Kempsey Shire Council v Baguley

Kempsey Shire Council v Baguley concerned an appeal to the New South Wales Court of Appeal from a judgment of the primary judge who had found the Council liable in negligence for injuries sustained by the respondent, Mr Baguley, who fell into an unfenced pit at a waste disposal site operated by the Council.

The central legal issue before the Court of Appeal was whether the primary judge had correctly applied section 5B(1)(b) of the Civil Liability Act 2002 (NSW). This required determining whether the risk of harm to Mr Baguley was "not insignificant" and, if so, whether a reasonable occupier in the Council's position would have taken precautions against that risk, considering the probability of harm and the burden of taking those precautions. The Court also had to consider the risks associated with any alternative safety measures proposed.

The Court of Appeal found that the primary judge had erred in their assessment of the risk. Their Honours reasoned that the probability of a person falling into the specific pit in question, given its location and the circumstances, was not "not insignificant" in the manner contemplated by the Act. Furthermore, the Court considered that the proposed alternative safety measure, the erection of a protective wall, carried its own risks of injury, which had not been adequately addressed by the primary judge.

Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's orders, and entered judgment for the Council. Mr Baguley was ordered to pay the Council's costs of both the proceedings at first instance and the appeal.