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.
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.
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.
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
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.
