A finding that a step is 'higher than normal' without evidence of the actual height, the range of normal heights, or the extent to which the step exceeds normal is insufficient to establish breach under s 5B(1)(c) of the Civil Liability Act 2002 (NSW). Plaintiffs in slip and fall cases involving steps must adduce evidence (whether lay or expert) sufficient to sustain a finding as to the extent of the additional risk posed by the particular characteristics of the step. Reliance on subsequent remedial measures to establish that precautions should have been taken is impermissible under s 5C(c), even where the court purports to use them only as evidence of the availability of inexpensive measures.
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