Australian Playground Negligence Dispute: How is Liability Determined for an Occupier’s Failure to Maintain Safe Surfaces and Warn of Hidden Hazards?

Introduction
Based on the authentic Australian judicial case Salman v Hornsby Shire Council (No.2) [2023] NSWDC 527, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information:

Court of Hearing: District Court of New South Wales
Presiding Judge: Abadee DCJ
Cause of Action: Torts – negligence – occupiers’ liability
Judgment Date: 29 November 2023
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Occupiers Liability
Keyword 3: Playground Safety
Keyword 4: Negligence
Keyword 5: Contributory Negligence
Keyword 6: Personal Injury Damages

Background:

This case involved a plaintiff, Ms Salman, who suffered significant personal injuries after falling in a children’s playground managed and maintained by the defendant, Hornsby Shire Council. The incident occurred in Lessing Park on 28 February 2021 when Ms Salman was walking towards a swing to push her nephew. She placed her foot on the edge of an artificial, spongy surface where it met a mulch or bark area, lost her footing, and fell forward, sustaining fractures to her right ankle and leg, among other injuries. Ms Salman alleged that the Council was negligent in its management and maintenance of the playground, leading to an unsafe surface condition.

Core Disputes and Claims:

The central legal focus of the dispute revolved around whether the Council, as the occupier, owed Ms Salman a duty of care, and if so, what its scope was. Key questions included whether the Council breached this duty by failing to take reasonable precautions against foreseeable and not insignificant risks of harm, whether any such breach caused Ms Salman’s injuries, and whether the risk of harm was ‘obvious’ thereby exempting the Council from a duty to warn. The Council denied liability, asserting it owed no duty of care, or if it did, that it had not breached it, or alternatively, that the risk was obvious and Ms Salman was contributorily negligent. Ms Salman claimed damages for out-of-pocket expenses, domestic assistance, loss of income, future earning capacity, and non-economic loss.

Chapter 2: Origin of the Case

The sequence of events leading to Ms Salman’s litigation began on a seemingly ordinary family outing to Lessing Park. Ms Salman, aged 32 at the time, was visiting the park for the first time with family for a barbecue. While walking with a cousin, her attention turned to her nephew, who was playing on a swing in the playground area. Driven by a desire to push her nephew, she decided to approach the swings. The playground featured two distinct surfaces: a softer, artificial ‘spongy’ rubber surface around the equipment, and an adjacent area covered with mulch or bark.

As Ms Salman made her way towards the swing, her path took her from the mulch-covered area to the edge of the spongy surface. She testified that she stepped onto this spongy surface, but as she did so, her right ankle rolled outwards. In an instinctive attempt to regain her balance, she placed her left foot down, only for that ankle to roll as well, causing her to lose balance completely and fall face-first onto the bark. This incident occurred around 2 PM. It was only after she had fallen and looked back that she noticed what she described as a “big dip” in the rubbery surface, implying an uneven transition between the two surfaces. She had assumed the surface would be level and had been focused on her nephew, rather than the ground immediately beneath her feet. This fall resulted in severe injuries, marking the decisive moment that led to her seeking legal redress against Hornsby Shire Council, the entity responsible for the park’s maintenance.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments:

Ms Salman’s case hinged on her own credible testimonial evidence, describing the mechanism of her fall and her lack of prior awareness regarding the height differential between the mulch and spongy surfaces. She maintained that she did not trip, but rather rolled her ankle due to the uneven transition, a detail crucial for distinguishing her case from a simple tripping hazard.

Crucially, Ms Salman relied on the expert opinion of Mr Denis Cauduro, an expert in playground safety. Mr Cauduro’s report asserted that the soft fall/bark chip area was unsafe and not maintained in accordance with Australian Standards (specifically AS/NZS 4486:1:1997 and AS 4685.0:2017). He identified a significant risk of injurious falls and proposed reasonable preventative measures, including regular inspections, topping up the bark chips to ensure they were level with the soft fall area, and potentially barricading unsafe areas or displaying warnings.

