Watch Your Step: Obvious Risk and Contributory Negligence in Recent NSW Court of Appeal Decisions

Introduction

Two recent decisions of the New South Wales Court of Appeal consider how obvious risk and contributory negligence operate in practice under the Civil Liability Act 2002 (NSW) (the Act). One arose from a fall in a strata car park, the other from a trip on a public footpath. Each turned on close attention to context, expectations and behaviour. Together, the cases offer some practical guidance for owners, occupiers and insurers on when everyday hazards can lead to questions of liability and when responsibility will rest with the person injured.

The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50

The appeal in The Owners – Strata Plan No 31337 v Balacco looked closely at whether an unpainted speed bump in a basement car park constituted an obvious risk for the purposes of Part 1A (Division 4) of the Act. The owners corporation argued that tripping on a speed bump in the car park was an obvious risk as a matter of common experience, such that it attracted the statutory consequences in ss 5F[1], 5G[2] and 5H[3]. The Court of Appeal rejected that characterisation and, in doing so, provided a careful and fact‑sensitive account of how obvious risk operates in controlled, built environments like a car park.

At [41] Justice Leeming advised, “There are three main consequences of a risk of harm being an “obvious risk”: there is the rebuttable presumption of awareness in s 5G, which may be relevant to contributory negligence; there is a qualified displacement of a duty to warn in s 5H; and there is a complete defence where the harm comes about from the materialisation of an obvious risk if there is a dangerous recreational activity in s 5L.”

The Court approached obvious risk as an objective question, consistent with s 5F (1)[4]. The inquiry was directed to whether the risk would have been obvious to a reasonable person in the Plaintiff’s position, not whether the Plaintiff personally appreciated or recalled it. The Court emphasised that obviousness is not determined in the abstract by reference to the generic nature of the hazard. While speed bumps are common features in car parks, the risk was interpreted narrowly as the risk of a pedestrian tripping and falling on this particular unpainted speed bump in this particular car park.

The evidence showed that numerous other hazards and irregularities in the car park were marked with yellow paint, including columns, steps, kerbs and wheel stops. The two speed bumps, however, were not painted at the time of the incident. The Court treated this as part of the contextual environment that a reasonable pedestrian would find themselves in. The selective marking of hazards was important because it conveyed information about what required the pedestrian’s attention and what did not.

Against that background, the Court reasoned that a reasonable pedestrian would naturally have their attention drawn to the painted features, and that this visual guidance where it was not applied, tended to assimilate the unpainted sections (including the speed bumps) into the surrounding concrete surface. That is to say, the unpainted speed bumps were not made prominent in the same way as other irregularities and that diminished their obviousness as tripping hazards. Lighting conditions were also addressed but did not drive the conclusion. Even on the owners corporation’s most favourable factual scenario, assuming the car park lighting was fully operative at the time of the fall, the Court considered that adequate illumination did not render the speed bump an obvious risk. Obviousness was still assessed by reference to contrast, differentiation and expectation, not brightness alone.

The owners corporation also relied on the fact that the Plaintiff had driven over and walked across the speed bump earlier that day. The Court rejected that submission as determinative. It was put, that true it is, the Plaintiff has that morning driven over the speed bump subject of the incident and then walked over the speed bump when leaving her car. It did not make the risk presented by it obvious. The Court held that the issue is an objective one being that it must apply to the first time user, it is also to be considered as one of the myriad of impressions made by a person each day and that a person would have been driving and concentrating on far more important things such as navigating or reversing into a car park (at [47]). In considering those circumstances, the Court was not satisfied that the mere previous interaction with the speed bump was sufficient to make the risk obvious to a reasonable person in the Plaintiff’s position.

Ultimately, Balacco demonstrates that in managed spaces such as strata car parks, where occupiers actively distinguish hazards through colour, signage and surface treatment, obviousness is assessed by reference to how those visual choices affect a person’s perception.

MacLean v Richmond Valley Council [2026] NSWCA 66

In MacLean v Richmond Valley Council, the Court of Appeal upheld the primary judge’s conclusion that the raised lip between concrete slabs on a public footpath was an obvious risk within the meaning of ss 5F and 5G of the Civil Liability Act 2002 (NSW). That conclusion shaped not only the finding on duty and breach but also underpinned the assessment of contributory negligence.

The question for the Court was whether the risk of tripping on the raised lip would have been obvious to a reasonable pedestrian in the Plaintiff’s position. The Plaintiff’s own evidence as to whether she noticed or remembered the lip was not decisive. What mattered was that the height differential, measured at approximately 23 mm, was an everyday irregularity of the kind encountered on public footpaths and one that pedestrians are expected to anticipate and observe when taking reasonable care for their own safety.

