Hornsby Shire Council v Salman

Hornsby Shire Council appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales. The appeal concerned a claim in negligence brought by the respondent, Salman, who suffered injury in a playground maintained by the appellant. The dispute centred on whether the appellant had breached its duty of care to the respondent by failing to adequately maintain the playground surfaces, specifically a height differential between two areas.

The Court of Appeal was required to determine whether the height differential between the playground surfaces presented a reasonably foreseeable risk of harm to users, considering Australian playground maintenance standards and advice received by the council to mitigate such risks. Further issues included whether the risk was obvious, the extent to which the risk of harm needed to be specifically formulated, and whether the council’s failure to maintain the surfaces factually caused the respondent’s injury. The court also considered whether the appellant was bound by the way its case was conducted at first instance, given that new arguments were raised on appeal.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The court reasoned that the height differential, even if seemingly minor, posed a foreseeable risk of injury, particularly given the potential for distraction in a playground environment. The appellant's argument that the risk was obvious was rejected, as the assessment of obviousness must consider all circumstances, including the foreseeability of distraction. The court affirmed that the formulation of the risk of harm was appropriately identified at trial and declined to reformulate it on appeal. The appellant was found to have breached its duty of care by failing to take reasonable precautions, including topping up mulch to mitigate the height differential, despite being advised to do so.

Consequently, the Court of Appeal ordered that the appeal be dismissed and that Hornsby Shire Council pay the respondent’s costs of the appeal.