption that Dr Collins has overcome the hurdles constituted by ss 5H and 45. I have set out s 5B in [111] above. I have also described the categories of precautions that were relied on by Dr Collins but it will be necessary to address each specific one in due course. Before I do so I note four matters.

157 First, I have already defined the "risk of harm" for the purposes of s 5B in [117]. I have also described the actual level of cyclist traffic on Orara Way (at [57]) as well as the knowledge of particular Council officers about that usage (at [57] to [58]). At this point of the analysis the critical question is what the Council ought to have known was the level of usage (Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [108]). Not only was the Council in fact aware that from time to time cyclists used the road, I consider that they ought to have known that that was a regular occurrence especially by groups of cyclists as described by Senior Constable Sams and Mr Flanagan. The obvious implication of the letter sent by the Coffs Harbour Cycling Club in March 2008 was that it was likely that its members (and the like) had already been using the Orara Way including the Bluff Bridge.

158 I have already noted that there had not been any previous incidents reported to the Council concerning the Bluff Bridge. However in many cases the types of injury that might follow from the risk of harm materialising might not be reported to the Council. In this case the Council only became aware of the incident because the accident was reported in a newspaper and Ms Crichton saw the article. In any event, Mr Bailey's concessions as noted in [64] confirm the clear risk to cyclists posed by the gaps in the planks. Accordingly, I consider that the risk of harm was both foreseeable and not insignificant (Shaw v Thomas [2010] NSWCA 169 at [44] per Macfarlan JA, with whom Beazley and Tobias JJA agreed; Benic v State of New South Wales at [93] to [101] per Garling J).

159 Second, I have already noted the Council's reliance on s 42 as negating any allegation of a breach of its duty. I have described the evidence concerning the limitations on the Council's resources above (at [71] to [96]). Mr Barry QC conceded that those limitations were such that his client could not demonstrate that the Council should have replaced the Bluff Bridge with a concrete bridge. Given that the likely cost of replacing the bridge was well in excess of $2 million and the financial restraints upon the Council, this concession was well founded.

160 Third, in addressing the various precautions not only is it necessary to address the criteria in s 5B(2)(a) to (d) but also those stated in s 5C which provide:

"5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

161 In Refrigerated Roadways Sackville AJA stated at [445]:

"[Section 5B(2) and section 5C(a)] required the primary Judge to undertake a careful analysis of the [road authority's] responsibilities to avoid other risks of harm to road users and to take account of the competing demands on the limited (if substantial) resources of the [road authority]."

162 One theme of the Council's submissions is that, in addressing the various proposed precautions, s 5C(a) requires that consideration be given to the burden of undertaking each of those precautions on not just the Bluff Bridge but the other 146 timber bridges for which it was responsible. However, the only material concerning those other bridges was a priority list which ranked Bluff Bridge the eleventh most in need of replacement. By February 2008 the Council was offered and had accepted partial funding to replace six of the bridges ranked ahead of it. The strong resistance of the Council to any inquiry into the merits of the ranking and the fact that the state of those other bridges was not the subject of any evidence is capable of cutting both ways. The ranking of eleventh place suggests that a correction of some of the bridge's defects would not necessarily require similar action in respect of at least 135 other Council managed bridges. Further, if there is some apparently distinctive feature of the Bluff Bridge that increases the need to take a particular precaution then I would not necessarily infer that it is required on the other wooden bridges for which the Council is responsible.

163 Fourth, although I have discussed the condition of the bridge in some detail, it is worth noting the answer given by each of Messrs Clark and Johnson to the question "[w]as the condition of the [Bluff Bridge] reasonably safe for the passage of bicycles?" Mr Clark responded "[y]es with care ...". Mr Johnson agreed but noted that "appropriate signposting was required to ensure that riders were aware that care needed to be taken to safely cross the bridge". Further, both were asked whether, aside from applying a bitumen cover, there were other "cost effective options" available to the Council to remove the hazard caused by the gaps between the wooden planks. Mr Clark replied "[n]one". Mr Johnson answered "signposting" although he added there were other options whose cost effectiveness "depend[ed] on what benefits or risks are perceived". He explained that those other options were the use of transverse planks and or some other form of base layer. Neither of these suggestions was taken up on behalf of Dr Collins.

