Sutherland Shire Council v Safar

Sutherland Shire Council appealed to the New South Wales Court of Appeal against a decision of the primary judge who found the Council liable in negligence for injuries sustained by the respondent, Mr Safar. The dispute concerned whether the Council, as occupier of a public reserve, had breached its duty of care to Mr Safar and whether this breach caused his injuries. Mr Safar had challenged the primary judge's finding that the risk of injury he suffered was an obvious one.

The Court of Appeal was required to determine whether the primary judge erred in finding that a reasonable person in the position of Sutherland Shire Council would have taken certain precautions. Specifically, the Court had to consider whether the primary judge adequately assessed the matters required under section 5B(2) of the *Civil Liability Act 2002* (NSW) in determining the Council's liability. The central legal questions were whether the Council's conduct constituted a breach of its duty of care to Mr Safar, and if so, whether that breach caused the harm Mr Safar suffered, and whether the scope of the Council's liability extended to the specific harm he sustained.

The Court of Appeal upheld the primary judge's findings. It reasoned that the primary judge had properly considered the relevant factors under section 5B(2) of the *Civil Liability Act 2002* (NSW), including the probability of the harm occurring, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that created the risk. The Court found no error in the primary judge's assessment that the risk of injury was not obvious, and that the Council had failed to take reasonable precautions to prevent the harm. The appeal was dismissed with costs.