A trial judge's factual findings must be internally consistent, and where a finding used to reject a witness's evidence on a critical issue is directly contradicted by a later finding in the same judgment, this constitutes an error in the fact-finding process warranting a new trial. The 'obvious risk' defence under the Civil Liability Act 2002 (NSW) requires the risk to be assessed at the level of specificity at which it materialised, not at the level of the general activity. Statutory defences under the Civil Liability Act that are not pleaded cannot be entertained at trial where objection is taken and no amendment is sought.
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