Resealing bridge surface with bitumen

164 Mr Barry QC submitted that one way of addressing the risk of harm, however defined, was replacing the bitumen seal over the surface of the bridge deck. He contended that this precaution was a cost-effective measure. Messrs Clark and Johnson estimated that it would cost $4,000 to reseal the bridge based on an approximate square metre rate and the known surface area of the bridge (250m2).

165 The Council had two responses to this contention. First, it asserted that resurfacing would only address the risk for a short time after the completion of the work, a factor which it said "militate[d] against the reasonableness of resurfacing it frequently". Second, it contended that the burden of adopting the precaution of resurfacing the bridge was out of all proportion to the probability of the harm occurring if that precaution was not adopted in light of s 5C(a). It said that provision required taking into account the cost of resurfacing all 146 bridges in the Council's area, which was at least $550,000 but probably much more given the high frequency at which resurfacing would need to occur, and that the Council did not have the means to meet that burden (s 42).

166 In their joint expert report, Mr Clark and Mr Johnston agreed that gaps ordinarily develop in the deck of the bridge and applying a "thin bituminous layer" to the bridge would only eliminate the presence of gaps in the short term. When asked how soon after resurfacing the bitumen gaps would develop between the longitudinal planks, they stated:

"Agreed that this depends on prevailing weather and traffic conditions. It is agreed that for a thin layer of bituminous binder this will take only a short time ..."

167 When asked what was meant by "short", Mr Johnston stated that "we can't define short but it's certainly not you know years". He stated that he agreed with Mr Clark that when the "gaps opened [the] bituminous layer effectively fell into the gaps". Mr Clark stated that he did not regard resurfacing as a cost-effective measure because "it would very rapidly break away along the line of the joints". Mr Barry QC accepted the possibility that that the bitumen seal on the bridge deck might have to be replaced at least every two years. I consider that it would require replacement far more frequently than that, most likely after the expiry of much less than a year given that the bridge was prone to flooding and was passed over by heavy logging trucks. Further, given that use by logging trucks, I would expect the deterioration to commence almost immediately. Hence the probability that harm would be avoided if the precaution was taken is not high (s 5B(2)(a)).

168 I have adverted to the issue of the Council's responsibility for other bridges above. There was no evidence before me as to the state of deterioration of, or the existence or size of gaps in, the bridges (other than the Bluff Bridge) for which the Council had responsibility. Although the Council's Priority Lists concerning "bridge maintenance and replacement" of its local roads and regional roads respectively were tendered, they did not identify the particular defects in those roads said to warrant repairs (eg whether the problem was with the planks or the structure). Further, there was no evidence as to whether the Council in fact undertook any program of reapplying bitumen to wooden bridges as part of its regular maintenance program.

169 However, the experts agreed that gaps develop in the decks of timber bridges in the ordinary course and that this process commences "virtually immediately" although the rate at which it progresses depends on the quality of the timber used, weather conditions, the volume and weight of the traffic using the bridge, and the rigidity of the underlying structure. Accordingly, given the large number of timber bridges on the road network under the control of the Council and the relatively high frequency at which a bitumen seal would need to be replaced, a resurfacing regime would appear to entail a very significant ongoing cost for the Council.

170 In light of the limited utility in terms of avoiding harm if the precaution was taken and the likely impact on the Council of requiring a system for the regular re-application of bitumen to this bridge and other wooden bridges, I am not satisfied that the Council failed to take reasonable care in not resurfacing the bridge prior to April 2008.

Replacing the bridge deck

171 As noted, in November or December 2008 the Council undertook a reconstruction of the bridge deck following an inspection of the bridge by the Council's engineer in September 2008. This reconstruction involved replacing some of the longitudinal planks on the bridge at a cost of approximately $70,000-$80,000. Mr Barry QC contended that this was a precaution that a reasonable authority in the Council's position would have taken before the accident in April 2008.

172 The replacement of the bridge deck involved a substantial expense in the context of the Council's annual budget for the inspection and maintenance of bridges, which was $315,062 in 2007/08. However, without significant ongoing maintenance it would not have eliminated the risk of harm in the medium to long term. Mr Johnston gave evidence at trial that, even if the deck was completely re-planked and then sealed with bitumen, some timbers would need to be replaced at least after four years but probably before to prevent gaps of twenty millimetres or more from developing. I accept this evidence. It is confirmed by the observations made by him and Mr Clark of gaps of around ten millimetres in their respective inspections of the bridge in 2012.

