Today’s question comes from a paramedic who owns

… a company that deals in mitigating safety and risk in austere and wilderness environments. One of the services we provide is an integrated emergency information/portal system for public-access mountain bike (and other trail) networks around the country. This is usually instigated at a local council/jurisdiction level with a view to providing a safer adventure environment.

Some of the systems have a hazard identification feature that can be accessed by portal users. Simply, users can report a trail issue- from which it enters a closed-loop maintenance system.

The common question we are asked is: If a hazard is logged/identified, but fails to be rectified in a reasonable manner/amount of time, who is responsible? Local councils often come at this feature with trepidation that they are now “accepting” risk responsibility. We would simply like to be able to give them an honest (and researched) answer to these fears.

One cannot answer that question in the abstract, much more information is required. What can be said is that mere knowledge of the hazard does not give rise to a duty to do something about it. I may know that there is a trip hazard on the sidewalk outside my house but that does not impose an obligation upon me to fix it. Whether there is a duty to do anything depends on who owns the asset (in this case the trail), what is it used for, what other conflicting responsibilities the owner has, the vulnerability (or otherwise) of those using the trail and consider of the factors set out in the judgment of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; for example:

  • Was the plaintiff vulnerable to harm?
  • Did the defendant know of that vulnerability?
  • What could either the defendant or plaintiff do to protect the plaintiff from harm?
  • What other conflicting responsibilities did the defendant have?
  • What resources did the defendant have?
  • What would the hypothetical reasonable person, in the same situation have done?
  • What is the nature of the relationship between the plaintiff and the defendant?

Even if council is the owner and under a duty to maintain the trail, as the question implies that is at best a duty to do so in a reasonable time and manner and what is reasonable equally depends on a myriad of circumstances about the nature of the trial, the vulnerability or otherwise of the users, the obvious risks inherent in the activity, the social value in allowing users to ride the trail etc (Civil Liability Act 2002 (NSW) s 5B (and equivalent provisions on other jurisdictions); Wyong Shirt v Shirt (1980) 146 CLR 40).

And if someone is injured then it does not follow that the injury was due to the hazard. Mountain bike riding is an inherently risky activity no doubt made more popular by the fact that trails are not paved roads so hazards are not only inevitable, they are part of the challenge. Proving that the cause of someone’s injury was some unattended hazard rather than the activity will be difficult (Civil Liability Act 2002 (NSW) s 5D (and equivalent provisions on other jurisdictions); Strong v Woolworths Ltd [2012] HCA 5).

Finally, if the trail is owned by council and there is a duty to maintain it then there is also a duty to ensure a system of identifying issues, whether by inspection or a system to allow users to report it. It won’t be any defence to council to say ‘but we did not know of the hazard’ if they had no reasonable system to identify the hazard (again see Strong v Woolworths Ltd [2012] HCA 5).

Just being told of a hazard doesn’t automatically impose liability for any adverse outcome but it does give information to allow the owner of the hazard to assess it, consider the risk and decide what, reasonably, to do about it. That can only be for the good. It always concerns me that people who have jobs think they are better off not knowing about a potential risk in the belief that if they don’t know they cannot be responsible. You can be legally responsible for not knowing what you should have known. And if councils, or council staff don’t want to take responsibility for reasonably maintaining council assets for the benefit of their community they have forgotten why the council exists and why they have a job.