Port Macquarie Hastings Council v Mooney

The Court of Appeal of New South Wales considered an appeal by Port Macquarie Hastings Council against a judgment in favour of the plaintiff, Ms. Mooney, who had sustained injuries after deviating from a footpath and falling. The dispute concerned whether the Council owed a duty of care to Ms. Mooney in relation to the risk of harm she encountered.

The central legal issues before the Court of Appeal were whether the primary judge had erred in identifying the relevant risk of harm for the purposes of assessing the Council's alleged negligence, and consequently, whether the primary judge had correctly determined the precautions a reasonable council would have taken in light of that risk.

The Court of Appeal found that the primary judge had misidentified the relevant risk of harm. The primary judge had focused on the risk of a pedestrian falling due to an uneven surface or obstruction on the footpath itself. However, the Court of Appeal determined that the actual risk encountered by Ms. Mooney arose from her voluntary decision to step off the footpath into an area not intended for pedestrian use, where the ground was uneven and sloped. The Court reasoned that a reasonable council, in fulfilling its duty to maintain public footpaths, would not be expected to guard against the risk of a pedestrian choosing to leave the designated path and encountering hazards in an adjacent area. Accordingly, the Court concluded that the Council had not breached its duty of care.

The Court of Appeal allowed the appeal, set aside the orders of the primary judge, and entered judgment for the defendant, Port Macquarie Hastings Council. Ms. Mooney was ordered to pay the Council's costs of the proceedings and the appeal.