Documentary evidence played a vital role, particularly two “Comprehensive Inspection Reports” from Playfix Pty Ltd, dated 10 July 2020 and 18 November 2020. Both reports explicitly stated, under the heading ‘Undersurface’, that “The undersurface material needs to be built to the level of the wet pour rubber to eliminate any trip points created by the low level of the undersurfacing material.” This provided direct evidence that the Council had actual or constructive knowledge of the hazard prior to Ms Salman’s accident. Further, Ms Salman presented photographs (Exhibit A1) showing the area where she fell, which she contended illustrated the obscured height differential. Evidence of other playgrounds within the municipality having a single, consistent surface also supported the argument for safer design alternatives.

Respondent’s Main Evidence and Arguments:

The Council vigorously disputed liability, arguing that it did not owe a duty of care, or if it did, its scope was limited, and no breach occurred. A core pillar of their defence was the assertion that the risk of harm was ‘obvious’. They contended that the difference in texture and colour between the mulch and spongy surfaces was self-evident, and a pedestrian taking reasonable care would have noticed any height differential. The Council relied on Ms Salman’s admission under cross-examination that she was focused on her nephew rather than the ground, suggesting her inattention was the cause.

The Council also argued that Mr Cauduro’s expert opinions were flawed, specifically because he had based some assumptions on the plaintiff “tripping”, which Ms Salman herself disavowed. They claimed that their maintenance records, although not explicitly detailing mulch replenishment, demonstrated regular park inspections. They sought to downplay the significance of the Playfix reports, arguing that “tripping” hazards were distinct from Ms Salman’s “rolling” ankle incident and thus irrelevant. Furthermore, the Council highlighted the absence of other reported falls in the area, suggesting the risk was not significant enough to warrant additional precautions.

Core Dispute Points:

1. Obviousness of Risk: Was the height differential between the two surfaces ‘obvious’ to a reasonable person in Ms Salman’s position, especially given the context of a children’s playground and her focus on a child?
2. Scope of Duty and Breach: What reasonable precautions, if any, should the Council have taken, and did its failure to take these precautions constitute a breach of its duty of care? This included the adequacy of inspections, maintenance (specifically mulch replenishment), and warnings.
3. Causation: Would Ms Salman’s injuries have been avoided “but for” the Council’s alleged negligence?
4. Contributory Negligence: To what extent did Ms Salman’s own inattention contribute to her fall and injuries?
5. Interpretation of Expert Reports: The relevance and weight of Mr Cauduro’s report and the Playfix reports, particularly concerning the distinction between “tripping” and “rolling” incidents, and the interpretation of “trip points”.

Chapter 4: Statements in Affidavits

In civil litigation such as this negligence claim, affidavits serve as the primary means by which parties present their factual evidence in written form before a hearing. For Ms Salman, her affidavit would have meticulously detailed her account of the accident, her pre-existing health and employment history, the immediate and subsequent impact of her injuries on her daily life, her medical treatment, and the assistance she required. She would have provided her perspective on the park’s condition, her movements, and her lack of awareness of the hazard. The strategic intent behind her affidavit would have been to establish the elements of negligence: that a duty was owed, that there was a breach of that duty by the Council, that this breach caused her injury, and the extent of her resulting damages.

The Council, in its affidavits, would have presented evidence countering these claims. This might include details of their standard inspection and maintenance procedures, the qualifications and practices of their staff, and any records pertaining to the park’s upkeep. Their affidavits would have aimed to demonstrate that they met their duty of care, that the hazard was obvious (thereby shifting responsibility to Ms Salman), or that their actions were not causally linked to her fall. The strategic intent here would be to minimise or negate liability by showcasing their adherence to reasonable standards and highlighting Ms Salman’s alleged contributory negligence.

The Judge’s procedural directions regarding affidavits would typically aim to streamline the hearing, ensuring all factual contentions and supporting evidence are clearly articulated in advance. This includes requirements for clarity, specificity, and adherence to rules of evidence, allowing for proper preparation by both parties and the identification of true factual disputes, preventing “trial by ambush.” For experts such as Mr Cauduro and Ms Bevan (occupational therapist), their reports would often be annexed to affidavits of the instructing solicitors, confirming their reliance on specific instructions and documents. The strict enforcement of affidavit requirements ensures that the Court can conduct an efficient and fair assessment of the evidence by focusing the oral hearing on cross-examination of deponents on contentious points.

