Blue Op Partner Pty Ltd v De Roma

Blue Op Partner Pty Ltd appealed to the New South Wales Court of Appeal against a District Court decision that found it liable for injuries sustained by the respondent, Mr De Roma. Mr De Roma had tripped and fallen on an uneven footpath, sustaining injuries. The unevenness was caused by a height differential of up to 1cm between a utility pit lid and its surrounding metal frame. The dispute concerned whether Blue Op Partner Pty Ltd, as occupier, owed a duty of care to Mr De Roma and whether the risk of tripping on the uneven surface constituted an "obvious risk" under the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine whether the risk of harm to Mr De Roma was an obvious risk for the purposes of section 5H(1) of the *Civil Liability Act 2002* (NSW). This involved considering how the risk of harm should be characterised and whether the specific risk of tripping on the uneven footpath, with its particular height differential, was an obvious risk that would have been apparent to a reasonable person in the position of Mr De Roma.

The Court reasoned that the risk of harm needed to be characterised by reference to the specific circumstances, not in general terms. It found that the height differential of up to 1cm between the utility pit lid and the surrounding frame did not present a risk of harm that would have been obvious to a reasonable person. Therefore, the risk was not an "obvious risk" as defined by the Act, and the protection afforded by section 5H(1) was not available to the appellant.

Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's orders. The proceedings against the appellant partnership were dismissed, and Mr De Roma was ordered to pay the appellant's costs. The Court also dismissed a summons seeking leave to cross-appeal and ordered Mr De Roma to pay the appellant's costs of the appeal and the proposed cross-appeal. Leave was granted for the appellant to apply to vary the costs order in relation to the District Court proceedings.