Foreseeable, Non-Obvious Risk means with respect to the Civil Liability Acts, in particular Civil Liability (Personal Responsibility) Act - Nov 2002, a significant risk of Harm Sufferable which is -
(a) foreseeable to an Inviter who has undertaken Due Diligence of a particular ride route, ocean swim, bush walk creek crossing, kayak course etc, but may not be foreseeable to an Invitee, particularly an inexperienced/novice Invitee; and
(b) specific to a particular
RREA (ie. a bicycle ride route, kayak paddling
course, bushwalking route etc).
Section 5B of Division 2
Duty Of Care of
Civil Liability Amendment (Personal
Responsibility) Bill - Nov 2002 says an
Negligent in failing to warn an
Invitee(s)/participants against a risk of
unless the risk was foreseeable, significant and one where a reasonable person
would have warned its
Invitee(s)/participant(s) of that
Foreseeable, Non-Obvious, Explicit Risk.
Section 5B of Division 2 Duty Of Care of Civil Liability Amendment (Personal Responsibility) Bill - Nov 2002 says an Inviter is not Negligent in failing to warn an Invitee(s)/participants against a risk of Harm Sufferable unless the risk was foreseeable, significant and one where a reasonable person would have warned its Invitee(s)/participant(s) of that Foreseeable, Non-Obvious, Explicit Risk."Professionals are still required to advise their clients/patients etc of all material risks involved.
Sub clause (5) of Clause 5M "No duty of care for recreational activity where risk warning" notes that "A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)."
Alas, to many Inviters think that by providing a 'vanilla risk warning', they do not have to do their 'due diligence' to check for all Foreseeable, Non-Obvious Risks and all Explicit Risks and thereupon include all .
Hence, an Inviter needs to be aware of all Foreseeable, Non-Obvious Risks and all Explicit Risks in order to include them in his/her Risk Warning. These are often referred to as Blackspots that an experienced cyclist is aware of that a rider that has not cycled that road sections was not aware of the 'hidden danger'. Organisers/Inviters of bicycle rides which extend over several days hold a Duty Of Care to perform Due Diligence of the entire ride route in order to avoid Negligence by identifying all Foreseeable, Non-Obvious Risks which notably include bridges with gaps between timber planks, or bridges which have no safety balustrade or a low balustrade, storm water drainage grids, potholes, railway level crossings, road sections, particularly on descents which become slippery when wet. Upon identifying such Foreseeable, Non-Obvious Risks, organisers/Inviters then need to include these Foreseeable, Non-Obvious Risks in their Risk Warning.
Organisers/Inviters of multi-day rides need also to -
(i) identify dangerous road sections, for example busy one lane roads without a dedicated shoulder, that attract large trucks or cars towing boats on weekends or roads in need of repair; and
(ii) seek to avoid such roads by utilising safer, alternative lower traffic routes.
One ponders whether Australian Rotary Health, the organisers of 2009 Australian Bike Ride which cycled the perimeter of Australia - over 20,000km, were aware of their Duty Of Care to their Invitees/participants.
A "disclaimer" or "liability denial" might remove Australian Rotary Health's Duty Of Care to Invitees/participants on the Australian Bike Ride to warn of Foreseeable, Non-Obvious Risks if Australian Rotary Health successfully argued that-
(i) Australian Bike Ride constituted a 'Recreational Service' (services supplied to a person(s) for the purposes of, in connection with or incidental to, the pursuit by the person of a Recreational Activity);
(iii) a participant in a Recreational Activity is able to waive the requirement that services be provided with due care and skill due to amendment to the Trade Practices Act 1974 (Cth).
Examples of Foreseeable, Non-Obvious Risks in a Risk Warning are not limited to:
1. Our 75km "Westwood to Mt Cook and back" crosses a railway level crossing at Fallsville. The rail lines protrude excessively above the roadway and on an acute angle and when wet from rain, or after a heavy dew, have brought down a lot of cyclists. Dismount and walk your bike over those rail lines.
2. Our 94km Cinque Montagnes five gorges ride from North Turramurra crosses the Berowra Waters ferry. There are metal girders protruding on the concrete boarding ramps to the ferry. Those metal girders, particularly when wet from rain or after a heavy dew have brought down a lot of cyclists. Dismount and walk your bike over those girders.