Chapter 5: Court Orders

Prior to the final hearing, the Court would have issued a series of procedural arrangements and directions to manage the progression of the case. While the judgment primarily details the final orders, common interim orders in such a civil matter would have included:

• Directions for Pleadings: Orders setting timelines for the filing of the Statement of Claim, Defence, and Reply, ensuring the legal issues were clearly defined.
• Discovery and Inspection: Orders mandating the exchange of relevant documents between the parties, allowing them to inspect evidence held by the other side. This would have included the Council’s maintenance records and internal communications, as well as Ms Salman’s medical records.
• Expert Evidence Directions: Orders regarding the engagement, exchange, and conclave of expert witnesses (e.g., orthopaedic surgeons, occupational therapists, engineering experts). The judgment explicitly refers to the orthopaedic surgeons’ joint report and the occupational therapists’ concurrent evidence, indicating that orders for a conclave (joint meeting) and joint report would have been made.
• Subpoenas: Directions for the issuance of subpoenas to third parties, such as Ms Salman’s former employer, to obtain further relevant documents.
• Mediation or Alternative Dispute Resolution: Orders for the parties to attend mediation or other forms of ADR to attempt to resolve the dispute without a full trial.
• List of Issues (MFI): The judgment notes that “The parties’ both prepared schedules of issues (MFI 1 and 3) which were materially similar,” indicating a prior order for the parties to confer and identify the specific factual and legal issues to be determined by the Court, thereby refining the scope of the trial.
• Timetabling Orders: General orders setting deadlines for all pre-trial steps, including the filing of witness statements, expert reports, and the scheduling of the hearing itself.

These orders are crucial for ensuring the efficient and just conduct of litigation, helping to narrow the issues in dispute and prepare the case for a comprehensive hearing.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing unfolded as a rigorous examination of the factual circumstances of Ms Salman’s fall and the Council’s responsibilities. Ms Salman provided her testimonial evidence, detailing her approach to the swing, her focus on her nephew, her assumption of a level surface, and the mechanism of her ankle rolling outwards upon stepping onto the wet pour surface. She was cross-examined on the photographs and her attentiveness, making concessions against her interest, such as acknowledging she was not looking at her feet at the exact moment of placing her right foot. The Court found her to be a credible and honest witness, accepting her account of the accident, which was crucial to establishing the factual basis of the negligence claim.

The expert evidence was pivotal. Mr Denis Cauduro, the plaintiff’s expert, testified regarding Australian Standards for playground surfaces and the need for regular maintenance to ensure evenness between different surface types. He highlighted the Playfix inspection reports which unequivocally warned the Council about the undersurface needing to be built up. The Council’s cross-examination of Mr Cauduro attempted to diminish his opinion by suggesting his assumptions were based on Ms Salman “tripping” rather than “rolling” her ankle. However, the Court rejected this narrow interpretation, recognising that the underlying hazard of unevenness was relevant regardless of the precise biomechanics of the fall.

The core evidence confrontation centred on the photographic evidence and the Playfix reports. The photographs, particularly Exhibit A1, were used by Ms Salman to demonstrate that the height differential was not “manifestly discernible” from a reasonable person’s perspective, especially when obscured by displaced mulch. The Council argued that the photos, particularly one indicating a phone at an angle, showed an obvious height differential. The Court carefully weighed these visual cues against Ms Salman’s testimony of her pre-fall awareness.

The judicial reasoning became apparent as the Judge meticulously assessed the evidence. His Honour found Ms Salman to be a credible witness, accepting her account of the fall and her retrospective realisation of the dip. He also critically assessed the Council’s defence regarding “obvious risk” and the relevance of the Playfix reports. The Court adopted a contextual approach to the duty of care in a children’s playground, acknowledging that users might be distracted.

The Court held that:

“I found that Ms Salman was a creditable witness. Moreover, it was not suggested that her evidence was unreliable in any material way. Counsel for the Council accepted that she was honest.”

