Council of the City of Greater Taree v Wells

The appeal before the Court of Appeal of New South Wales concerned a dispute between the Council of the City of Greater Taree and Mr Wells. Mr Wells had suffered injuries when he tripped over a chain installed by the Council across a public pathway. The central issue was whether the Council owed a duty of care to users of the pathway in circumstances where it had placed an obstruction upon it.

The Court was required to determine several legal issues. Firstly, it had to consider the scope of the Council's duty of care to persons using the public pathway. Secondly, the Court needed to assess whether the Council had breached that duty of care, applying the principles set out in section 5B of the *Civil Liability Act 2002* (NSW) and considering the established common law principles from *Wyong Shire Council v Shirt*. Thirdly, the Court had to determine whether Mr Wells had been contributorily negligent, and whether the risk of injury from the chain constituted an "obvious risk" under the *Civil Liability Act 2002*.

The Court reasoned that the scope of a duty of care is determined objectively. It found that the Council, by installing a chain across a public pathway, had created a foreseeable risk of injury to users. The Court held that the principles in section 5B of the *Civil Liability Act 2002* substantially restated the common law principles for determining breach of duty. The Court further considered that the risk posed by the chain was not an obvious risk as contemplated by Division 4 of the *Civil Liability Act 2002*, and that the Council had failed to take reasonable precautions to prevent the harm. The Court also found that Mr Wells's conduct did not amount to contributory negligence.

Consequently, the appeal was dismissed with costs.