Angel v Hawkesbury City Council

The case of *Angel v Hawkesbury City Council* involved an appeal to the New South Wales Court of Appeal concerning a pedestrian's fall on a defective footpath managed by the Council. The appellant, Ms. Angel, tripped and fell on a displaced concrete slab on George Street, Windsor, sustaining injuries. She alleged negligence on the part of the Council, arguing that the defect in the footpath created a foreseeable risk of harm. The Council, in turn, raised defences including that the risk was an "obvious risk" and that the appellant had not taken reasonable care for her own safety. A significant aspect of the appellant's evidence was that the area where she fell was heavily overshadowed by trees, obscuring the defect.

The primary legal issues before the Court of Appeal were whether the Council owed a duty of care to the appellant, whether that duty had been breached, and whether the defect constituted an "obvious risk" within the meaning of the *Civil Liability Act 2002* (NSW). The court was required to consider the relationship between the obviousness of a risk and the breach of a duty of care, and to determine if the appellant had taken reasonable care for her own safety. Furthermore, the appeal addressed the assessment of damages, specifically concerning future gratuitous attendant care services and the interpretation of the word "solely" in section 15(2) of the *Civil Liability Act 2002* (NSW) in relation to whether the need for care arose solely because of the injury.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge and entering a verdict and judgment for the appellant. The court reasoned that the primary judge had erred in finding the risk to be obvious, failing to adequately consider the circumstances, including the significant shadowing from trees which obscured the defect. The court found that the evidence, particularly from independent witnesses, indicated that the raised lip of the concrete slab was not obvious until one was very close to it, and that the shadows created a deceptive appearance. This lack of obviousness, combined with the Council's management of the footpath, led the court to conclude that the Council had breached its duty of care. The court also found in favour of the appellant regarding the assessment of damages for future gratuitous attendant care services.