This finding established a strong foundation for Ms Salman’s version of events. In addressing the Council’s attempt to compartmentalise the expert opinions based on the “tripping” versus “rolling” distinction, the Court stated:

“I do not agree with the Council’s submission. For one thing, there is no objective indication that when Playfix reported on their inspections, and specifically noted the problems with undersurfacing, they were doing so through the narrow prism of alerting Council only to a mere ‘tripping’ hazard.”

This judicial statement was determinative in broadening the applicability of the Playfix warnings, preventing the Council from narrowly interpreting the “trip hazard” to exclude Ms Salman’s specific fall mechanism. It underscored the Court’s view that the hazard was the uneven surface itself, irrespective of how a person might lose their balance.

Chapter 7: Final Judgment of the Court

The Court ultimately found in favour of the plaintiff, Ms Kathie Beatrice Salman, against the defendant, Hornsby Shire Council.

The orders of the Court were:
1. Judgment for the plaintiff for the sum of $283,200.
2. The defendant is to pay the plaintiff’s costs, as agreed or as assessed.
3. If either party wish to apply to vary order 2, it is to do so by filing a notice of motion with supporting affidavit within 14 days of these reasons.

The Court determined that the Council was negligent and that its negligence factually caused Ms Salman’s injuries. However, Ms Salman was also found to be contributorily negligent, leading to a 15% reduction in the total damages awarded.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis:

This case offers significant jurisprudential value in its application of occupiers’ liability principles under the Civil Liability Act 2002 (NSW) to public playgrounds. It specifically clarifies the interpretation of “obvious risk” (s 5F) and the scope of a duty of care (s 5B) in contexts where users may reasonably be distracted or inattentive. The Court’s finding that the risk was not obvious, despite Ms Salman’s admitted inattention, sets a crucial precedent for public recreational spaces, emphasising that inherent design or maintenance flaws that are not readily discernible still require attention from occupiers. The Judge’s distinction of the Bruce v Apex Software Pty Ltd case highlights that fixed, easily visible differentials differ from variable, potentially obscured hazards. The case reinforces that an occupier’s duty extends beyond simply guarding against perfectly attentive users, incorporating an allowance for normal human inadvertence, particularly in environments designed for children and their carers.

Judgment Points:

1. Rejection of Narrow Hazard Interpretation: The Court rejected the Council’s attempt to narrowly interpret the “trip hazard” warnings in the Playfix reports. His Honour determined that the warnings about uneven undersurfacing were broad enough to encompass various mechanisms of falling, including Ms Salman’s ankle rolling due rather than a direct trip.
2. Contextual Duty of Care: The judgment established that in a children’s playground, an occupier’s duty of care must account for the reasonable possibility of users being distracted, such as by a child on equipment. This context makes an “obvious risk” harder to prove.
3. Council’s Knowledge of Non-Compliance: The repeated warnings in the Playfix reports (July and November 2020) were critical in establishing that the Council had actual notice of the inadequate undersurface material and its need for replenishment, yet failed to act, directly contravening Australian Standards.
4. Inadequacy of General Maintenance Records: The Court found the Council’s general maintenance logs insufficient to demonstrate specific attention to, or rectification of, the identified height differential or replenishment of mulch as required by standards and their own inspection reports.
5. Relevance of Absence of Prior Complaints: While acknowledging the absence of prior reported falls, the Court deemed this factor of lesser significance due to the relatively recent upgrade of the playground. This indicates that a lack of incident history does not automatically absolve an occupier, especially for newer constructions where hazards may not yet have fully manifested or been widely experienced.

Legal Basis:

The Court primarily referred to the Civil Liability Act 2002 (NSW) for the elements of negligence:
* Section 5B(1)(a)-(b) & (c) (Breach of Duty): The Court determined that the risk of harm (a person falling and sustaining injury when traversing between the mulch and artificial surfaces due to unevenness) was both foreseeable and not insignificant. It also found that a reasonable person in the Council’s position would have taken precautions.
* Sections 5F(1)-(4), 5G(1), 5H (Obvious Risk): The Court rejected the Council’s defence that the risk was obvious, finding that the height differential was not readily discernible and was likely obscured by mulch, especially from the plaintiff’s perspective.
* Section 5D(1)(a)-(b) (Causation): The Court found factual causation was established, concluding that “but for” the Council’s negligence (failure to replenish mulch or paint the slope), Ms Salman would not have fallen. The scope of liability was also satisfied.
* Sections 5R(1) & 5S (Contributory Negligence): The Court applied the same standard of care to Ms Salman, finding her contributorily negligent for failing to keep a proper lookout, particularly given she was traversing different surfaces in an unfamiliar park.
* Section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW): Used for the apportionment of liability, resulting in a 15% reduction for contributory negligence.

