The decision of The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50 highlights that those seeking to rely on the defence of “obvious risk” must be able to show that the risk would be obvious to a reasonable person. It is determined objectively, the assessment is not made with reference to the injured person.
Facts
The plaintiff tripped on one of two unpainted speed humps in a carpark of a mixed-purpose commercial/residential building located at Bondi Junction when returning to her vehicle at about 5.15pm. Other hazards in the multi-level car park (including wheel stops, concrete kerbs and columns) were painted yellow or otherwise marked. But at the time of her fall [the speed hump was painted after the plaintiff’s incident] the appearance of the speed hump was similar to the surrounding concrete surface.
Primary proceedings
The plaintiff commenced proceedings in the District Court of NSW against The Owners – Strata Plan No 31337 (Owners) as occupier and was successful at first instance with the primary judge accepting that the speed hump was hazardous because it was difficult to detect in the dark carpark and where there was a lack of visual contrast. The primary judge found in favour of the plaintiff.
Appeal
On appeal, and among other grounds, the Owners challenged the primary judge’s finding that the unpainted speed hump did not constitute an obvious risk for the purposes of section 5F of the Civil Liability Act 2002 (NSW) (CLA).
The Court of Appeal emphasised that this is an objective determination. It was therefore irrelevant that the plaintiff had driven over the speed hump before parking (and then reversed over the speed hump when reversing into the parking spot) and walked over the speed hump when leaving the car park earlier that day. Rather, the determination must apply to all users whether they are unfamiliar with the subject area or a regular visitor of the car park because a person cannot be expected to remember hazards (which is why visual cues are used) and a person may be concentrating on other things rather than the hazard.
The Court concluded that the unpainted speed hump was not an obvious risk reasoning that the selective painting of other hazards in the car park made the unpainted speed humps less obvious:
“[T]he painting of all irregularities save for the two speed humps took those speed humps outside the class of obvious risks. Common sense would suggest that a pedestrian’s attention would more readily be drawn to the painted areas; potentially diverting attention from unpainted areas” [46].
It was accepted that a reasonable person would have painted the speed humps yellow and where the risk of tripping on an unmarked hump was foreseeable and the burden of painting the speed humps was minimal, the Court of Appeal found that the primary judge had reached the correct conclusion as to breach.
Whilst the Court accepted the Owners’ submission that the primary judge erred in finding that the lighting in the carpark was inadequate, the challenge to the finding that the plaintiff was not contributory negligent failed. The Court accepted that the plaintiff was walking at a normal pace and there was no evidence that she was distracted or inattentive. Earlier traversal of the speed hump did not establish that she failed to keep a proper lookout for her own safety.
Consistency is key
The omission to paint the speed humps proved fatal for the Owners. Considering the Court of Appeal found that the lighting was adequate, there were no reports of any prior incidents and the speed humps complied with the standards applicable when constructed, but for the context of the painted hazards the outcome may have been very different for the Owners.
This decision therefore reinforces the importance of consistency. Occupiers should adopt uniform visual marking for hazards and not selective highlighting to reduce risk and not create it.
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