3. Our 12km kayak to Woy Woy and back crosses under the Rip Bridge. When a southerly is blowing the swell approaching the Rip Bridge can become particularly choppy. Please stick to the LHS of the channel.
4. Our Hornsby to Wisemans Ferry ride returns via Clintonville. 5km from Wisemans Ferry is a timber bridge with longitudinal planks which have some gaps between the adjoining planks which are much wider than 23mm wheels. Several cyclists have snapped their necks and died instantaneously after their front wheel has become caught between two adjoining longitudinal planks. Others have become paraplegics or quadriplegics. Do not try to 'pick-a-plank'. Dismount and walk your bike over that timber bridge, and any other timber bridge unless you know from experience that it does not have some gaps between planks or high protrusions at joints.
5. As there is no self-regulated CTP Green Slip insurance cover when cycling a bicycle, Organiser(s)/Inviters must warn Invitee(s) to hold third party insurance to cover Invitee(s) against their Negligence whilst cycling, because if an Invitee(s)' negligence whilst cycling seriously injures another cyclist or a third party not involved in the ride damages/costs from litigation by the injured party(s) could exceed a million dollars. For example, an Invitee cycles into a parent pushing a stroller and the baby in the stroller suffers brain damage or a spinal injury. If the Organiser(s)/Inviters had not warned the Invitee(s) to hold third party insurance and the Invitee(s) are litigated by the injured party(ies), the Invitee(s) could counter sue the Organiser(s)/Inviters. Third party insurance can be obtained by joining Bicycle NSW, Bicycle Vic., Pedal Power ACT or a cycle racing club. About 30% of household insurance policies provide third party cover to the holder of the policy which extends to negligence whilst cycling beyond the boundary of the home insured. However, any cyclist relying on their household policy to cover their negligence whilst cycling should check the exclusion clauses in their policy very carefully.
6. Today's ride includes a 12km out-and-back from the Akuna Bay 'T-Junction' to West Head. 150m before West Head Lookout where the road is narrow and the camber flattens out as it veers clockwise, when ideally it should be banked and not become narrower. In Sept 2008, the Ride Leader, Philip Johnston, saw an injured cyclist who would have needed about 70 stitches to reaffix the flesh around his knee after he spun off on the LHS. He had lost that corner by going too fast and in careering over the low guardrail on his LHS caught his knee on one of the vertical posts. 2 ambulances and a very large rescue van attended. In April '07, a seasoned cyclist, Bruce Stump, came off on a midweek ride and had to get collected. In Sept 2004 Cathy Shelley rode to West Head in a group of five cyclists incl her husband, Graeme Shelley, and Eric Wehr. Cathy came off at same Blackspot and broke her collar bone. An ambulance took Cathy to hospital. In Sept 2003 Jhonnie Blampied, then Chairman and CEO of DDB Advertising Agency, came off at the same Blackspot when chasing two cycle mates. Jhonnie, who was collected by a Careflight Helicopter, remained in a coma for 3 months. Jhonnie’s wife, ABC journalist, Ruth Ritchie, wrote about her experiences in Jhonnie’s lengthy rehabilitation in acclaimed novel, Life Matters. It took Jhonnie Blampied 18 months to re-enter the workforce. Westpac Lifesaver Helicopter salvaged a 30 year old push bike rider on 25 April 2006. “A 30 y/o male push-bike rider with head injuries was treated on the scene at West Head and transported to Royal North Shore Hospital” I have reason to believe that this accident also occurred at the same Blackspot. 7 years ago a cyclist from Narrabeen on a Muggaccinos’ Sunday ride similarly lost that corner and had to be collected due to bumps and bruises and a mangled front wheel. Bicisport Cycling Club which conducts road races in West Head lists on its website that this bend is very dangerous.
“West Head Road
- The West Head Rd loop is just on 14k each way (28k back to the Akuna Bay road
intersection), with 11 climbs in total - 5 climbs each way plus the
steep Commodore Heights climb.