Evidence Chain:

The successful chain of evidence for the plaintiff was robust:
1. Credible Lay Testimony: Ms Salman’s consistent and candid account of her fall, including her initial inattention and subsequent observation of the “dip,” was accepted by the Court.
2. Expert Validation of Hazard: Mr Cauduro’s expert evidence grounded the unsafe condition in established Australian Standards for playground safety, indicating that the surface was not properly maintained.
3. Critical Documentary Evidence (Actual Knowledge): The Playfix Comprehensive Inspection Reports provided undeniable proof that the Council was on actual notice of the problem concerning the “undersurface material needs to be built up to the level of the wet pour rubber” to eliminate “trip points.” The Council’s failure to act on these specific warnings was a crucial omission.
4. Photographic Corroboration: Photographs of the site, despite being taken post-accident, supported the existence of a height differential and the possibility of it being obscured by mulch, thereby corroborating Ms Salman’s account and Mr Cauduro’s assessment.

Judicial Original Quotation:

The Court held, addressing the Council’s premise of user attentiveness:

“Whilst I accept that the Council could proceed on a premise that entrants like Ms Salman will take reasonable steps for her own safety, I interpret that as an entitlement to use that as a generally workable hypothesis. It did not absolve it of a duty. This was a children’s playground area: an area of fun (especially for the children) and perhaps an area for delight (especially for carers of children or even on-lookers). The expectation of entrants taking reasonable care for their safety had to be viewed in that context. It was not the case of her walking across mulch to an artificial wet pour surface in the general park but in the more specific context of a playground. I accept Ms Salman’s contention that on the day in question, although there was a height differential between the spongy surface and the mulch – something she said she was unaware about at the relevant time – it was not readily discernible. I also find if, in retrospect, she should have looked down at a point when she was crossing one surface to another, and discovered that there was a height differential, this does not disqualify her from a finding that the Council owed her a duty of care. The duty can extend not only to persons looking where they were going, but those who might be distracted or inattentive. In this case, Ms Salman was not going to the swing simply for the sake of it, but was going there to accompany a child (her nephew) on the swing. Her focus was on that child and, in that sense, she was distracted or inattentive. As I say, that did not disentitle her from receiving from an effective occupier of land the exercise of reasonable care.”

This statement was determinative because it directly challenged the Council’s assumption that users would always maintain perfect vigilance in a playground setting. It confirmed that the occupier’s duty of care is broader than merely protecting the hyper-attentive, explicitly including those who might be momentarily distracted by the purpose of their visit—a child. It also solidified the finding that the hazard was not readily discernible to the plaintiff at the time of the fall, undermining the obvious risk defence.

The Court further stated on the Council’s obligations:

“As indicated the A/NZ Standard clearly indicated an intention that there should be an evenness between the mulch surface and the wet pour surface and that this was to be accomplished by periodical maintenance and proactive steps to achieve that levelling. I place weight upon Mr Cauduro’s opinion that the surface in the children’s playground should be level.”

This excerpt was crucial in establishing the expected standard of care and maintenance. By linking the Australian/New Zealand Standards to the intention of achieving an “evenness” and requiring “periodical maintenance and proactive steps,” the Court provided a clear benchmark against which the Council’s actions were measured and found wanting. Mr Cauduro’s expert opinion on the need for a level surface, endorsed by the Court, directly informed the finding of breach.

Regarding causation, the Court explained the “but for” link between the identified precautions and the prevention of injury:

“As to the first of my findings of a failure to take reasonable precautions, had the Council taken the precautions of inspecting and thereafter replenishing the mulch so as so as to at least cover the sloped part of the wet pour, I find that it is likely that Ms Salman would not have lost her balance. That is so because of the effective levelling out of the two different surfaces. She would not have stepped on the sloped part of the wet pour surface area. Instead, she would have stepped on to the mulch (the surface she had hitherto been walking on) or on to the top of the wet pour surface area which (if the precautions had been taken) was not sloped but which was level with the mulch.”

