Introduction
It is well established that a trip hazard can be dangerous or it can be harmless, depending on the context. For example, a 20mm lip on a quiet, unobscured footpath is very different from the same 20mm lip in a shadowed, high-traffic area in a shopping centre. The perennial challenge faced by organisations is determining which hazards are dangerous and therefore require a response, and which hazards are harmless and do not require a response. Unfortunately for those organisations, there is no definitive height difference below which liability can be avoided with certainty.
Many organisations attempt to deal with this by implementing policies and procedures categorising hazards and specifying the response to be taken for each category of hazard. But what if the policies and procedures go beyond what the courts in the past have determined reasonableness requires? Do these create an elevated duty of care? For example, if an incident occurs which would have been avoided had a company followed its own risk management protocols, would this result in an automatic breach of duty? In the recent decision of MacLean v Richmond Valley Council,1 the New South Wales Court of Appeal answered this question with an emphatic, ‘No’.
What happened in MacLean v Richmond Valley Council?
Ms MacLean tripped on a 23mm ‘raised lip’ between two sections of concrete footpath in Casino, New South Wales, while returning from her regular early morning walk. The height differential had existed for years, and Richmond Valley Council knew about it: a ‘Footpath Trip Hazard Inspection Report 2017’ (the inspection report) recorded that an inspection of the area where Ms MacLean fell had identified the defect. The trip size was recorded as being ‘>=15mm and < 20mm’ and was rated as ‘medium-priority’, with the action required being to grind the concrete down.
At the same time, the Council had an internal document, ‘Operational Policy for Council Inspection, Assessment and Maintenance of Footpaths and Cycleways’ (the Policy) which set out response timeframes based on priority rating. For a medium-priority hazard, the Policy called for the defect to be remedied within three months. Despite this, no action had been taken in respect of the subject trip hazard in the six years prior to Ms MacLean’s fall, which, by then, had grown to 23mm.
How did the District Court rule at first instance?
At first instance, the District Court dismissed Ms MacLean’s claim, finding that the Council did not owe the duty of care alleged because Ms MacLean had failed to exercise reasonable care for her own safety, and, in any event, the Council had not breached any duty owed.
In arriving at his decision, the trial judge concluded that the height differential presented by the lip, which was unobscured from view, was an obvious risk because it was a matter of common knowledge of such a hazard when traversing a footpath. The fact there had been no prior complaints about the raised lip further persuaded His Honour that the Council did not breach its duty of care. The primary judge also made contingent findings as to contributory negligence (50%).
The Court of Appeal's response: a policy is not a duty
On appeal, the Court accepted the trial judge had fallen into error by finding that no duty of care was owed, observing His Honour had, in effect, conflated the finding on duty of care with the finding on contributory negligence. The Court, following well established principles, reiterated that the relevant duty was to take reasonable care against a foreseeable risk of harm without that duty being conditioned on whether the person in question was exercising reasonable care for his or her own safety. However, nothing turned on this as the Court agreed there had been no breach of the duty owed.
Ms MacLean argued that the combination of the inspection report (establishing the Council’s knowledge) and the Policy (establishing the Council’s own view of what an appropriate response looked like) was, in effect, determinative of breach. In other words, she argued that if the Council itself had decided that a medium-priority hazard warranted action within three months, its failure to meet that self-set benchmark for nearly six amounted to a failure to take reasonable care. Ms MacLean further argued that it was not for the Court to second-guess the reasonableness of the Council’s assessment of the risk, and pointed to the fact that no evidence was called by the Council as to the meaning of the Policy or that it had been mistaken as to the resources available to it when the Policy was formulated.
The Court rejected this argument. It held that the Policy’s own stated objective, being ‘to reduce the risk of injury and to reduce the Council’s exposure to the possibility of a claim’, suggested the Policy had a ‘prophylactic function’ of minimising claims against the Council. Ward P went on to say:2
The Policy is in my opinion able to be accurately described as a “self-imposed” guideline. It does not determine what the legal standard of reasonable care is in relation to any particular trip hazard (whether or not one that is accorded a medium priority). The suggestion that the Court is somehow precluded from reaching a determination as to what the legal standard of reasonable care requires, because to do so would be to “second-guess” the Council’s Policy, cannot be accepted. …
In assessing what reasonableness required, the Court found instructive what was said in Ghantous3 as to the expectation that persons will exercise sufficient care to look where they are going and avoid obvious hazards.4 The Court considered that in the present case, the raised lip, which it described as a ‘relatively minor (23mm) height differential in the footpath’, was a hazard of the sort that pedestrians should expect when walking along public footpaths, and the fact the footpath could be ground down without delay says nothing about whether this was a necessary or reasonable precaution.5
In essentially applying the Shirt calculus, the Court balanced the risk of harm, which it found was not insignificant but had a low probability of occurring (based on the lack of other complaints or incidents over the six year period) against the burden of taking precautions (by grinding down the height differential at no great expense) and ultimately concluded there was no failure on the part of the Council to take reasonable care.6
What role did the statutory defences play?
Because the Court found there was no breach of duty based on ordinary negligence principles, it was not necessary for the Court to make a determination in relation the application of the statutory defences on which the Council also sought to rely. This is important as it makes this decision relevant to defendants who do not have statutory powers.
