Botany Bay City Council v Latham

The Court of Appeal of New South Wales, comprising Ward and Leeming JJA and Adamson J, considered an appeal by Botany Bay City Council (the appellant) against a decision of Olsson DCJ in favour of Mr Latham (the respondent). The dispute concerned allegations of negligence arising from an incident where the respondent sustained injuries.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in finding the appellant negligent, specifically in relation to the application of section 5B(1)(c) of the *Civil Liability Act 2002* (NSW), which requires a determination of whether the precautions taken were those that a reasonable person would have taken in the circumstances. The court also considered the construction of section 45 of the *Civil Liability Act 2002* (NSW) and its application to the "particular risk" of harm.

The Court of Appeal allowed the appeal, setting aside the judgment of the primary judge. The court found that the appellant had not breached its duty of care. The reasoning focused on the assessment of the risk of harm and the reasonableness of the precautions taken by the appellant in light of the specific circumstances. The court concluded that the respondent had not established that the appellant had failed to take reasonable precautions. Consequently, the court entered judgment in favour of the appellant and ordered the respondent to pay the appellant's costs at first instance and on appeal.