And concerning the alternative precaution of a warning:

“As to the second of my findings, a differently painted surface on the slope of the wet pour would prominently have brought to the attention of an entrant to the playground the risk. Put another way, it would have made the risk of falling after contact with the slope of the wet pour obvious. A reasonable person exercising care for their safety would likely have noticed the slope on the wet pour. I consider that it is more probable than not that on the day of the accident, a stark difference in colour between the sloped part of the wet pour and the balance of the wet pour would have illuminated the slope on the wet pour and disabused Ms Salman of her assumption that there was an evenness in surface between the wet pour and the mulch.”

These passages were determinative in establishing factual causation. The Court clearly articulated how the implementation of either of the two reasonable precautions—replenishing mulch to cover the slope or distinctively painting the slope—would have likely prevented Ms Salman’s fall, thereby satisfying the “but for” test under the Civil Liability Act 2002 (NSW).

Analysis of the Losing Party’s Failure:

The Hornsby Shire Council’s failure stemmed from several critical missteps and omissions:
1. Ignoring Direct Warnings: The Council had actual notice via the Playfix reports that the undersurface material needed to be built up to eliminate trip points. Its failure to implement this specific recommendation directly contradicted its duty to maintain a safe environment.
2. Inadequate Maintenance: Despite having general maintenance logs, the Council failed to demonstrate any specific system for regular inspection, raking, or replenishment of the mulch to address the height differential. The Court found a lack of “serious attention, or advertence” to the problem identified in its own inspection reports.
3. Mischaracterisation of Risk: The Council’s attempt to narrowly define “trip hazard” to exclude Ms Salman’s “rolling” injury was rejected. The Court adopted a broader view of the underlying hazard—the uneven surface—which could manifest in various types of falls.
4. Flawed “Obvious Risk” Defence: The Council failed to establish that the risk was obvious from the perspective of a reasonable person in the plaintiff’s position, especially given the context of a playground where distraction is common and the hazard was obscured. The absence of a “bright-line” demarcation and the presence of mulch on the wet pour surface contributed to this finding.
5. Underestimation of Precautionary Burden: The Council did not provide evidence to suggest that the suggested precautions (mulch replenishment, painting the slope) were prohibitively expensive or disproportionate to the risk of serious injury, thereby failing to counter Ms Salman’s arguments regarding the ease and low burden of implementing these measures.

Reference to Comparable Authorities:

• Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479: The High Court established that an occupier of land owes a duty of care to entrants to ensure the premises are reasonably safe for their use, setting the foundational principle for occupiers’ liability.
• Brodie v Singleton; Ghantous v Hawkesbury City Council (2001) 206 CLR 512: These High Court decisions explored the duty of care for public authorities regarding roads and footpaths, and the extent to which allowances should be made for inadvertence or inattention by pedestrians.
• Strong v Woolworths Ltd (2012) 246 CLR 182: This High Court case is a key authority on causation under the Civil Liability Act, particularly regarding the “but for” test and demonstrating that an occupier’s negligence caused the harm.
• Port Macquarie Hastings Council v Mooney [2014] NSWCA 156: A NSW Court of Appeal case affirming principles of factual causation under the Civil Liability Act.
• Schultz v McCormack [2015] NSWCA 330: This NSW Court of Appeal decision affirmed the conceptual ordering of negligence issues, including considering obvious risk after the risk of harm is identified but before breach.
• Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103: A NSW Court of Appeal case discussing the ‘obviousness’ of risk from the plaintiff’s perspective prior to the incident occurring.
• Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454: A High Court decision providing guidance on characterising risk for the purposes of obvious risk provisions in civil liability legislation.
• Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161: A recent NSW Court of Appeal case reiterating the approach to obvious risk, looking at the plaintiff’s perspective and opportunity to avoid the risk.
• Venues NSW v Kane [2023] NSWCA 192: A recent NSW Court of Appeal case, also cited in this judgment, where the absence of prior falls was a factor in finding no breach of duty, which the present judgment distinguished due to the recency of the playground’s construction.

