Marsden v Ydalia Holdings (WA) Pty Ltd

[2006] WASCA 52

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Duty of care
4. › Duty owed to plaintiff as member of a class
5. › Cyclists using dual-use path
6. › Whether contractor owed duty to class of cyclists
1. Tort
2. › Negligence
3. › Breach of duty
4. › Reasonable response to foreseeable risk
5. › Obviousness of risk
6. › Relevance to breach analysis
7. › Whether warning sign was adequate response
8. › Whether obviousness of risk negated need for further precautions
1. Tort
2. › Negligence
3. › Breach of duty
4. › Risk created by defendant
5. › Diversion of cyclists onto hazardous area
6. › Whether defendant who created risk could rely on expectation that cyclists would exercise care for own safety
1. Appeal
2. › Standard of appellate review
3. › Appeal from judge sitting alone
4. › Obligation to conduct real rehearing
5. › Weighing conflicting evidence
6. › Deference to trial judge's findings on credibility

Quick Take

Where a contractor creates a foreseeable risk by diverting cyclists from a sealed path onto a hazardous area, a warning sign directing cyclists to dismount and walk may constitute a reasonable response to the risk if the danger is obvious to cyclists generally, though this was contested (McLure JA dissenting). The obviousness of a risk is a relevant factor in the breach analysis but is not determinative; its weight varies according to the circumstances, particularly whether the defendant created or increased the risk.