A bump on the path: a case study of Council's duties in respect of shared pathways

03 April 2023

A seemingly harmless bollard is the subject of a legal dispute in Moore v Ballina Shire Council.

This case examines the liability of Council with respect to an incident which occurred on a shared pathway. The case focuses on whether Council had a duty of care to remove a bollard that allegedly posed a risk to pedestrians. The case also raises issues of obvious risk, the balance between risk and benefit in shared pathway design and the complexities of determining liability in such cases.

In issue

The issues for determination by the court at trial included:

  • Whether there was a risk of harm of someone on a bicycle either colliding with the bollard or having an accident trying to avoid a collision with the bollard
  • Whether the benefit of the bollard outweighed the risk of harm it created
  • Whether the risk was obvious
  • Whether contributory negligence applied
  • Whether the cause of the incident was the bollard or the pedestrians
  • Whether Council ought to have addressed the risk asserted by the plaintiff with respect to their allocation of resources

The background

On 27 August 2020, the plaintiff, Diana Moore, was riding her electric bicycle on a shared Council pathway designated for both pedestrians and cyclists. She attempted to overtake pedestrians by moving to the right-hand side of the pathway. One of the pedestrians moved to the left upon hearing the plaintiff’s bell and then to the right before moving left again, causing concern for the plaintiff. The plaintiff continued on her intended course but swerved to avoid a bollard on the right-hand side but ended up on uneven ground heading for rocks. While turning left to rejoin the pathway, her bicycle went out from under her and she sustained personal injuries.

The crux of the plaintiff’s allegations of negligence was that the Council was aware of the risk of a person being injured through a collision with the bollard or through attempting to evade the bollard. The plaintiff further alleged that the Council breached its duty of care by failing to remove the bollard. The plaintiff relied on the following documents to assert Council’s knowledge of the risk:

  • Customer Request Management enquiry (CRM): A notice of a damaged bollard (not the bollard in question but a nearby second bollard) was received by Council on December 8, 2016, and the Council removed it, and the subject bollard remained.
  • Road Safety Audit Report: A report prepared for the Council in June 2017 assigned a medium risk rating to the remaining bollard and suggested it should be corrected or the risk significantly reduced if the treatment cost is modest but not high. The audit report further stated: 'There is only one bollard at the southern end of the northern break wall which is unlikely to slow cyclists and may result in a cyclist colliding with a pedestrian at speed.'
  • A photograph showing fog lines within the pathway, indicating the pathway's edge. The second bollard, now removed, served the purpose of prohibiting larger vehicles from using the pathway. Without it, that purpose was no longer served.

The decision at trial

The Court found that the Council as the occupier of the pathway, owed the plaintiff a duty of care, and breached that duty by failing to remove the subject bollard given that the Council had previously removed another bollard along the pathway following the CRM on 8 December 2016.

Council argued that the bollard was not the cause of the accident but that the pedestrian’s errant movement caused the plaintiff to veer off the pathway. The plaintiff argued that 'but for' the Council's failure to remove the bollard, the accident would not have happened. The Court found in favor of the plaintiff, and the argument that any danger caused by the bollard was offset by the dangers it reduced was not invalid following the previous bollard removal in 2016. The Court found this conclusion was also supported by the fact the plaintiff had earlier that day overtaken pedestrians without incident.

The Court accepted the plaintiff’s evidence that she did not see the bollard until the pedestrian moved to the left the second time, and as noted above was focusing quite sensibly on the apparent undecided pedestrian. Having accepted the evidence of the plaintiff that she did not see the bollard until she was within 1 to 2 metres from it and that she at all times acted reasonably, the Court concluded that the risk was not obvious, nor would the risk have been obvious to a reasonable person in the plaintiff’s position. On this basis the Court also found that the plaintiff did not contribute to the incident.

The Court found that the utility of the subject bollard ceased in 2016 when the Council removed the previous bollard. In tandem, the bollards served a purpose. However, a single bollard represented a hazard which the Court accepted could be concealed by pedestrians at the detriment of the plaintiff, and the public at large.

Council attempted to rely on section 42 of the CLA which provides that a Court cannot in its reasoning challenge the general allocation of Council’s resources for the purpose of exercising its functions. Council argued that there was a general allocation of resources for the purposes of maintenance which did not extend to carrying out the maintenance required here and that the budget was nearly fully spent or overspent in the relevant period dealing with CRM matters.

The evidence ultimately demonstrated removing the bollard could occur from the allocated budget, that the removal of the bollard had minimal costs involved and that remediation of the 2016 bollard did not require any special allocation of funds. The Court also pointed out the medium risk matters of the audit report are matters that are precisely if not more informedly of the same nature as the CRM reports, demonstrating an allocation of resources by Council to address the very matters the subject of the audit report.

The Court accepted that a finding of negligence is not precluded by reason of section 42 nor by reason of section 5B and more particularly 5C and that there was no need for any reallocation of resources to carry out the precaution of removing the bollard.

Implications for you

This decision highlights the need for maintenance and safety inspections to be carried out diligently and for previously identified potential risks to be addressed by occupiers. It also highlights that maintenance and inspection of older fixtures must consider the overall utility that they serve the public, and whether through the passage of time, such fixtures have evolved from risk prevention measures, into hazards.

The decision also highlights the intense scrutiny Councils are likely to face in attempting to argue the section 42 defence relating to budget allocation. In this decision, the Court appeared disinterested in this argument, and through further investigation, the Council failed to objectively prove this defence as there was evidence that the removal of the bollard could have been accommodated by the Council’s budget.

Failure to consider these issues carefully and conscientiously may result in findings of negligence.

Updated 17 July 2023: On 6 July 20203, the NSW Court of Appeal allowed an appeal by the Council, finding that the Council did not act unreasonably in taking the view that a single bollard continued to serve some purpose. If one bollard was a hazard, it must also be an obstacle which may deter speeding cyclists. Even if it did not, no collisions occurred between when the bollard was put in place in 1999 and the date of the trial in 2022. Since it was not established that the Council, by leaving the single bollard in place on the pathway, failed to take reasonable care for the respondent/plaintiff’s safety, the appeal was upheld and the judgment in the District Court set aside.

Moore v Ballina Shire Council [2022] NSWDC 691

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