Implications

1. Occupiers Must Be Proactive: This case underscores that occupiers of public spaces, especially children’s playgrounds, must go beyond merely reacting to incidents. Proactive and diligent maintenance, including adhering to industry standards and acting on internal inspection warnings, is paramount.
2. “Obvious Risk” Has Limits: The defence of “obvious risk” is not a blanket shield for occupiers. Hazards that are obscured, variable, or occur in contexts where reasonable distraction is expected (like a playground) may still give rise to a duty to warn or rectify.
3. Credibility is King: The plaintiff’s honest and credible testimony was vital to the Court’s findings of fact, especially regarding her awareness and the mechanism of her fall. Parties must present their narrative clearly and consistently.
4. Expert Evidence Shapes Outcomes: Qualified expert opinions on safety standards and reasonable precautions, particularly when corroborated by an occupier’s own internal reports, can be decisive in establishing breach of duty.
5. Personal Responsibility Still Matters: While occupiers have duties, individuals are still expected to take some care for their own safety. Ms Salman’s contributory negligence highlights that even if a hazard is not “obvious,” a failure to observe one’s surroundings can lead to a reduction in damages.

Q&A Session

Q1: What specific measures could the Council have taken to prevent this accident?
The Court identified two primary precautions the Council could have taken. First, regular routine inspections of the mulch surface, followed by replenishment of the mulch to ensure it was level with, and covered the sloped part of, the artificial wet pour surface. Second, painting the sloped part of the wet pour area in a starkly different colour. This would have served as a clear visual warning of the unevenness, acting as a safeguard even if the mulch was displaced. Both measures were deemed reasonable and would have likely prevented the fall.

Q2: How did the plaintiff’s inattention affect the outcome of the case?
Ms Salman’s inattention, specifically her focus on her nephew rather than the ground when transitioning between surfaces, was a key factor in the Court’s finding of contributory negligence. Although the Court acknowledged that some distraction is reasonable in a playground setting and did not negate the Council’s duty, it determined that a reasonable person would have taken a quick look to verify the assumption of a level surface. This led to a 15% reduction in her total damages.

Q3: Is the absence of previous accidents a strong defence for an occupier?
The absence of previous similar accidents can assist an occupier in arguing that a risk was not foreseeable or significant. However, as this case illustrates, it is not always a decisive factor. The Court noted that the playground upgrade was relatively recent, meaning there might not have been enough time for previous incidents to be reported. Coupled with actual warnings from inspection reports and non-compliance with industry standards, the lack of prior complaints held less weight against the evidence of a known, unaddressed hazard. A “first time for everything” principle applies, especially if the injury is severe and the hazard known.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case
Case Subtype: Personal Injury – Negligence in a public playground due to inadequate surface maintenance and failure to warn.
Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements
⑦ Personal Injury and Compensation
Core Test (Negligence under the Civil Liability Act):
* Was there a Duty of Care owed? The occupier (Hornsby Shire Council) owed a duty to Ms Salman, an entrant, to take reasonable care to avoid foreseeable risks of injury. This duty extends to persons who might be distracted or inattentive, especially in a children’s playground.
* Was there a Breach of Duty (was the risk foreseeable and not insignificant)? The risk of a person falling and sustaining injury when traversing between the mulch/bark and artificial (‘spongy’) surfaces due to an uneven height differential was found to be foreseeable and not insignificant. The Council had actual knowledge of this specific risk via its inspection reports, yet failed to take reasonable precautions such as replenishing mulch to level surfaces or distinctively painting the slope as a warning.
* Did the breach cause the injury (Causation)? Yes, the Court found that ‘but for’ the Council’s failure to take these reasonable precautions, Ms Salman would not have lost her balance and fallen, thereby establishing factual causation. The scope of liability was also satisfied.
* Core Test (Damages): Does the Whole Person Impairment (WPI) exceed the statutory threshold (e.g., 15% for non-economic loss in some jurisdictions)? Is there contributory negligence? Non-economic loss was assessed at 30% of a most extreme case, well above any potential threshold for damages. Ms Salman was found to be contributorily negligent at 15% for failing to keep a proper lookout.

