When obviousness is assessed
in Obvious Risk
This site consists of case excerpts, journal articles and reference sources which have been of relevance to me over my practice as a barrister
-
Tapp 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
-
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”…
-
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…
-
Precision in identifying the risk of harm
Character of injury & sequence of events in Rosenberg v Percival (140), Gummow J said: “A risk is real and foreseeable if it is not far-fetched or fanciful, even if it is extremely unlikely to occur. The precise and particular…
-
De Martin & Gasparini Pty Ltd v Bartlett
in Fact FindingHowever, I would not accept DMG’s submission that it is “completely speculative” as to who the “other worker” was. This submission was to the effect that since the evidence established that all 13 people on the site were capable of…
-
Duty to prevent criminal conduct: non-delegable duty
in Duty of CareTrustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 There is no non-delegable duty to ensure that a delegate does not commit an intentional criminal act: at [17] (Bell CJ); [156]-[168] (Leeming JA);…
-
Browne v Dunn: the rule and its limits
in EvidenceLocke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166 The fundamental concern of the rule in Browne v Dunn is to avoid unfairness to the witness and the party…
-
Assessing the evidence of a party defending its own conduct
in Fact FindingStanberg v State of New South Wales [2025] NSWCA 127 He also contends that the teachers’ evidence falls to be assessed in circumstances where they were defending the propriety of their own conduct (citing Nominal Defendant v Cordin [2017] NSWCA…
-
Karzi v Toll Pty Ltd
Karzi v Toll Pty Ltd [2024] NSWCA 120 [2024] NSWCA 120 Section 326 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is not conclusive evidence that a psychiatric injury in respect of which a Workers Compensation Commission…
-
Willmot v State of Queensland: the fallibility of memory
Willmot v The State of Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30] [C]ourts are mindful that ordinary human experience exposes that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases…