E-scooter rider sues Perth council – and loses in liability case

The Court considered several key issues, including whether the risk of injury was foreseeable due to the positioning of the fence, whether the City failed to take reasonable precautions and whether the Plaintiff’s conduct was a contributing or sole cause of the incident. 

The Plaintiff relied heavily on the fact that the City failed to comply with the Austroads Guide to Road Design Part 6A… Paths for Walking and Cycling, which recommends a minimum clearance of 0.5 m between a path and any obstacle that might impede users of the pathway. The Guide further states that where extenuating circumstances exist, the clearance can be reduced to 0.3 m. The clearance between the post and the pathway was 0.26 m, just falling short of these recommendations. 

While the Court accepted that the risk of a person riding a wheeled vehicle on the pathway making contact with the fence was foreseeable and not insignificant, it also found the risk was also obvious and avoidable by a reasonable person exercising proper care for their own safety and did not require remediation. 

Judge Alan Troy noted:

• The Plaintiff had travelled along the same 4.02m-wide pathway lined with identical posts for kilometres before the incident, in broad daylight.
• Her decision to travel at an excessive speed (20 to 25 km/hr) and lean unnecessarily far to the left rather than maintaining her position while allowing the cyclist to overtake was a key factor in the incident.
• There had been no prior incidents along the pathway, supporting the contention that the posts did not constitute a danger requiring a response from the City. 

The Court reinforced that while design guides like the Austroads guide can inform negligence claims, they are not determinative of liability. It accepted expert evidence that the path’s overall design offered excellent visibility and safe clearance. 

The Plaintiff argued the City should have built the posts further from the path or later moved them, which would’ve avoided the incident. But, the Court, citing principles from Neindorf v Junkovic [2005] HCA 75, rejected this reasoning as hindsight based. What matters is whether the City’s actions were reasonable at the time of design and construction. 

Judge Troy found that the City had not breached its duty of care and that the low-level risk posed by the fence post did not require additional warnings or design changes. The claim was dismissed in full, with costs awarded to the City.