In New South Wales, s 5B of the Civil Liability Act 2002 (CLA) prescribes that a finding of negligence requires a plaintiff to establish that a risk was foreseeable, not insignificant and that a reasonable person would have taken precautions against that risk. The evidential burden is typically tackled by adducing direct evidence.
Where direct evidence is not available, the burden may be satisfied drawing inferences from other evidence available. However, that approach comes with significant risk as was recently examined by the District Court in Greentree v Blacktown City Council.1
Facts
Mrs Greentree (plaintiff), suffered injury, loss and damage as a result of a trip and fall while walking along a council footpath - constructed of concrete or pebblecrete slabs separated by pavers - in her local Government area of Blacktown. It was accepted that different pavers along the footpath had subsided over time, one paver had sunk to expose a raised edge of 23mm and that the plaintiff was aware of the defect.
There was no dispute that a duty of care was owed by Blacktown City Council to the plaintiff. The nature and scope of this duty required the Council to inspect the footpath and carry out any repairs reasonably required to reduce any risk of harm that was not insignificant. The primary issues for determination were the significance of the risk of harm which befell the plaintiff and whether, in the circumstances, a reasonable person in the position of the Council would have taken precautions to reduce this risk in accordance with s 5B(1)(b) and (c) of the CLA.
1 [2021] NSWDC 318.