A recurring theme in the Court’s reasoning was the distinction between obviousness and visibility in ideal conditions. The Plaintiff claimed that the fall occurred in early morning low light and argued that this undermined any finding of obvious risk. The trial judge had assessed the factual evidence and found that the conditions were not darkness, but partial early morning light. There was no street lighting, but the Plaintiff was able to see ahead along the street. On that footing, the Court accepted that the raised lip was not concealed or rendered indistinguishable by the lighting conditions. If anything, the reduced lighting brought on an expectation of greater vigilance by the Plaintiff.

The Court also rejected the proposition that obvious risk required actual knowledge of the specific hazard. It was sufficient that a reasonable pedestrian would expect the possibility of unevenness along a public footpath. The raised lip was not characterised as a trap or a sudden drop. It was unobstructed and part of the surface itself. The Court repeatedly emphasised that pedestrians are not entitled to expect perfectly even surfaces when walking on public land.

At [25] of the Court of Appeal’s Judgment, it was stated that “his findings of fact led to the conclusion that the raised lip had been present at the measure of approximately, and at least, 15 to 20mm for six years, during which time, at day and night, Ms MacLean had traversed it thousands of times (as he assumed had other footpath users). His Honour said that, photographed at 23mm in daylight just after her fall, it could not sensibly be argued that it was not obvious.”

The obvious risk analysis in MacLean was closely linked to the principles governing the responsibilities of public authorities. The Council’s prior knowledge of the raised lip through an inspection report did not change the determination of the risk to obvious. Nor did internal Council policies identifying the response times for trip hazards. The Court treated those documents as self‑imposed, aspirational guidelines at best, rather than the legal standard of reasonable care. Knowledge of an obvious risk did not oblige the Council to remedy it if reasonable pedestrians could be expected to avoid the obvious risk by taking care.

Applying s 5B[5], the Court accepted that the risk of harm was foreseeable and not insignificant, but regarded the probability of injury as low, particularly given the absence of prior complaints or incidents over several years. Importantly, the Court rejected hindsight reasoning proffered by the Plaintiff. The fact that the lip was ground down quickly after the accident was irrelevant to the prospective assessment of what reasonable care required before the incident.

Because the risk was obvious, the Plaintiff was presumed to be aware of it under s 5G, and there was no duty on the Council to warn under s 5H. More importantly, the Court upheld the finding that the Plaintiff failed to take reasonable care for her own safety.

At [24] it was furthermore put that, paragraph 61 of the Primary Judgment was upheld being “that there was no evidence adduced that showed that Ms MacLean “exercised increased vigilance due to the darkness or low light” and that her evidence was to the contrary. His Honour said that Ms MacLean was not looking at the path. His Honour said that “she was expected by the law to walk with reasonable caution because of the possibility of engaging potential footpath hazards such as the 23mm lip” and noted that Ms MacLean had accepted that “she was aware of the possibility of such a hazard””.

Her evidence that she was looking straight ahead and not at the ground supported an inference of inattentiveness. Actual prior awareness of the specific lip was not required for contributory negligence. The failure lay in not keeping an adequate lookout in circumstances where uneven surfaces were to be expected. The Court also rejected arguments that the primary judge had reversed the onus of proof on contributory negligence. While the defendant bears the onus of establishing contributory negligence, the evidentiary foundation was from the Plaintiff’s own account. In low or partial light, reasonable care required attention to the walking surface and the Plaintiff’s acceptance that she took greater care after the accident created the inference that she had not exercised sufficient care before it.

The assessment of contributory negligence at 50 per cent was upheld and that apportionment reflected the Court’s view that the accident resulted from a combination of an obvious, low‑level hazard and a failure by the pedestrian to attend to it.

Overall, the judgment in MacLean reinforces that unevenness in footpaths will be treated as an obvious risk unless there is something additional that disguises, exaggerates or transforms the hazard. The case is a good reminder of pedestrian responsibility and the limited scope of liability for councils in relation to everyday surface irregularities on public footpaths, even those hazards that councils are proven to have actual knowledge of.

Lessons from the decisions

For owners and occupiers, Balacco and MacLean together show that the assessment of “obvious risk” is specific to the nature of the space being controlled and the signals the defendant creates. In Balacco, the owners corporation lost the protection of obvious risk because it chose a selective hazard‑marking system: by painting columns, steps and other irregularities but leaving speed bumps unmarked, it reshaped what a reasonable pedestrian would treat as hazardous and where their mind should be drawn. MacLean, however, reflects the position that in open public spaces, pedestrians bear responsibility for observing and avoiding irregularities that are not concealed nor highlighted.

Read together, the authorities indicate that inconsistency in hazard identification can be a factor weighing against an obvious risk defence in managed environments, whereas consistent conditions in public spaces may favour such a finding. Owners and occupiers must therefore assess risk by reference to their environment.

Footnotes

[1] Civil Liability Act 2002 (NSW) s 5F.

[2] Ibid s 5G.

[3] n 1 s5H.

[4] n 1 S5F (1).

[5] n 1 s5B.

Contributors

Aimee Topfer, Law Graduate