Monday, 25 November 2013

Court case reveals Clarence Valley Council's poor management practices

In Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 judgment went in Council’s favour.

However, the case exposed a numbers of flaws in its policies and processes that councillors need to address.

Excerpts from the 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.

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.

197 ....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?... 

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.

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.

No comments: