By Casey Thomas, Associate
On 6 July 2023 the NSW Court of Appeal handed down its judgment in Ballina Shire Council v Diane Moore  NSWCA 155. The appeal brought by Ballina Shire Council (Council/the Appellant) followed a judgment for Diane Moore (the Respondent) in the District Court of NSW. The primary proceedings were heard before the District Court in Lismore in December 2022 (the primary judgment is available here).
The Respondent’s claim related to an incident on 27 April 2020 which involved a footpath shared by pedestrians and cyclists. There was a bollard where previously two had stood together. Evidence was given as to the purpose of those bollards, which was accepted to include the slowing of cyclists. Sometime before December 2016 one of those bollards was removed, which Council became aware of, and only one remained at the time of the incident. It was painted with diagonal red and yellow stripes.
In the District Court the Respondent gave evidence that while riding an electric bicycle, when she attempted to overtake two pedestrians the bollard was revealed to her. In avoiding the pedestrians and the bollard, she veered from the footpath and only when steering back onto it did she lose control of the bicycle and fall from it.
The primary judge made no reduction for contributory negligence and found the bollard did not pose an obvious risk to a reasonable person in the position of the Respondent. It was accepted the Respondent did not see the bollard until she was within 1 to 2 metres from it and her actions upon observing it were reasonable.
The primary issue before the Court of Appeal was whether Council breached its duty of care to the Respondent in failing to remove the bollard. The Court of Appeal allowed the appeal and held that while two bollards may have a greater deterrent effect on cyclists, it did not follow that one would have no effect on cyclists, and it cannot be viewed as a hazard without also posing an obstacle which may deter cyclists from travelling at high speeds.
In the primary proceedings Council relied on evidence from its Manager of Engineering Works (Council’s Witness). Council’s Witness was cross-examined about an audit report obtained which identified the fact only one bollard remained, concluding it would be unlikely to slow cyclists and may result in a cyclist colliding with a pedestrian at speed. In the primary proceedings, the evidence from Council’s Witness that the single bollard continued to serve a purpose was rejected.
On appeal, the Court noted there was no basis for according the audit report such weight, especially under circumstances where there was no evidence of a cyclist colliding with one of the bollards or a pedestrian at that site since their installation in 1999.
Given no liability against Council was established under the Civil Liability Act 2002 (NSW), the question of contributory negligence was not addressed. The appeal was upheld and the judgment of the District Court was set aside.