Where an occupier applies a product to premises bearing warnings that it may create a hazard (such as reduced slip resistance on sloping surfaces), the occupier's awareness of those warnings is sufficient to establish foreseeability of the risk of harm, even in the absence of any prior accident. The question whether s 5B of the Civil Liability Act 2002 (NSW) applies to positive acts of negligence remains unresolved. Where conflicting expert reports are tendered without cross-examination, a trial judge's rational choice between them will be very difficult to disturb on appeal.
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