173 The level of expenditure involved in the re-decking of the bridge in November 2008 was substantial. Even if the competing responsibilities were restricted to those bridges above the Bluff Bridge on the priority list that I have referred to and excluded those that there were to be replaced under the Bridge Partnership Progam, it is difficult to accept that the Council could be required to spend this amount. As stated, the Council's budget was in deficit for the year ended 30 June 2008 and each of the years prior. To accommodate expenditure of $80,000 or more if the position of the other bridges is considered, the Council would have had to either defer other work of a similar value on its roads network or borrow funds and enlarge its deficit. There is no basis for finding it was obliged to do the former. In relation to the latter course, to establish negligence it would have to be concluded that if the Council was in a position to borrow further funds and was required to apply those funds in the area of "transport and telecommunications" as opposed to any other of its service areas. However, this inquiry is directed to the Council's "general allocation of resources", which is not open to challenge (s 42).

174 Once the analysis leads to this point it is clear that s 5B(1)(c) is not satisfied in relation to this form of precaution when read with s 5B(2) and s 5C. The burden of the precaution is considerable, especially in light of the competing responsibilities of the Council. In circumstances where, even if the precaution was adopted the relevant risk, ie gaps, would re-emerge, I am not satisfied that this was a precaution a reasonable road authority in the Council's position would have taken.

Replacing individual planks

175 Mr Barry QC submitted that the Council would have eliminated the risk of harm by replacing individual planks when "their level of deterioration made this necessary". Presumably this meant that the Council should have replaced those planks which had deteriorated to such an extent that gaps large enough to trap bike wheels had emerged. No submission was made on the cost of this precaution except to say that it was "hardly likely to be an expensive task, bearing in mind we know that [the Council had] a bridge engineer, [a] bridge foreman and [a] bridge crew".

176 Neither of Mr Johnson or Mr Clark nominated this as an appropriate measure to adopt. Its feasibility was not taken up with any of the Council's witnesses either. Mr Barry QC suggested that Mr Clark referred to it but instead he referred to planks being placed tightly together by crews when from time to time they might repair a bridge and not to a roving repair gang moving from bridge to bridge which could be a significant undertaking. Messrs Johnson and Clark's reference to the propensity of timbers to deteriorate "virtually immediately" and fairly rapidly upon new planks being installed applies equally at this point. Mr Clark stated that if planks were placed tightly together then the process of gaps opening up would begin immediately. He and Mr Johnson agreed that the speed of that process would depend on the quality of the timber, the weather conditions, the volume and weight of the traffic on the bridge and the "rigidity" of the underlying structure of the bridge. Certainly what is known about the weather conditions and the volume and weight of the traffic on Bluff Bridge suggests that gaps would form very quickly.

177 In the absence of this matter being raised with the Council officers I am not satisfied that this process of replacing timbers by some form of roving work gang would be any less resource intensive for Council than the wholesale replacement of the bridge surface. For the reasons set out in relation to that precaution I do not accept that s 5B(1)(c) is satisfied in relation to this precaution.

Higher guardrails or a railing

178 Dr Collins pleaded that the Council was negligent in "failing to install higher guard rails or fencing to the roadway to minimise the risk of injury in the circumstances". As I will explain this contention was extended to some form of relatively flimsy railing fixed above the existing guard rail.

179 In their joint report, Messrs Clark and Johnston agreed that the height of the guardrail, which was between 65 and 73 centimetres along the length of the bridge, was not sufficient to prevent cyclists from "over topping [or] over balancing like in this incident". However, they agreed that simply raising the guardrail would be unsafe as it could become vulnerable to underrun. As Mr Clark explained:

"[T]he technique of a guard rail is to deflect vehicles. The railing is set at a level that the wheels will largely hit it and be deflected back along the path that the vehicle is supposed to be travelling on. A guardrail is not a rail, its principal use is not a rail to stop a vehicle charging through it and going into the gap below it. ... Now if you raise the rail it removes that degree of protectionism to vehicles because it's at the wrong height to function so, as Mr Johnston says, there would be a need to place a secondary rail below it to preserve the original function of the rails."

