In Leibbrandt v City of Joondalup [2025] WADC 31, the District Court of Western Australia (Troy DCJ) dismissed the plaintiff’s personal injury claim against the City of Joondalup (the City) after a she collided with a fence post next to a shared path near a popular Perth beach.
Key facts
On Friday 7 January 2022 in the afternoon, the plaintiff and her husband rode their electric scooters from their home in Kallaroo towards the Hillarys Harbour Yacht Club. The plaintiff struck a fence post that was only 0.26m away from the path, as opposed to other nearby posts that were positioned 0.8m away from the path.
A photograph of the scene of the collision, with the plaintiff’s scooter next to the post in question, was extracted from the defendant’s expert’s report into the judgment and is copied below.
As his Honour summarised:
[107] The Plaintiff, Mrs Leibbrandt, was riding her electric scooter along a busy multi-use shared pathway at approximately 20 – 25km per hour. It was a notably straight stretch and it was broad daylight. The path is the maximum width for such pathways. Mrs Leibbrandt heard a bell behind her. Rather than hold her position, she moved to the far left edge of the pathway, so as to either leave the path entirely or occupy the extreme left and at the same time lean further to her left. In doing so, the most likely contingency is that the end of her handlebar struck post 6 causing her to fall off.
Prior to the collision, the City established a policy on designing paths for walking and cycling, which incorporated a national guide (the Guide). The Guide recommends a minimum of 0.5m between a path and any obstacle that might cause cyclists to lose control or be injured. “Where extenuating circumstances exist”, that can be reduced to 0.3m.
The plaintiff relied heavily, if not exclusively, on the City’s non-compliance with the Guide in relation to the position of that single post.
The defendant adduced expert evidence of the various circumstances in which fences are less than 0.3m from the path, including large stretches of our coastline, and convinced the Court that the important width was not the distance from the pathway to the fence, but the total width of the pathway. In this case, the pathway was very wide.
The City challenged the plaintiff’s credibility due to her inconsistent statements on how much she drank before riding her scooter. Her hospital records said she had 2 gin and tonics. The plaintiff disputed this, saying that she said she did not like tonic (so the record must be wrong), and insisted that had only consumed 1 gin and soda, and although she made herself a second drink, she put it in the fridge when she and her husband decided to leave. His Honour could not exclude potential error in the contemporaneous medical notes and consequently did not infer the plaintiff was lying – however unlikely it may sound to have made a gin and soda and then put it in the fridge for later.
As always, the case was bound by the pleadings. Once Troy DCJ dealt with the evidence the number of drinks the plaintiff consumed to resolve the arguments on credibility, the plaintiff’s alcohol consumption was not relevant. The defendant had not pleaded a case that relied upon the plaintiff being intoxicated (for example, for contributory negligence). Therefore, the plaintiff’s level of intoxication was not a fact in issue.
The City also challenged the plaintiff’s credibility due to her somewhat inconsistent statements regarding her speed. His Honour found she gave evidence that portrayed her driving to be in a manner more careful that it actually was, and that her speed was excessive given the busy she described.
Troy DCJ, following the defendant’s application, also inspected the scene of the incident. That inspection appears to have been beneficial to the defendant’s case, as His Honour was able to appreciate how wide the path actually was.
Principles of law
The claim was brought in common law and pursuant to the Occupiers’ Liability Act 1985 (WA) (OLA). Troy DCJ accepted the content of the duty of care in both bases was materially identical, and the relevant risk of harm was “the risk of a wheeled vehicle, as operated by an outdoor pathway user, making contact with the fence or parts of it, when travelling on the pathway and suffering personal injuries”.
His Honour accepted guides may be useful as a consensus of professional opinion and practical experience. However, failure to follow a standard, without more, did not establish negligence. In this case, particularly given the very wide pathway, the 4cm discrepancy did not amount to negligence.
Applying section 5(2)(c) and (d) Civil Liability Act 2002 (WA) and section 5(4)(g) of the OLA, his Honour made various comments about the usefulness of public pathways, and the extreme burden on the City in inspecting and maintaining its almost 1000kms of pathways.
The crux of the judgment is at paragraph 191: “It was obvious that there were posts off to the side of the path… their presence was so ordinary and so visible, that reasonableness did not require any action on the part of the City”.
Key takeaways
This case provides important reminders that:
- Claims are not bound to succeed where the alleged negligence is merely a failure to abide by guides and policy decisions, even where they are universally accepted and drafted by professionals, especially where the derivation from such documents is explained by defendant’s expert evidence.
- Reasonableness must be assessed prospectively, not retrospectively. That observation is trite, but it is especially important where the alleged tort could very easily be avoided in hindsight.
- Contemporaneous medical evidence is useful, but caution should be given when relying upon the notes made by doctors about matters irrelevant to the provision of care to the plaintiff. The content of the notes therefore may not always the accepted truth.
- Electric scooters are dangerous, and a gin & soda should never be put back in the fridge.
This article was written by James Bordi, Solicitor Insurance & Risk.