Kelly v Council of the City of Lake Macquarie

In *Kelly v Council of the City of Lake Macquarie* [1997] NSWCA 173, the New South Wales Court of Appeal considered an appeal by the plaintiff, Ms. Kelly, against a decision of the primary judge. The dispute concerned the plaintiff's claim for damages for personal injuries sustained as a result of a fall on a public footpath maintained by the defendant, the Council of the City of Lake Macquarie.

The central legal issue before the Court of Appeal was whether the Council had breached its duty of care to the plaintiff. Specifically, the court had to determine if the Council had failed to take reasonable steps to prevent the foreseeable risk of injury arising from the condition of the footpath, and if so, whether this failure caused the plaintiff's injuries.

The Court of Appeal upheld the primary judge's finding that the Council had not breached its duty of care. The court reasoned that while the footpath was uneven, the degree of unevenness was not such as to create a foreseeable risk of injury to a pedestrian exercising reasonable care for their own safety. The court applied the principles of negligence, emphasizing that a duty of care does not require the elimination of all risks, but rather the taking of reasonable precautions against foreseeable risks. The evidence did not establish that the condition of the footpath was so dangerous as to warrant intervention by the Council.

The appeal was dismissed.