The recent New South Wales Court of Appeal decision in Hornsby Shire Council v Salman [2024] NSWCA 155 contains one of the final judgments of Justice Basten before he retired from the New South Wales Court of Appeal. This case presents a valuable opportunity to contrast differing judicial approaches to negligence claims against local councils, offering insight into how the law regarding liability for “slip and fall” incidents may evolve in the future.
Key Aspects of the Salman Judgment
In this case, Ms Salman sustained injuries to her right ankle while walking in a playground toward a swing occupied by her nephew. The injury occurred when she stepped from a mulched area surrounding the playground equipment onto the adjacent blue, rubberised base. The mulched and rubberised surfaces were at different heights and colours.
Evidence revealed that the Council had commissioned two expert reports, both recommending that the mulch be topped up to level with the rubberised area—at a modest estimated cost of around $300. Despite this, the Council took no action. The case also involved detailed expert evidence regarding relevant Australian Standards for playground safety.
Under cross-examination, the plaintiff conceded that the reason she rolled her ankle was that she had not been paying attention to where she was walking.
The Court of Appeal had to consider several critical issues:
- Duty of Care: The Council’s obligation to ensure the safety of its facilities.
- Breach of Duty: Whether the failure to level the surface amounted to a breach.
- Obvious Risk: The applicability of the defence under the Civil Liability Act 2002 (NSW).
- Causation: Whether the Council’s inaction caused the injury.
The majority, White and Adamson JJA, found the Council liable, stressing the importance of adhering to safety recommendations and taking into account the likely behaviour of playground users—namely, distraction. Relying heavily on expert opinion, they held that the hazard was not “obvious” within a playground setting, where it is foreseeable that attention might be diverted.
Justice Basten AJA’s Dissent
Justice Basten AJA issued a strong dissenting judgment, offering a perspective more aligned with the law as it had developed in previous cases. He argued that the height difference between the surfaces was clearly an obvious condition, and that councils should not be required to take steps to remedy such an apparent variation.
His judgment drew on the High Court’s reasoning in Ghantous v Hawkesbury City Council (2001) 206 CLR 512, which places strong emphasis on individual responsibility and limits council liability in relation to “obvious risks.” In contrast to the majority, Justice Basten asserted that a reasonable person would have noticed the height difference and taken care accordingly.
To further illustrate Justice Basten’s views, it is helpful to consider his reasoning in Council of the City of Sydney v Bishop [2024] NSWCA 125. In that case, he also favoured the argument that if a risk is sufficiently apparent, the council's duty to warn or take precautions is diminished. His approach reflects a philosophy that prioritises individual responsibility for one’s own safety and resists imposing extensive liability on public authorities.
Critique of Expert Evidence and Emphasis on Common Sense
Justice Basten was also critical of the extensive reliance on expert evidence in this case. He stated that the matter was simple and should have been resolved by applying the Court’s own experience and common sense. In his words:
“Experts are relied on where none is needed; expert evidence has proved, not merely otiose, but a distraction.”
This reflects his broader judicial approach: to avoid overcomplicating straightforward factual situations with unnecessary expert involvement.
Absence of Prior Incidents
Justice Basten also placed weight on the fact that there had been no previously reported incidents in the playground. He referred to principles from Venues NSW v Kane [2023] NSWCA 192, stating that the absence of previous injuries should have been a powerful consideration in favour of the Council. In his view, it supported the conclusion that there was no breach of duty established on the evidence.
Conclusion
Hornsby Shire Council v Salman illustrates the complexities of negligence claims against local councils and may flag a return by the NSW Court of Appeal to a less robust approach to the concept of obvious risk.
The contrast between the majority and dissenting judgments in Salman underscores the inherent flexibility available to the Court in applying negligence principles. Comparing Salman with cases such as Council of the City of Sydney v Bishop, Ghantous v Hawkesbury City Council, and Blue Op Partners v De Roma reveals a nuanced balancing of council responsibilities against individual responsibility, within the specific legal and factual context of each case.
Justice Basten’s dissenting judgment in Salman—and his powerful emphasis on using common sense to determine what is an “obvious risk”—aligns with a judicial philosophy that favours limiting council liability and highlights the importance of individuals taking responsibility for their own safety. With his retirement, it remains to be seen whether this emphasis will diminish, and whether public spaces must once again become “level playing fields.”