The very end
of the West Head loop is the only serious traffic blackspot - the steep descent
into Commodore Heights is greeted with a near impossibly sharp right hand bend
with little or no camber. This right hand corner has claimed numerous victims
over the years,
and for this reason northside club racing events avoid this nasty corner
altogether (club races do a u-turn at the NP&WS Rangers Station, just at the
start of the dangerous descent into Commodore Heights).”
7. Today's ride to Akuna Bay drops clockwise past Cottage Point and Illawong Bay. 2km past Cottage Point Rd is an acute right turn with a stone wall which has claimed three cyclists that your Ride Leader I know of It is approx 1km past Cottage Point Rd. A very seasoned cyclist, Siggy Hoffman, got carted off in an ambulance about 18 months ago when he took the switchback too fast on a wet day. Peter Williams hit that wall but fortunately righted himself. It is referred to by several cyclists as The Wall. Below is a warning on the Bicisport Cycling Club website:
“The right hand corner half way down the descent (with the rock wall on the left) has claimed numerous victims especially in the wet. The road works from Illawong Bay to Akuna Bay have been poorly completed & the (new) road is below average.”
8. The first dog leg left when descending Bobbin Head from Nth Turramurra (about 800m from the tollbooth) has claimed two Muggaccinos cyclists over the years. The first was Brenda Baldwin in 1997 on a dry rode surface who was bruised and battered. The 2nd, seasoned cyclist, Peter Tyson, was carted out in an ambulance with a busted hip around 1999 on a dry road surface. We refer to it as Amen Corner. Please descend Amen Corner slowly.
9. Today's bushwalk crosses a rock ledge, colloquially known as Slippery-Slide Ledge, about 2km past Hooks Bridge on the southern side of Brown Mountain. Slippery-Slide Ledge gets virtually no sunlight and has a heavy bed of lush verdant moss. Take particular care when crossing Slippery-Slide Ledge, especially after rain when the creek is flowing vigorously.
10. On bicycle rides returning up McCarrs Creek Rd from Church Point, West Head or Akuna Bay, upon reaching the apex, do not use the traffic lights to enter Mona Vale Rd because vehicles travelling West from Mona Vale do not have to halt, or even slow down, to allow vehicles/cyclists at those traffic lights, to merge-in. Therefore upon receiving a green light it can be dangerous to attempt to merge-in with vehicles travelling 80km p/h (circa), particularly if you are not adept at looking over your left shoulder. Either take the dedicated tunnel under Mona Vale Rd to gain entry to Mona Vale Rd, or return along Myoora Rd being the same low traffic road we took earlier in the ride when cycling from St Ives.
11. The descent from Nth Hornsby to Bobbin Head has evidenced a disproportionate frequency of nasty spills. In mid March a male cyclist descending a sharp Right switchback approx 1.8km from the bridge slipped on the wet road surface and was driven over by a car towing a boat. He was put in an induced coma and died a few weeks later. The final 400m before the bridge is particularly slippery due to some cars towing boats discharging oil on a road surface in a southern slope which is often in shadow. Descend with caution, particularly in damp conditions.
12. The 4km descent to Galston Gorge bridge commences with a steepish 800m straight section whereupon cyclists are confronted by a "120m deceptive wiggle" which could render an impetuous rider wearing an upcoming car. The "120m deceptive wiggle" starts with the road veering right for about 90m, then a sharpish left turn over about 30m and then a less sever right. If you do not respect the sharpish left turn, particularly on a wet surface, you could wear an upcoming vehicle, or more correctly, an upcoming vehicle could be wearing you.
Other Foreseeable, Non-Obvious, Explicit Risks include -
(a) an unbanked camber which renders it very difficult to hold a corner on a downhill, particularly on a rainy day or after a heavy dew;
(b) a sharp switchback on a steep downhill;
(c) Dangerous Timber Bridge with planks running longitudinally down the length of the bridge with gaps between some planks wider than a road bicycle wheel ie. >23mm;
(d) greasy or regularly damp sharp corner on a downhill, due to the corner being blocked by a N/E steep slope; or
(e) Railway Level Crossing with a highly protruding railway line girder; and/or large gap between the railway line and the roadway; and/or the rail line is on an acute angle to the road direction which become more dangerous in damp conditions due to the diminished Coefficient of friction.