Insurance Law

Authors: Michael Bath, Partner, Ryan Stehlik, Special Counsel & Kim Ong Lynch, Senior Associate

Navigating what will and will not constitute an obvious risk under the Civil Liability Act 2002 (NSW) (CLA) can be a tricky task. Two recent judgments delivered by the New South Wales Supreme and District Courts provide further guidance in determining when a risk will be obvious. This newsletter outlines the obvious risk provisions and examines those decisions.

1. In Kempsey Shire Council v Five Star Medical Centre Pty Ltd,1 the presence of a kangaroo on the runway of an aerodrome was held to be an obvious risk, especially as the kangaroo hazard had been made known to pilots through an airservices publication.
2. Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care2 established that it was reasonable for an aged care facility not to take precautions to remedy the 10mm-20mm height differential in concrete pavers in the car-park area, as 'the nature and extent of the danger was minor, obvious, and of a kind unexceptionally encountered in outdoor areas'.3 The recent similar case of Council of the City of Sydney v Bishop4 confirmed that the risk of a person tripping on a 16cm raised curb separating the footpath and the walkway was obvious, considering the discernible height difference and colour differentiation.
3. Bunnings Group Ltd v Giudice5 found that a two inch gradated slope from the concrete floor to the edge of the safety matting at a children’s playground at Bunnings, highlighted by a yellow line, was an obvious risk – 'the fact that the children’s playground had a different floor surface was obvious, and would have been expected by anyone familiar with children’s playgrounds'.6
4. In Hawkesbury Sports Council v Martin,7 a steel cable strung between timber bollards forming a fence between a car-park and a playing field in a community park was held to be a 'plain and obvious risk'.8

Two more recent judgments delivered by the New South Wales Supreme and District Courts provide further guidance in determining when a risk will be obvious. This newsletter outlines the obvious risk provisions and examines those decisions.

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