Bernasconi v Newcastle City Council

Bernasconi appealed to the Court of Appeal of New South Wales against a decision of the primary judge who found that Newcastle City Council had not breached its duty of care to the appellant, who suffered injury when she tripped and fell on an uneven section of footpath in a shopping mall.

The central legal issue before the Court of Appeal was whether the primary judge had placed undue emphasis on the obviousness of the risk of tripping on the uneven footpath when determining that the Council had not breached its duty of care. The appellant also sought to argue the relevance of earlier falls occurring in the same mall.

Giles and McColl JJA, and Brownie AJA, refused leave to appeal. Their Honours considered that the primary judge's findings were open to her on the evidence presented. The primary judge had properly considered the nature of the risk, the likelihood of injury, and the burden of taking precautions, and had concluded that the risk was obvious and that the Council had not breached its duty of care. The relevance of earlier falls was also considered to be a matter for the primary judge's factual assessment.

Leave to appeal was refused with costs.