180 Messrs Clark and Johnston also expressed concern that the use of higher guardrails could lead to flood loading of the bridge structure and debris entrapment. The Bluff Bridge flooded between three and four times a year. Mr Johnston explained higher guardrails might result in floods placing a greater strain on the structure of the bridge or at least at the attachment point. He stated:

"[W]hen your water levels reach [the height of the guardrail on the side of the bridge], bearing in mind most of the debris is on top, it does start to dam up against it. Obviously, if you raise it again, then you are increasing that duration over which you do get that loading and the depth at which that will load, but you also increase the lever arm, so when you put it up higher you also have a longer moment, because your actual force is transmitted over a longer distance. So ... you do have some additional loading on the bottom structure of the bridge because of the additional height creating a moment arm."

181 Furthermore, both Mr Clark and Mr Johnston agreed that placing a second rail below the pre-existing one would effectively double the surface area of the rail and increase the strain on the attachment point and bridge foundations. However, they did not accept the proposition that a new double level guardrail was necessarily more likely than the pre-existing single railing to be swept away in a flood because of added pressure on the attachment point.

182 In any event, the cost of installing a higher guardrail was significant. In their joint report, Messrs Clark and Johnston estimated that removing and replacing the current guardrail with a higher one would cost between $20,000 and $25,000. This figure did not allow for any required modifications to the bridge structure itself, any additional fill-in, or the cost of future repairs and/or replacement following future flood events. The proposal to simply add a higher guardrail would probably not have been materially cheaper in light of the need to remove and replace the required posts and fittings, and possibly re-engineer the attachment point.

183 Mr Barry QC suggested the Council could have erected a timber railing or used metal tubing at little expense and that either of these measures would have effectively eliminated the risk of falling off the bridge with no adverse effect upon the bridge and at relatively minimal cost. However, Mr Clark denied that was the case. He stated that anything that was erected at a higher level than the existing guardrail would increase the entrapment of debris during floods and therefore place a greater strain on the bridge structure. He further stated that even if the material used was not very strong, as would be the case with a timber railing or metal tubing, it would still entrap flood borne debris and a flood would not necessarily immediately dispose of it. I accept his evidence.

184 Even if a new railing did not need to be made of very strong material to stop cyclists falling off the bridge, it could not be flimsy or otherwise it would be ineffective. I accept that it would not necessarily break away immediately upon the bridge flooding. The erection of a railing made of timber or tubular metal would, for reasons I have already mentioned, need to be in addition to the current guardrail structure. It would therefore catch flood borne debris and place a load on the bridge structure, which was old, over and above what the existing railing did, although I accept generally only for a short time. It was a more vulnerable structure than a guardrail and the experts agreed that guardrails were often swept away by floods. The inevitable result, however, is that it would have to be replaced by the Council several times during the year, ie every time or almost every time there was a flood. Although no evidence was put before me as to how much the installation of a timber or metal tube railing would cost, this would have represented a not insignificant burden for the Council.

185 Most significantly, the proposal to erect a railing at higher level only addresses one form of harm entailed by the risk of harm that I have identified, namely the potential for a cyclist to fall off the bridge. It would not address other forms of harm that could result from having a wheel fall into a gap. These included falling on the surface of the bridge and what I consider to be the most significant and serious risk, namely falling into the path of oncoming traffic. All these matters must be viewed prospectively. This proposed precaution only partially addresses the relevant risk of harm and only addresses a remote outcome of that risk materialising (s 5B(2)(a)). Given that, the possible adverse consequences of a new double railing on the bridge structure, the likely need to replace any rail structure following future flood events and the Council's limited resources, I do not accept that s 5B(1)(c) is satisfied in relation to this precaution.

Erecting a warning sign

186 As noted Mr Barry QC ultimately contended that the Council was required to, but did not, undertake "the erection of a warning sign of the type that was subsequently erected". This sign was erected 159 metres from the southern end of the bridge and stated "Cyclists Dismount, Beware of Gaps in Bridge Deck".

