Cyclist Collides With a Metal Chain – Whether Obvious Risk Defence Under the Civil Liability Act Available

Judgment date: 1 July 2010

The Council of the City of Greater Taree v Daryl George Wells[2010] NSWCA 147

New South Wales Court of Appeal

In Brief

• The Civil Liability Act , 2002 (CLA) does not define or delimit the circumstances in which a duty of care will arise. That remains the province of common law principles.
• Section 5B is directed to whether a found duty of care has been breached and substantially restates the common law principles set out in Wyong Shire Council v Shirt
• At common law the court is required to identify what a reasonable person in the position of the defendant would do by way of response to a reasonably foreseeable risk of injury. This is consistent with s 5B(1) of the CLA: Graham Barclay Oysters Pty Limited v Ryan