State of New South Wales v West & Anor

The High Court of Australia considered the appeal by the State of New South Wales against a decision of the Court of Appeal of the Supreme Court of New South Wales, which had allowed an appeal by the respondents, West and Anor. The dispute concerned the interpretation and application of the *Civil Liability Act 2002* (NSW) in relation to a claim for damages for personal injury.

The central legal issue before the High Court was whether the Court of Appeal had erred in its construction of section 5L of the *Civil Liability Act 2002* (NSW), which deals with the defence of obvious risk of a dangerous recreational activity. Specifically, the court had to determine whether the risk of injury from the activity in question was an "obvious risk" for the purposes of that section, and if so, whether the defendant had breached its duty of care.

The High Court analysed the concept of an "obvious risk" as defined in section 5F of the Act, which requires the risk to be "obvious" to a reasonable person in the position of the person injured. The court considered the nature of the recreational activity and the specific circumstances in which the injury occurred. It was held that the risk of injury from the activity, when undertaken in the manner it was, was not an obvious risk as contemplated by section 5L. The court affirmed that the defence under section 5L requires more than a mere possibility of harm; the risk must be one that a reasonable person would foresee.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal.