By Nikki Cassar, Partner and Lucas Oraha, Lawyer

In The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50, the New South Wales Court of Appeal considered the extent to which an occupier can rely on the defence of “obvious risk” under the Civil Liability Act 2002 (NSW) (CLA) in the context of a relatively commonplace hazard.

The characterisation of a risk as “obvious” depends on an objective assessment of the circumstances confronting all users, and not merely the injured person. It also underscores that simple, low burden measures, such as the use of visual cues, may be necessary to discharge an occupier’s duty where a risk is foreseeable, even if it might initially appear unremarkable.

Factual Background

The respondent, Ms Balacco, sustained injury after she slipped and fell on a speed hump located in the carpark of a residential building owned and occupied by the Appellant, the Owners – Strata Plan No 31337 (the Owners). Ms Balacco brought a claim against the Owners in the District Court.

The primary judge found breach of duty arose from a combination of factors, namely the inadequacy of the carpark lighting and the fact the speed hump was unpainted and blended with its surroundings at the relevant time.

On 23 July 2025, the primary judge found the Owners liable in negligence and awarded damages of $385,484.78.

The Owners appealed on eight grounds, including challenges to findings of fact concerning lighting, the application of “obvious risk” under s 5F CLA, the findings of breach and causation, and the assessment of damages.

Decision

Ground 1 – Inadequacy of the Lighting

The Court of Appeal accepted the Owners’ submissions the primary judge erred in finding the lighting was inadequate at the time of Ms Balacco’s fall. Despite this, it was not determinative in deciding whether the Owners could successfully rely on s 5F CLA.

Ground 2 – s 5F CLA: “Obvious Risk”

The Owners challenged the finding of the primary judge that the unpainted speed hump did not give rise to an obvious risk, within the meaning of s 5F.

The evidence confirmed there were only two speed humps in the carpark, both of which were unpainted. Many other potential hazards in the carpark were painted yellow. The Court found “common sense would suggest that a pedestrian’s attention would more readily be drawn to the painted areas; potentially diverting attention from unpainted areas”.

In coming to its conclusion, the Court also considered the primary judge’s reasonings, including:

• It was irrelevant whether Ms Balacco drove and walked over the subject speed hump prior to the fall;
• A person cannot be expected to remember potential hazards which may have been used, hence the utility of visual cues;
• A person may be concentrating on other things, such as parking their car, rather than the potential hazard; and
• A determination of an obvious risk is objective, and must apply to all users, including those which may be unfamiliar with the subject area.

The Court therefore upheld the primary judge’s finding the unpainted speed humps were not an “obvious risk” within the meaning of the CLA.

Grounds 3 and 4 – Reasonable Precautions

The Owners challenged the primary judge’s findings with respect to the application of s 5B CLA, specifically with respect to the absence of prior reports of the subject speed hump and the precautions which ought to have been taken by a reasonable person.

The Court agreed with the trial judge and found:

• An absence of prior reports was not determinative of the issue of breach; and
• It was not unreasonable for the Owners to paint the speed humps yellow so as to warn of their presence, in consideration of the fact other potential hazards were painted, and there were only two speed humps, which the Court found was unusual.

Ground 5 – Causation

The Owners’ contended the absence of contrasting paint on the subject speed hump was a necessary condition of the occurrence of Ms Balacco’s injuries.

The Court upheld the primary judge’s conclusion finding Ms Balacco needed only establish that it was more probable than not she would not have slipped and fallen had the speed hump been painted. The Court found a painted speed hump would have reduced the likelihood of this occurring.

Ground 6, 8 and 9 – Contributory Negligence and Damages

The Owners challenged the primary judge’s finding of no contributory negligence on the part of Ms Balacco given the size and location of the subject speed hump, the fact she had driven and walked over it earlier in the day and the earlier acceptance the lighting was not inadequate.

The Court found the acceptance of the adequate lighting was immaterial. The Court accepted Ms Balacco was keeping a proper lookout for her safety and upheld the original decision on contributory negligence.

In relation to damages, the Owner’s challenged the award for future economic loss and future domestic assistance. Those aspects of the appeal were successful resulting in the damages being reduced to $250,499.06.

Key Takeaways

Balacco illustrates the methods a Court uses to assess whether a hazard is an obvious risk, the reasonable precautions a reasonable person ought to take against the hazard, and the finding of contributory negligence.

In order to rely on the defence of “obvious risk”, it must be objectively shown that a risk is obvious to a reasonable person, and not just the person affected by the risk.

Balacco also reinforces the necessity of taking reasonable precautions to address foreseeable risks, even ones which may have a low probability of harm.