Port Stephens Council v Theodorakakis

Port Stephens Council sought leave to appeal from a judgment of the District Court of New South Wales which found the Council liable in negligence for injuries sustained by the respondent, Mr. Theodorakakis, who tripped and fell on a footpath. The Council's appeal concerned the assessment of whether the risk of tripping was an "obvious risk" for the purposes of the *Civil Liability Act 2002* (NSW).

The primary legal issue before the Court of Appeal was whether the District Court erred in its determination that the risk of tripping on the footpath was not an obvious risk within the meaning of section 5F of the *Civil Liability Act 2002* (NSW). This involved considering the nature of the defect in the footpath and whether it was a risk that would have been obvious to a reasonable person exercising ordinary perception, intelligence and diligence. The Court also considered whether the Council's defence under section 42 of the *Civil Liability Act 2002* (NSW), relating to the allocation of financial and other resources, had been properly raised and assessed.

The Court of Appeal observed that reliance on defences such as those provided by sections 42 and 45 of the *Civil Liability Act 2002* (NSW) should be pleaded. In assessing the prospects of success on appeal, the Court considered the evidence and the findings of the primary judge. The Court concluded that there were insufficient prospects of success to grant leave to appeal.

Accordingly, leave to appeal was refused.