In this recent decision, the Court of Appeal addressed the concept of 'obvious risk' under the Civil Liability Act 2002 (NSW) and its implications for liability and insured parties.
In issue
- The key issue before the Court was whether the unpainted speed hump in a car park constituted an ‘obvious risk’ for the purpose of section 5F of the Civil Liability Act 2002 (NSW) (CLA), which is defined as one that would be apparent to a reasonable person in the position of the injured party, even if the risk is not prominent or observable and even if it has a low probability of occurring. Other issues included the lighting at the time of the fall, the findings of breach and causation, the failure to find contributory negligence, and two aspects of the assessment of damages.
The facts
On 18 May 2023, the plaintiff attended a commercial building in Bondi Junction for the purpose of her employment. Usually, the plaintiff parked her vehicle in a nearby street, however due to roadworks, she was required to park in the building’s car park, which she was unfamiliar with. At approximately 5:15pm, the plaintiff was walking to her car when she tripped on a speed hump and fell, sustaining significant injuries including a broken right humerus.
It was found that the carpark was dimly lit and the speed hump was the same grey colour as the concrete surface, making it difficult to see. Notably, all other hazards in the car park such as columns, concrete steps, rails and wheel stops were all painted yellow. The two speed humps were the only hazards in the carpark that were not painted. The owners corporation admitted that the speed humps were unpainted at the time of the incident and painted yellow and black following the incident.
The decision at trial
The primary judge entered a verdict for the plaintiff in the sum of $385,484.78. The primary judge concluded that the unpainted speed hump was not an obvious risk under section 5F of the CLA, citing factors such as the lack of yellow and black painted on the speed hump, specifically in circumstances where all other hazards in the carpark were painted. The primary judge also concluded that the lighting was inadequate, that breach of duty and causation were established and that there should be no reduction of damages for contributory negligence.
The decision on appeal
The grounds of appeal raised by the owners corporation were that the primary judge erred in finding that:
- The lighting was inadequate at the time of the respondent’s fall.
- The unpainted speed hump did not give rise to an obvious risk.
- It was irrelevant that there had been no reports of any prior incident.
- The absence of paint on the speed hump was a necessary condition of the occurrence of the respondent’s injuries.
- There was no contributory negligence on the part of the respondent.
- The respondent was entitled to damages for future economic loss and future domestic assistance.
The appellate Court accepted that the primary judge had erred in finding that the lighting was inadequate at the time of the incident, but found that the same was not determinative in deciding whether the owners corporation faced exposure.
In relation to the issue of ‘obvious risk’, the appellate Court held:
- The primary judge relied on matters that were irrelevant, including the plaintiff’s infrequent use of the car park, her unfamiliarity with it, and the absence of any finding that she was distracted by searching for her keys or mobile phone.
- The critical facts when determining whether the speed hump posed an obvious risk included that there were only 2 speed humps in the entire carpark, entrants to the car park did not have to be constantly conscious of obstacles underfoot and every irregularity in the concrete surface underfoot was painted yellow except the 2 speed humps.
- The fact that the respondent had driven over the speed humps that morning did not make the risk presented by the speed hump obvious, nor did the fact that the speed hump was large enough to be noticeable when it was driven over.
- Whether a risk is an 'obvious risk' is objective1, and must apply to the first-time user as well as the tenant who has parked a car in the same place for months or years.
Accordingly, the appellate Court agreed that the speed hump did not pose an obvious risk for the purposes of section 5F of the CLA. While the Court of Appeal determined it was not necessary to explore in detail whether painting the speed hump would represent a ‘warning’ for the purposes of section 5H of the CLA, it did comment that ‘While there is a sense in which painting the speed hump yellow does amount to a warning, it is not an especially apt word for paint which makes a feature of the surface more obvious than it otherwise would be’.
The appellate Court otherwise agreed with the primary judge that the owners corporation breached its duty of care by failing to paint the speed hump, which would have been a reasonable precaution against the foreseeable risk of harm given the minimal cost to do so and the presence of other painted hazards in the carpark. On the balance of probabilities, the incident and subsequent injury would not have occurred if the speed hump had been painted.
The challenges to the assessment of damages for future economic loss and future domestic assistance were successful, and damages were reduced to $250,499.06, plus interest.
Implications for you
Insureds and insurers should take note that even where a hazard/obstacle is sufficiently well lit and in no way obstructed from the view of an injured party, it does not mean a court will accept that the risk posed by it is obvious. In order to rely on the defence of obvious risk, a defendant must be able to objectively show that the risk was obvious to a reasonable person (not just the subject claimant/plaintiff). More broadly, this case also reinforces the need for insureds to take reasonable precautions to address foreseeable risks, even if the probability of harm is low.
The Owners - Strata Plan No 31337 v Balacco [2026] NSWCA 50
1 Council of the City of Greater Taree v Wells [2010] NSWCA 147; [2010] Aust Torts Reports 82-063 at [75]- [76].
