Case Analysis: Carey V Lake Macquarie City Council

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CASE ANALYSIS: BREACH OF DUTY OF CARE BY AN AUTHORITY AND CONTRIBUTORY NEGLIGENCE
Summary of Facts
Carey v Lake Macquarie City Council is an appeal from the district court of New South Wales, concerning negligence. The appellant, Carey, was riding his bicycle through a public park before sunrise, which he did regularly. One morning the appellant took a path he had never cycled on before. He was injured after cycling into a bollard positioned in the middle of the path. The bollard was slightly visible as it was dark blue and the path was unlit. The appellant had crossed the path during the day, and had seen the bollard on numerous occasions. The path was not designed for cyclists’ use, but the respondent knew that it was frequently used as
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The judges considered the effect of the severity of the risk by mentioning Shellharbour City Council v Johnson, which states that where the harm posed by an obvious risk is serious, an unreasonable response to the risk results in a breach of duty of care. It was found that the bollard created a ‘real and significant hazard for cyclists.’ On these factors, the judges found that the respondent’s response to the risk was not reasonable.
All judges agreed that because the placement of the bollard created a reasonably foreseeable risk, and the respondent’s response to the risk was not reasonable, taking into account the severity of the risk and the social utility of the bollard, the respondent breached its duty of care.
Issue 2: Is the appellant guilty of contributory negligence, and to what extent?
Determining contributory negligence
The relevant principle regarding this issue comes from s 5R of the Civil Liability Act 2002 (NSW), ‘standard of contributory negligence’. It states that when a person does not exercise the standard of care of a reasonable person in their position, determined on the basis of what the person knows or ought to know, the person is guilty of contributory negligence. The judges agreed that a reasonable person in the appellant’s position, having previously seen the bollard in daytime, would have considered the risk of harm before cycling on the path. The

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