Category: Obvious Risk
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The Owners – Strata Plan No 31337 v Balacco
in Obvious RiskThe 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…
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Section 5L: the risk characterised at the same level of generality
in Obvious RiskTapp 2022 273 CLR 454 [112] … the risk to which s 5L refers should be characterised at the same level of generality as it is characterised when assessing whether the defendant has breached a duty of care under s 5B (146) as well as for the purposes of assessing causation under s 5D. Since…
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The elements of the s 5L dangerous recreational activity defence
in Obvious Risk[104] The defence in s 5L requires a defendant to prove that: (i) the plaintiff was engaged in a “recreational activity” (130); (ii) the recreational activity was dangerous in the sense that it involved “a significant risk of physical harm” (131); (iii) there was a risk of that activity that was obvious (132); and (iv)…
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When obviousness is assessed
in Obvious RiskTapp v Australian Bushmen's Campdraft & Rodeo Association Ltd 2022 273 CLR 454 [110] assess after determining prima facie liability for negligence [111] usual need to be assessed after prima facie liability for negligence
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Obvious risk in the employment context
in Obvious RiskThere is an arguably unresolved question as to the extent to which an “obvious risk” within the meaning of the Civil Liability Act, 2002 can apply to an “employment situation”: Capar v SPG Investments Pty Limited [2020] NSWCA 354 at [60]. [60] There is thus a long history of claims by persons who have put themselves…