By Rebecca Roberts, Partner and Bronte Tanna, Law Graduate

Facts

The Plaintiff was riding her electric scooter in broad daylight along a busy, multi-use shared pathway at approximately 20 – 25 km per hour.

Upon hearing a bicycle bell, the plaintiff looked behind her and moved to the far left edge of the pathway. It was determined she either left the path entirely or occupied the extreme left of the path while leaning further to her left.

In doing so, the plaintiff struck one of the timber fence posts (“post 6”), causing her to fall to the ground.

The plaintiff relied on the fact that post 6 was closer than the minimum lateral clearance of 0.3m in the Austroads Guide to Road Design Part 6A … Paths for Walking and Cycling, “the Guide”.

The Path was 4.02m wide, which was the maximum width for a recreational path in the Guide. Where post 6 was on the path was notably a straight stretch and the fence posts, including post 6, were clearly visible. Post 6 was 0.26 m from the fence.

Principles of Law

The City was found to owe a duty of care to the Plaintiff, both at common law and under the Occupier’s Liability Act 1985 (WA).

The risk of harm in this case was the risk of a wheeled vehicle, making contact with the fence or parts of it, when travelling on the pathway and causing personal injury.

Such risk was considered foreseeable and not insignificant.

Troy DCJ applied the principles in Smith v Wyatt, where the Court held that failure to follow a standard does not, of itself, establish negligence, though, it may provide a guide for the standard of reasonable care.

The Plaintiff contended that the fence should have been constructed in compliance with the Guide so that all of the posts were at least 0.3m from the pathway. Alternatively, the Plaintiff argued the fact that the fence posts were non-compliant with the Guide should have been identified during an inspection and rectified by the City.

Troy DCJ assessed reasonableness with reference to:

1. The overly burdensome nature on the City of the proposed steps in the context of a like responsibility for all such posts over such an extensive network of pathways.
2. The lack of previous accidents, though not determinative, this was relevant as it supported a contention that the position of the posts did not constitute a danger which required some response from the City.
3. The risk of striking a fence post if one wandered off the path or occupied a position on the extreme edge was deemed an obvious risk and therefore:
   • The City had no duty to warn of the risk;
   • The Plaintiff was or should have been aware of the obvious risk; and
   • The harm suffered by the Plaintiff was caused by the occurrence of something that could not have been avoided by the exercise of reasonable skill and care by the City.
4. The magnitude of the risk and the degree of the probability of its occurrence. These were considered as to not require a reasonable person in the City’s position to take any action to reduce or eliminate that risk.

Decision

Troy DCJ concluded that this was case where reasonableness required no response to a foreseeable risk that was not insignificant. The Plaintiff’s claim was dismissed