Council appeal fails to overturn $1m public liability decision

Date: Apr 22, 2015

A cyclist who severely injured himself after riding into a boom gate has successfully defended an appeal from the council deemed responsible for the accident.

Rockdale City Council erected the barrier to enclose a stretch of land next to a local sailing club and its car park. The council had an informal agreement with the club that allowed the club to lock and unlock the gate whenever it pleased.

In the original case, the cyclist was awarded $1.16 million in public liability compensation after the judge ruled the council had breached its duty of care when the man collided with the lowered gate. The club, a co-defendant, was cleared of any responsibility.

The $1.16 million payout was reduced by 20 per cent due to contributory negligence, meaning the plaintiff was considered to be at fault to some extent for his accident.

Injury compensation appeal

The council appealed the first judge’s decision, asking the Court of Appeal to reassess whether or not a duty of care was owed and, if so, whether it had been breached.

Furthermore, the council believed the courts might have erred in only applying a 20 per cent contributory negligence rate.

As a result of the appeal, the cyclist launched a counter-claim to reduce the contributory negligence element of the payout and try to establish a duty of care on the part of the club.

Neither the council nor the cyclist contended the amount of compensation awarded, meaning the original lump sum remained in place until liability was confirmed.

Public liability decision

The appellate judges ruled against the council on all counts, claiming that a duty of care had been owed and that this was clearly breached.

Significant factors included the absence of a manned system for locking and unlocking the gate and the fact the council had previously been informed of other cyclists colliding with the barrier.
In addition, the judges said there was no other reasonable exit route from the car park where the incident occurred. The council had also failed to implement simple safety measures to prevent accidents.

While the cyclist’s counter-claim inferring a duty of care on the club was dismissed, the contributory negligence element succeeded. In fact, the appellate court found no negligence on the respondent’s part.

According to the judges, the man had been keeping a proper lookout, did not see the gate in time and was not travelling at excess speed.

“In those circumstances, there was simply no scope for any finding of contributory negligence,” court documents explained.

The man was therefore awarded the full $1.16 million without reductions.

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