What happened
The bridge on mining land formed part of a frequently used public shortcut known to the occupying company. Parked rail wagons left about 400 mm between their sides and the edge of the bridge, above a 4.9 metre drop. The plaintiff tried to cycle through that gap, his jumper caught on a protrusion and he fell, suffering catastrophic injury.
The issues
The appeal concerned breach of the occupier's admitted duty and the proper allocation of responsibility where the risk was obvious. The company argued that the cyclist should have avoided the bridge and that it was reasonable to take no further precautions. The court separately examined the company's conduct and the plaintiff's decision to continue.
The court's decision
The company remained negligent for allowing wagons to obstruct a bridge it knew people regularly crossed. But the plaintiff had ample opportunity to turn back and use the public cycle path, so his responsibility increased from one-third to 50%. The court reduced the damages judgment, ordered him to pay the appeal costs and allowed a Suitors' Fund certificate if he was otherwise qualified.
Understanding the figures
Agreed damages before contributory negligence were historical AUD 1,825,830. The trial judgment of AUD 1,217,220, reflecting a one-third reduction, was set aside and replaced by AUD 912,915 after the 50% reduction. Appeal costs were payable by the plaintiff, so the replacement judgment is not a verified net amount received.
What this case shows
An obvious risk does not automatically dispose of an occupier's breach. The company's commercial control of private land, its creation of the obstruction and its acceptance of regular public use mattered. The availability of a safe alternative was then significant in assessing the cyclist's own responsibility.
Why another case may differ
The court distinguished a commercial occupier creating danger on a tolerated shortcut from a public authority failing to warn across extensive recreational land. It did not prescribe identical precautions for every trespasser or a standard 50% reduction for dangerous conduct. This is a historical negligence and apportionment decision discussing s 5R of the Civil Liability Act.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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