Written by In the recent case of Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58, the NSW Court of Appeal confirmed that a construction company was not liable for failing to illuminate a barricade erected for its building works.
The appellant suffered injuries when his bicycle collided with a barricade erected by the defendants as part of ongoing construction works. On the evening of the accident, one of the streetlights within the vicinity of the barricade was not working. The appellant alleged that because of the low lighting, he did not notice the barricade. The appellant claimed that the respondent breached their duty of care in failing to illuminate the barricade or place warning signs.
The issue was whether the risk of harm in colliding with the barricades in poor lighting was foreseeable and not insignificant, and whether the respondent’s response to any such risk was reasonable.
The Court of Appeal dismissed the appeal and reached the same conclusion as the trial judge that the risk of harm was not foreseeable. As there was no evidence that the respondents knew or ought to have known that only one light was working, it was found that the risk of harm that arose was not foreseeable. The fact that the appellant was not riding slowly as a result of reduced visibility did not mean he was taking reasonable care for his own safety, but rather suggested that the darkness was not severe.
The Court noted that by placing barricades along the side of the road, the respondents owed a duty of care to pedestrians or cyclists who passed. However, the respondents did not breach its duty in failing to illuminate the area or erect warnings as to the presence of the barricades.
This decision highlights the contextual approach taken by courts in assessing alleged risks arising from construction works.