187 I have already noted certain answers from Mr Johnston in the joint report in relation to the location of a sign. In their joint report both Mr Johnston and Mr Clark stated that the Council should have had a sign in place in the same terms as that which was installed after the accident. In oral evidence they stated that this opinion was not dependent upon the level of cyclist traffic along Orara Way. However they also qualified their opinion about the form of the sign. Mr Johnson was asked whether the sign should have advised riders to dismount. He stated that the sign should at least give the "the rider the knowledge to at least be aware that they may need to dismount" adding that many riders would not "but at least they've had that knowledge they are aware there's gaps and they can make that decision". Mr Clark appeared to agree in that he thought an experienced rider could negotiate the bridge by riding "along the middle of [a] plank".

188 Messrs Clark and Johnston identified the reason for the need for a sign as being that all timber bridges should have warning signs because gaps will inevitably develop in between the planks, there is often deterioration between inspection visits conducted by the authorities responsible for maintaining them, and many people "aren't particularly aware of them or the fact that they may have different surfaces than concrete bridges" as they are becoming less and less popular. I accept that is the case.

189 I have already concluded that the risk of there being gaps in the bridge which could cause wheels to become stuck was an "obvious risk" to a reasonable person in the position of Dr Collins. However this does not mean that a sign was not warranted. One category of rider to whom the risk might not have been obvious were riders from cycling clubs conducting a race who might be travelling across the bridge at a faster speed than Dr Collins was. In such cases the existence of potentially dangerous gaps might not be apparent or obvious. Further, if the sign did advise riders to dismount, it may convey something about the extent of the risk that is not apparent from simply observing the bridge on approach.

190 There are obvious limits to the utility of signs as a means of avoiding the relevant risk of harm (s 5B(2)(a); AC Billings & Sons v Riden [1958] AC 240 at 252). Riders may not see them because of the speed at which they are travelling. A sign may not be able to convey the extent of the risk, a rider may elect to traverse the bridge and only realise that the frequency and/or size of gaps is significant or even dangerous when they first see the sign and consequently make a deliberate observation of the bridge as they approach. Nevertheless it is a precaution that was of some utility for the reasons stated by Messrs Johnson and Clark. Leaving aside the circumstances of riders travelling at speed to whom I have just referred, a significant proportion of the riders along that road are likely to be in a category of careful riders who are likely to pay attention to a sign. This includes riders in organised events such as Dr Collins and adult tourists. The Bluff Bridge is so far from a population centre that children are unlikely to be crossing it.

191 The Council identified three factors said to militate against a finding that reasonable care required the erection of such a sign. First, it said that a warning to dismount would simply replace one risk with other risks the consequences of which were no less serious, citing Kempsey Shire Council v Baguley [2010] NSWCA 284. Its written submissions stated:

"If the plaintiff dismounted then it is likely she would move more slowly across the bridge than if she were on her bike and so would be on the bridge for longer. She would take up more of the road space. She would therefore be at greater risk of being struck by another vehicle."

192 This proposition was not taken up with either Mr Johnson or Mr Clark. In any event I do not accept it. One reasonable response to the current state of the bridge is to undertake the manoeuvre that Dr Collins did, namely attempting to weave across the bridge which creates a far greater risk of being struck by a car than walking across it.

193 Second, the Council submitted that if a warning sign was required for the Bluff Bridge then such a sign would need to be erected on all 146 of the bridges under the Council's control to guard against a risk. Thus they seek to invoke s 5C(a).

194 I do not accept this for the reasons noted in [162] above. While it is true that Messrs Johnson and Clark identified characteristics of this wooden bridge shared by other wooden bridges that would warrant a sign being installed, the Bluff Bridge had some features that warranted a sign being erected that I cannot infer it shared with other wooden bridges, namely the regular passage of logging trucks, its location over a deep ravine and the low guardrails. These matters warrant this bridge being given some priority and the Council's resistance of scrutiny of its other bridges means that it has not persuaded me to the contrary. This is reinforced by the Bluff Bridge being ranked eleventh in terms of priority for the Timber Bridge Partnership. There is no reason to place its priority for receiving a sign as any lower than eleventh. The cost of erecting eleven signs is very low and does not impose any financial burden upon the Council. This burden is further reduced if one removes six of the seven bridges above the Bluff Bridge in the priority list as they were to be replaced entirely.

195 Third, the Council contended that in deciding whether to erect a warning sign a reasonable road authority in the Council's position would be entitled to take into account Mr Johnston's view that a sign would be ignored by many riders. That was not Mr Johnson's evidence. I have set out the relevant evidence of Mr Johnson at [187] above.

