In The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50, the New South Wales Court of Appeal examined the operation of the ‘obvious risk’ defence under s 5F of the Civil Liability Act 2002 (NSW) in relation to a routine trip-and-fall incident occurring in a residential carpark.
The proceedings arose after a resident sustained injury when she tripped on a speed hump within an internal carpark area managed by the owners corporation. The speed hump was not painted in a contrasting colour, unlike a number of other marked features in the same carpark. The District Court found the owners corporation liable in negligence, accepting that a combination of lighting conditions and the lack of visual contrast rendered the hazard difficult to identify.
On appeal, the owners corporation challenged liability findings, reliance on the ‘obvious risk’ provisions, causation, contributory negligence, and aspects of the damages assessment. The Court of Appeal accepted there had been an error in the primary judge’s conclusion that lighting was inadequate at the relevant time. However, that finding was not decisive. The central issue remained whether the speed hump constituted an obvious risk assessed objectively in accordance with s 5F. The Court emphasised that the statutory test does not turn on a claimant’s subjective awareness but instead requires consideration of how a reasonable person in the same environment would perceive the hazard. It noted that where certain risks in a shared space are visually highlighted, unmarked features may become less readily apparent.
Ultimately, the Court upheld the finding that the unpainted speed hump did not amount to an obvious risk. It also affirmed that reasonable precautions in the circumstances included simple visual demarcation measures, and that the absence of prior incidents did not preclude a finding of breach. Causation was established on the basis that clearer marking would likely have reduced the risk of injury. While liability was largely upheld, the Court reduced the damages awarded on appeal.