Why does this principle matter for negligence law?
The Court’s reasoning reflects a broader and well-established theme in negligence law: that industry standards, professional guidelines, and internal policies are relevant evidence of what reasonable care might require, but they are not a substitute for the Court’s own independent assessment based on well-established principles concerning the legal standard of reasonable care.
The well-known High Court decision in Strong v Woolworths7 is an example of this. In that decision, which concerned a slip and fall incident in a shopping centre, the New South Wales Court of Appeal considered that reasonable care required periodic inspection and cleaning of the sidewalk area at 15-minute intervals, which reflected the contractual cleaning schedule between Woolworths and its cleaning contractor. However, the High Court disagreed. The High Court found that reasonable care required inspection and cleaning intervals of not greater than 20 minutes, notwithstanding that the cleaning schedule provided for 15-minute intervals.
The practical logic is straightforward. If an internal policy was treated as automatically fixing the legal standard of care, defendants would face a perverse incentive: any organisation that adopted a genuinely careful, conservative risk-management policy would effectively be raising the legal bar against itself, while a defendant with no policy, or a deliberately lax one, would face a lower standard by default. Courts have consistently declined to create that incentive. A defendant who acts more cautiously than the law strictly requires should not, for that reason alone, be held to a higher legal standard than a defendant who does not.
This does not mean internal policies are irrelevant. They may still be admissible, and sometimes persuasive, evidence of what a reasonable defendant in the relevant position would do, particularly where a policy reflects genuine industry practice rather than a purely internal, self-imposed benchmark. The main point though is a failure to follow an internal policy will not automatically be determinative of a breach of duty.
What does this mean for defendants and their insurers?
For defendants and their insurers: having a documented policy that goes beyond the legal minimum is not, in itself, a liability risk. Courts will assess breach by reference to the objective standard of reasonable care, not by measuring the defendant against its own aspirational internal benchmarks. This should be reassuring for organisations, particularly public authorities managing large asset networks with finite resources, that might otherwise be tempted to avoid adopting rigorous risk-management frameworks for fear of manufacturing their own liability.
For those drafting policies and procedures: it remains good practice to record the purpose of a policy clearly, including where it is intended to reduce risk beyond the legal minimum rather than to define that minimum. As MacLean illustrates, courts are willing to look at the stated objectives of a policy document as part of assessing what weight, if any, it should carry in the negligence analysis.
For insurers and underwriters: this decision supports a straightforward message to insureds, particularly councils, property managers, facility operators, and other organisations managing public-facing assets, that investing in a thorough risk management policy is not a liability trap. At renewal, understanding whether an insured has a documented inspection and maintenance regime, and whether that regime is consistently applied, remains relevant to risk assessment. The absence of any policy is a far greater concern than the existence of a well-intentioned one. If you have any questions about how this decision applies to a specific risk or policy, contact our team.
1 [2026] NSWCA 66.
2 [101].
3 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29
4 [104].
5 [105]
6 [106].
7 1. Strong v Woolworths Limited [2012] HCA 5
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
FAQs
Find quick answers to common questions about this topic.
Does an internal risk management policy determine the legal standard of care?
No. The NSW Court of Appeal confirmed in MacLean v Richmond Valley Council that an internal policy, even one that was not followed, does not automatically determine the legal standard of reasonable care. Courts will conduct their own independent assessment of what reasonableness required in the circumstances.
Can a plaintiff use an organisation’s own policy to prove breach of duty?
Not automatically. While an internal policy may be admissible as evidence of what a reasonable organisation in that position would do, it is not determinative. In MacLean, the Court considered the Council’s inspection policy but concluded it reflected a self-imposed guideline with a “prophylactic function” of minimising claims, not a definition of the legal standard of care.
What is the Shirt calculus in negligence law?
The Shirt calculus is the risk-balancing exercise used by Australian courts to assess whether a defendant took reasonable precautions. It involves weighing up the probability of the harm occurring and the seriousness of potential harm against the burden (expense, difficulty and inconvenience) of taking precautions. In MacLean, the Court applied this analysis and found that while the risk was not insignificant, its low probability based on the absence of any prior complaints over six years, meant the Council had not failed to take reasonable care.
Does this decision apply to private defendants as well as public authorities?
Yes. Because the Court resolved the case on ordinary negligence principles, without needing to rely on the statutory defences available to the Council, the principle applies equally to defendants that do not have statutory powers. This makes the decision broadly relevant to private organisations including property managers, shopping centres, and facility operators.
If an organisation does not follow its own policy, does it automatically lose a negligence claim?
No. The decision in MacLean confirms that a failure to follow an internal policy will not automatically constitute a breach of duty of care. The court will still apply the ordinary principles of negligence. However, the policy may still be considered as part of the overall evidence.
What is the practical implication for organisations with risk management frameworks?
Organisations should not avoid adopting rigorous risk management policies for fear that doing so raises their legal liability. Courts assess breach against an objective standard, not against an organisation’s own internal benchmarks. It remains good practice to clearly record the purpose of any policy, including where it is designed to reduce risk beyond the legal minimum rather than to define that minimum.
