Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454

[107] The correct approach to characterisation of the risk for the purposes

of breach of duty under s 5B of the Civil Liability Act was adopted in

Port Macquarie Hastings Council v Mooney (137). In that case, a

pedestrian slipped and fell into a stormwater drain on an unlit,

temporary gravel footpath. The characterisation of the risk ignored the

manner in which the pedestrian fell, and the particular hazard which

precipitated the fall (the stormwater drain). Sackville A-JA said (138):

“The relevant risk of harm created by the construction or

completion of the footpath was that in complete darkness a

pedestrian might fall and sustain injury by reason of an unexpected

hazard on the path itself (such as an unsafe surface or variation in

height) or by unwittingly deviating from the path and encountering

an unseen hazard (such as loose gravel, a sloping surface or a

sudden drop in ground level).”

Port Macquarie Hastings Council v Mooney(2014) 201 LGERA 314 at 329 [67].

See [117] Tapp for discussion of difference in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136