The New South Wales District Court recently found a construction company was not liable for failing to illuminate a barricade erected for its building works, which a cyclist collided with at night.
- The key issues in this case were whether the risk of harm in colliding with the barricades in poor lighting was foreseeable and not insignificant, and whether the defendant’s response to any such risk was reasonable. The court also considered whether the “obvious risk” defence was applicable.
The defendant was engaged to carry out building works on and adjacent to Victoria Road in Werrington NSW. On 17 January 2017, the defendant erected a line of bright orange barricades adjacent to Victoria Road. On the evening of 19 January 2017, at approximately 9pm, the plaintiff and his son were riding pushbikes along a nature strip beside Victoria Road when the plaintiff collided with the barricade, causing injury.
The site was illuminated at night by two street lights, for which the defendant was not responsible. On the evening of the incident, one of the lights had failed. The plaintiff alleged that as a result of the low lighting, he did not notice the barricade.
The plaintiff brought proceedings against the defendant, with various allegations of negligence largely concerning failures to properly illuminate or otherwise mark the barricades. The defendant denied the allegations of negligence, and relied on defences contained in ss 5B – H of the Civil Liability Act 2002 (NSW), and also argued that the claim was statute barred, and that the plaintiff was guilty of contributory negligence.
The decision at trial
The court did not accept that the risk of injury was foreseeable. The court noted the plaintiff’s evidence that leading up to the incident, there were no difficulties with lighting and visibility. Further, this was not a case of “Stygian darkness” – only one of the two street lights had stopped working and the impact of this was not immediately apparent, nor did it require immediate action. Notwithstanding that the risk was not deemed reasonably foreseeable, the court went on to consider the remainder of the issues for determination.
The court also found the plaintiff failed to establish the risk was not insignificant. To that end, it was noted that the defendant was not responsible for the failure of the street light, and that had the light been operational, the plaintiff would have seen the barricades. The barricades in use were of the kind commonly used in road and building works. They were designed to be seen and conformed with relevant recommendations. The plaintiff failed to establish that in the event of greater than usual darkness, the risk of harm was foreseeable and not insignificant.
The court noted that any warning signs would not likely have been seen by the plaintiff noting his direction of travel and inadequate bicycle lighting. Further, it was noted that the installation of flashing lights was undesirable under relevant recommendations. The court also considered it relevant that the subject works were not being conducted at night, and the defendant was entitled to assume the lights were operational, where no faults had been reported prior. In those circumstances, the court found the defendant had taken all reasonable precautions.
After examining the relevant authorities on whether a risk is obvious, the court concluded that with an adequate bike light, the large and brightly-coloured barricades would have been visible and constituted an obvious risk.
In relation to causation, the court was satisfied that even if there was a breach by the defendant, it could not have been causative of the plaintiff’s injury. The court noted the inadequacy of the plaintiff’s bicycle light and the fact that he was looking down for potholes whilst riding.
The court rejected the defendant’s limitation defence on the basis that the plaintiff had taken all reasonable steps by instructing a solicitor and providing all relevant documentation. If it had been necessary to do so, the court would have apportioned contributory negligence at 50% because the plaintiff was riding quickly downhill with his bicycle light pointed downwards (not forwards) to detect potholes.
Implications for you
This case highlights the overall contextual approach taken by courts in assessing alleged risks. The court was influenced in its decision by the defendant’s entitlement to assume there would be operational streetlights, that cyclists travelling at night would use lights, and the evidence of minimal cycling activity in the area. The commission of a risk assessment report prior to the barricade being erected provided great support to the defendant’s case.
Updated 6 April 2023: On 31 March 2023, the NSW Court of Appeal dismissed an appeal by the cyclist in this matter.