The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50
[42] Ground 2 of the appeal challenged the finding of the primary judge that the unpainted speed hump did not give rise to an obvious risk. The appellant’s further submission was that the effect of s 5H was to prevent any conclusion that there could be breach of duty by failing to paint the speed hump, on the basis that the painting amounted to a “warning”. That submission was supported by what was said by this Court in Council of the City of Sydney v Bishop [2019] NSWCA 157; 237 LGERA 200 at [10] (by way of reasoning in the alternative by Basten JA) and [28]-[29] (as one of three paths by which Macfarlan JA resolved the appeal), contrary to Brereton JA’s dissent at [60]-[61], and perhaps also by the carefully qualified ex tempore reasons in Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325 at [7]. 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. A car which breaks down on a busy road in daytime probably presents an obvious risk to drivers, but it is not clear to me that raising its bonnet or turning on its hazard lights is a “warning” for the purposes of s 5H, such that there can never be a duty to take either of those steps. It is not necessary to take these considerations (none of which was the subject of argument) any further, because as explained below, I have concluded that the premise is not made out.