Blue Op Partner Pty Ltd v De Roma

[2023] NSWCA 161

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Occupiers' liability
4. › Pedestrian injured on public footpath
5. › Trip on uneven surface of utility pit lid
6. › Whether risk of tripping an 'obvious risk'
7. › Characterisation of 'risk of harm'
8. › Level of generality
9. › Civil Liability Act 2002 (NSW), ss 5F, 5H(1)
1. Torts
2. › Negligence
3. › Obvious risk
4. › Characterisation of risk of harm
5. › Whether risk should be characterised at same level of generality for breach of duty and obvious risk analyses
6. › Whether risk should be characterised at level of precise mechanism of injury or at broader level
7. › Civil Liability Act 2002 (NSW), ss 5B, 5F, 5G, 5H, 5L
1. Torts
2. › Negligence
3. › Duty to warn
4. › Whether duty to warn of risk of tripping on uneven footpath surface
5. › Perspective from which obviousness assessed
6. › Whether reasonable person exercising care for own safety
7. › Relationship between obvious risk finding and contributory negligence finding
8. › Civil Liability Act 2002 (NSW), ss 5F, 5H(1), 5R

Quick Take

The risk of harm for obvious risk purposes must be characterised at the same level of generality as for breach of duty, and the obvious risk assessment must be from the perspective of a reasonable person exercising care for their own safety — not from the perspective of the plaintiff as they actually behaved.