196 Although Messrs Johnson and Clark agreed the bridge was reasonably safe for the passage of bicycles, it was overall in a poor state. It represented a danger to cyclists. The Council ought to have been aware that it was used by cyclists and was such a danger. I have rejected the contention that the Council should have undertaken various steps to address the danger posed by the bridge to cyclists principally because I am satisfied that it could not afford to bear the burden imposed by those steps, bearing in mind that this would impose a responsibility on it to take steps to avoid similar risks of harm on other bridges (s 5C(a)). The precaution of at least erecting a sign does not suffer from that difficulty although it was not likely to be as effective in the short term than repairs to the bridge. In my view it was clearly a reasonable precaution for the Council to take. Further, and notwithstanding the evidence of Messrs Johnson and Clark noted in [187] I consider that such a sign should have advised cyclists to dismount. Otherwise there would have been a greater risk of cyclists not appreciating the extent of the risk and attempting to cross the bridge. As stated, one likely response to merely being appraised of the existence of the gaps but not being warned to dismount is that a cyclist will adopt the weaving manoeuvre that Dr Collins adopted. Overall that manoeuvre increases the risk to cyclists.

Negligent inspection

197 The remaining precaution identified by Mr Barry QC concerned the need to undertake an adequate inspection of the Bluff Bridge. In substance he contended that Mr Bailey's inspection in February 2008 was conducted negligently in that he failed to appreciate and report upon the risks posed by the gaps and holes in the planks to cyclists crossing the bridge. I have already noted the concession by Mr Bailey as to his state of knowledge of the use of the Orara Way by cyclists and the inadequacies of the bridge for use by cyclists in [54] and [64] above. Clearly Mr Bailey's inspection was less than adequate. What is the point of conducting inspections on a road if an obvious defect that can cause danger to a known category of lawful users of the road is not identified and reported upon? However, as a form of "precaution" an inspection is not particularly helpful in avoiding the risk of harm materialising unless it is somehow acted upon. As a matter of causation it will certainly not advance the matter unless it is demonstrated that had the defect been reported it would have been acted upon, or that the exercise of reasonable care would have required that it be acted upon (see Roads and Traffic Authority v McGregor [2005] NSWCA 388 at [68] to [69] per Campbell AJA, McColl and Bell JJA agreeing).

198 In relation to the former, Mr Barry QC conceded that even if a proper inspection had been conducted and reported upon "it would not have made any difference" because the likely receiver of the report, Mr Davis, disclaimed any responsibility for bridges. Leaving that management issue aside, the evidence suggests that, at most, if Mr Bailey had reported that the bridge was not suitable for cyclists it would only have led to a sign being erected like the one erected after the accident. In relation to the latter, the above analysis thus leads to the same result. While I accept that the inspection was negligently conducted, it does not advance Dr Collins' case beyond the finding that it was negligent for the Council not to have erected a sign.

Section 43A

199 As noted the Council also relied on s 43A of the CLA which provides:

"Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."

200 When this provision has been found to be engaged it has often been applied by adopting a "two step" approach of considering whether breach has been established and, if so, considering whether the additional test in s 43A(3) is established (Refrigerated Roadways at [360]; Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115 and on appeal at Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328 at [61]).

201 Mr Barry QC referred to the comments of the High Court in Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [13] to [27]. In Turano the High Court noted at [25] an observation of Professor Aronson that the "idea [behind s 43A] appears to have been to distinguish statutory authority per se ... from statutes permitting coercive acts or non-consensual rights-depriving acts" such as the power to detain. On its face this would not extend to the actions of roads authorities in exercising powers under the Roads Act referred to next. However the High Court did not decide the issue and instead referred to the "uncertain reach" of s 43A (at [26]).

202 Prior to the High Court's judgment in Turano, in Rickard v Allianz Australia Insurance Ltd Hoeben J (as his Honour then was) found that, in the context of a road authority, the power to carry out "traffic control work" conferred by s 87 of the Roads Act, which included the power to erect a sign, was a special statutory power (at [112]). This was in circumstances where s 52 of the Road Transport (Safety and Traffic Management) Act 1999 precluded a person from installing or interfering with a "prescribed traffic control device" which also extended to a sign. (Hence the power to erect a sign is said to be a power that is "of a kind that persons generally are not authorised to exercise without specific statutory authority".) To similar effect s 71 of the Roads Act confers power on a roads authority to "carry out road work" on a relevant public road in certain circumstances and s 138 operates to preclude persons generally from carrying out various works on a public road.