3. Equitable Remedies and Alternative Claims
If dealing with Civil matters:
Promissory / Proprietary Estoppel:
* Did the other party make a clear and unequivocal promise or representation? (e.g., “this property will be yours”)
* Did you act in detrimental reliance on that promise? (e.g., renovating the property, resigning from a job)
* Would it be unconscionable for the other party to resile from that promise?
Result Reference: Even without a written contract, Equity may “estop” the other party from going back on their word. In a pure negligence personal injury case like this, promissory or proprietary estoppel would typically not be directly applicable as the claim is rooted in a breach of a common law and statutory duty of care, rather than reliance on a promise concerning property or a contractual relationship.

Unjust Enrichment / Constructive Trust:
* Has the other party received a benefit (money or labor) at your expense? Is it against conscience for them to retain that benefit without payment?
Result Reference: The Court may order the restitution of the benefit or declare that you hold a beneficial interest in the asset via a Constructive Trust. Similar to estoppel, claims of unjust enrichment or constructive trust are not typically the primary cause of action in personal injury negligence claims. They are more relevant in disputes where one party has gained an unconscionable benefit at another’s expense, often in property or contractual contexts.

4. Access Thresholds and Exceptional Circumstances
Regular Thresholds:
* Limitation Period: For personal injury claims in New South Wales, generally, proceedings must be commenced within three years from the date the cause of action is discoverable (s 50C, Civil Liability Act 2002 (NSW), and Limitation Act 1969 (NSW)). Ms Salman commenced her proceeding on 22 March 2022, just over a year after the accident on 28 February 2021, well within the general limitation period.
* Whole Person Impairment (WPI) Threshold for Non-Economic Loss: Under Section 17A of the Civil Liability Act 2002 (NSW), non-economic loss (pain and suffering, loss of amenity, etc.) is not awarded unless the injured person’s permanent impairment is at least 15% of a most extreme case. The Court assessed Ms Salman’s non-economic loss at 30% of a most extreme case, comfortably exceeding this threshold.

Exceptional Channels (Crucial):
* Personal Injury: Limitation period expired? Extensions may be granted upon the discovery of latent damage or in cases of legal incapacity. Had Ms Salman’s injuries manifested much later or if she had been under a legal incapacity, she could have applied for an extension to the limitation period. This case did not require such an application.
Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case.

5. Guidelines for Judicial and Legal Citation
Citation Angle:
It is recommended to cite this case in legal submissions or debates involving occupiers’ liability, particularly for public authorities managing recreational spaces like playgrounds. It is valuable for arguments concerning the interpretation of “obvious risk,” the scope of the duty of care in contexts of user distraction, the standard of maintenance required for mixed-surface environments, and the weight given to internal inspection reports as evidence of actual knowledge of hazards.
Citation Method:
* As Positive Support: When your matter involves an occupier failing to act on clear internal warnings about a hazard, or where the risk is not readily discernible due to obscuration or variability, or where the injured party was reasonably distracted in a public setting (e.g., caring for a child), citing Salman v Hornsby Shire Council (No.2) [2023] NSWDC 527 can strengthen your argument for breach of duty and against an obvious risk defence.
* As a Distinguishing Reference: If the opposing party cites cases where risks were deemed obvious (e.g., Bruce v Apex Software Pty Ltd t/as Lak Ellen Aged Care [2018] NSWCA 330), you should emphasize the contextual uniqueness of the current matter, such as the hazard being obscured by movable material (mulch), the variable nature of the differential, and the reasonable distraction inherent to a playground environment, to argue that such precedents are not applicable.
Anonymisation Rule: Do not use the real names of the parties; strictly use professional procedural titles such as Plaintiff / Defendant.

Conclusion
This judgment serves as a vital reminder that an occupier’s duty of care in public spaces is robust, encompassing not only overt hazards but also those less discernible to reasonably attentive individuals, especially in environments where distraction is foreseeable. The case powerfully illustrates that adherence to safety standards and proactive maintenance, guided by internal warnings, forms the bedrock of negligence prevention. Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer
This article is based on the study and analysis of the public judgment of the District Court of New South Wales (Salman v Hornsby Shire Council (No.2) [2023] NSWDC 527), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.
The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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