Posted on May 21, 2015 by
Council’s arrangement with third party fails to protect from finding in negligence
Rockdale City Council has lost its appeal against the decision to award substantial damages to a cyclist who suffered severe injury when he rode his bicycle into a boom gate that had been erected by the Council across a public road in a Council controlled car park.
The case, Rockdale City Council v Simmons  NSWCA 102, is interesting as it demonstrates that councils may be held to be negligent if the arrangements they enter into with other parties for the management of public land fail to reasonably protect against the risk of foreseeable harm to an identifiable class of persons.
The carpark and the accident
The accident took place in a public carpark adjacent to the St George Sailing Club (Club) on the northern bank of the Georges River. Although the carpark is open to the public, it is predominantly used by patrons of the Club. Riverside Drive is a public road that runs parallel to the Georges River, and adjoins (and is effectively part of) the carpark. Fraters Avenue is a residential street that intersects Riverside Drive at the eastern end of the carpark.
The Council constructed a boom gate near the intersection of Riverside Drive and Fraters Avenue in response to complaints from nearby residents about antisocial behaviour by motorists in the carpark late at night and in the early hours of the morning.
The primary judge found that Council officers were aware that cyclists would frequently ride along Riverside Drive through the carpark to access Fraters Avenue. The Respondent was attempting to do this on the morning of the accident when he struck the closed boom gate.
The Respondent sued both the Council and the Club in negligence in the Supreme Court. The primary judge found that the Council had been negligent but the Club had not. A number of issues arose in the subsequent appeal to the Court of Appeal. A major issue was whether the primary judge had erred in finding a duty of care was owed by the Council to the Respondent and whether the Council had breached this duty. As part of this discussion, the Court of Appeal considered the arrangement the Council had come to with the Club for the operation of the boom gate.
The Council’s arrangement with the Club
The primary judge had found that Council had entered into an informal arrangement with the Club for the manning and operation of the boom gate without entering into a contract or passing a resolution or instrument of delegation imposing specific responsibilities in respect of the operation of the boom gate on the Club or on any other body or person.
Although the Council had initially considered setting designated hours for the opening and closing of the boom gate, it ultimately gave the Club discretion to set the hours as the Club conducted functions at its premises with variable closing hours.
The Club allocated the responsibility for opening and closing the gate to its employed cleaner. On the morning of the accident, the boom gate was closed when the Respondent collided with it at 6:15am.
There was no evidence to suggest that Council had given any consideration as to what should occur if the Club’s cleaner was unavailable to open the boom gate.
The finding on appeal
At paragraphs -, the primary judge found that there was a need for a system to ensure that the boom gate was placed in the open position in a timely matter, given the high frequency of use of Riverside Drive by early morning cyclists. The primary judge also found that the ‘arrangement’ between the Council and the Club for the opening of the boom gate was dependent upon the Club’s cleaner being available to open the boom gate, and was likely to fail whenever the Club’s cleaner did not attend on time (as had occurred on this occasion).
The Council challenged those findings on appeal, submitting that they were unavailable on the evidence and irrelevant in any event. The Court of Appeal upheld the findings as fully supported on the evidence and relevant to the issue of whether the Council had discharged its duty of care to persons coming into the carpark by engaging a competent contractor.
It was significant that Council had decided not to extend the system that operated in respect of a number of other carparks the Council was responsible for under which Council’s own staff were responsible for locking boom gates at night and unlocking them in the morning. In those other cases, the fact that Council was directly in charge of the operation meant that a system of control and accountability applied, which was relevantly absent here.
The Court of Appeal upheld the primary judge’s finding that the Council’s arrangement for the opening and closing of the boom gate was inappropriate in the circumstances. The Court found the Council’s failure to take precautions in relation to daily opening of the gate was a necessary condition of the harm that the Respondent suffered. It was therefore appropriate for the scope of the Council’s liability to extend to the harm caused by the Council’s negligence.
Lessons for councils
The Court’s decision in this case illustrates that councils cannot afford to be lax when making arrangements with third parties which have the potential to impact on a council’s duty of care to persons coming onto public land under the council’s responsibility.
The courts are prepared to accept that a council may sufficiently discharge its duty to exercise reasonable care to persons coming onto council controlled land by engaging a competent contractor (see Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22), however the adequacy of such arrangements will be carefully scrutinised in negligence proceedings.
The Court’s decision can be read on the NSW Caselaw website here.