203 This aspect of Rickard was not challenged on appeal even though the appeal was heard shortly after the High Court published its reasons in Turano (Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales at [38]). Most recently in Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 at [51] the Court of Appeal noted the comments in Turano suggesting that the scope of s 43A is unclear. The Court declined to construe the section as it was not necessary for the decision in that case.

204 Nevertheless at first instance I am left with the judgment at the same level of the judicial hierarchy, namely that of Hoeben J in Rickard. I should follow that decision unless I am persuaded that it is clearly wrong which I am not.

205 The test posed by s 43A(3) appears to have been modelled on the concept of unreasonableness which is often traced to the passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. In Allianz at [63] Giles JA, with whom McColl JA and Sackville AJA agreed, described this as requiring an objective assessment of the road authority's conduct. His Honour counselled against using the description "irrational" as that would tend to require focus on the actual reasons given by the authority even though in a particular case "the response may objectively be one at which an authority acting reasonably could properly arrive, although arrived at irrationally" (at [89]). It is not necessary to address this further as this case involves a complete omission to act on the part of the Council in circumstances where it did not even advert to exercising any power. Thus there are no subjective reasons available concerning the Council's failure to act.

206 The findings that I have made above necessarily mean that the test posed by s 43A(3) is not satisfied in relation to all of the suggested precautions save for a sign (and an inspection). However in relation to a sign I am satisfied that the test in s 43A(3) is made out. Objectively considered there was no rational reason to confine Mr Bailey's inspection in February 2008 to the risk posed by motor vehicles. Why exclude motorcycles and bicycles given that they are common on roads? Even a cursory inspection of the bridge as at that time would have revealed that the bridge was a potential danger for cyclists. Further, as at March 2008 the Bluff Bridge was ranked eleventh most in need of replacement and six of the bridges ahead were scheduled (and funded) for a complete rebuild. The local cycle club had nominated the area of road including the Bluff Bridge as its preferred area for at least its annual race and possibly monthly outings. While a sign was hardly a perfect response it was cheap and easy to undertake and was likely to ameliorate the risk faced by at least a significant group of the likely cyclists traversing the bridge. If the Council did not propose to take some step to repair or rebuild the bridge then it was unreasonable in the sense used in s 43A(3) for it not to have at least erected a sign as it did subsequently. (I make the same finding in relation to the inspection conducted by Mr Bailey for the reasons noted at [197]. However, as noted, this conclusion does not advance the matter beyond the conclusion that the Council should have placed a sign at the southern entrance to the Bluff Bridge.)

207 Thus Dr Collins has succeeded in establishing the Council was negligent in satisfying s 5B(1)(c) and overcoming s 43A in failing to placing a sign of the kind that they subsequently erected on the southern approach to the Bluff Bridge. However for the other reasons I have stated her case fails.

Causation

208 In light of the findings that I have already made, it is not sensible to address the test for causation in s 5D on a hypothetical basis that assumes Dr Collins has overcome all the various hurdles that I have found stand in the way of her succeeding. Nevertheless, the finding I have made at [21] appears to represent a significant obstacle to Dr Collins satisfying s 5D.

Contributory negligence

209 For the sake of completeness I will address the allegation of contributory negligence. The Council contended that Dr Collins' own negligence contributed to her accident in that she failed to dismount either before or while she was on the bridge, she slowed down at the crucial time and it is submitted that she must have not been keeping a proper look out at the point she fell over. I reject all of these contentions. I have already found that prior to entering the bridge she observed the gaps in the planks and decided to cross the bridge at a diagonal, bearing in mind the need to avoid the middle of the road because of the potential threat posed by logging trucks. To suggest that Dr Collins should have taken some further steps for her own safety beyond that is to truly engage in hindsight analysis.

Orders

210 It follows that the proceedings will need to be dismissed. I will enter judgment for the Council. I will then hear the parties as to costs.

211 Accordingly the Court orders:

(1) Judgment for defendant.

(2) Proceedings be dismissed.

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Decision last updated: 15 November 2013