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Obvious risk: framing the relevant risk September 1, 2021

Cox v Mid-Coast Council [2021] NSWCA 190

  1. It was not appropriate specificallyto identify the Ferris wheel in the characterisation of the risk of harm: at [1] (Meagher JA); [41]-[42] (Payne JA); [85] (Emmett AJA).
  2. Although the risk of harm must be identified with sufficient specificity to capture the harm which resulted from its materialisation on the facts of the particular case, it must also be expressed at a level of generality which preserves the intent of s 5L Civil Liability Act in allocating where the burden falls for harm suffered by the manifestation of an obvious risk of a dangerous recreational activity: at [1] (Meagher JA); [43] (Payne JA); [85] (Emmett AJA).

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65; Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152 applied.

  1. The risk of harm identified for the purpose of s 5L need not be the same risk of harm identified for the purpose of determining the existence and content of a duty of care: at [1] (Meagher JA); [48] (Payne JA); [85] (Emmett AJA).

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 applied.

As to issue (2):

  1. The risk of collision with an obstruction in the “splay” at the Old Bar ALA was an obvious risk of a dangerous recreational activity: at [1] (Meagher JA); [65] (Payne JA); [85] (Emmett AJA).
  2. A reasonable person in the position of the appellant would have known that an obstruction may be erected in the “splay” and that the plane in taking off or landing at the Old Bar ALA might hit that obstruction. The appellant was not entitled to expect that the splay of the airstrip at the Old Bar ALA would be free of any obstructions which could create a risk of collision: at [1] (Meagher JA); [66]-[69] (Payne JA); [85] (Emmett AJA).

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