What happened
The respondent arrived with her family at a Windsor park and tripped on a steel cable strung between low timber posts while walking from the car park towards the playing fields. Large concrete blocks had been placed immediately behind the cable to deter vehicles; she argued that the blocks and shade made the cable difficult to perceive, and the fall caused acute compartment syndrome and lasting injury to her left leg.
The issues
The principal questions were whether the combination of concrete blocks and the existing cable created a risk requiring precautions under s 5B of the Civil Liability Act, and whether a civil engineer’s visual-perception opinions met the specialised-knowledge requirement in s 79 of the Evidence Act. A further quantum issue concerned how to value additional gratuitous care provided by a spouse who was already receiving a carer payment.
The court's decision
The majority held that the challenged visual-perception opinions were not shown to be based on relevant specialised knowledge and that, on the photographs and remaining evidence, the cable was obvious when viewed with the posts and blocks by a person taking reasonable care. The risk was therefore not established at the level required by s 5B, so the appeal was allowed and the trial judgment of AUD 394,415.38 was set aside in favour of dismissal; that earlier sum was not a final award.
Understanding the figures
The trial judgment was AUD 394,415.38 after a 30% reduction for contributory negligence, but the Court of Appeal set that judgment aside and dismissed the proceeding. It was therefore not a surviving award; the final appellate outcome left no damages payable to the respondent.
What this case shows
The case shows that visibility and obviousness are assessed prospectively by considering the whole arrangement, the limits of photographic evidence and reasonable self-care, rather than from the fact that an accident occurred. It also emphasises that an expert’s title or general experience is insufficient unless the evidence explains how the particular opinion is derived from specialised knowledge based on training, study or experience.
Why another case may differ
This was a majority decision tied to the photographs, the precise block-post-cable arrangement and the admissibility of the evidence; it is not a rule that every low obstacle or park accident involves an obvious risk. Simpson AJA dissented on liability, and although the Court discussed reassessment of gratuitous-care damages, dismissal on liability meant that calculation did not become a payable final award.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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