Hornsby Shire Council v Salman [2024] NSWCA 155

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hornsby Shire Council v Salman [2024] NSWCA 155 Hearing dates: 29 May 2024 Decision date: 27 June 2024 Before: White JA at [1]; Adamson JA at [34]; Basten AJA at [136] Decision: (1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs of the appeal. Catchwords: NEGLIGENCE — breach — foreseeability of risk — whether height differential between surfaces in a playground gave rise to a reasonably foreseeable risk of harm — whether height differential was readily discernible — where the Australian playground maintenance standards applied — where council was independently advised to take steps to mitigate risk — where council did not take reasonable precautions advised NEGLIGENCE — breach — obvious risk — whether height differential between different surfaces in a playground was obvious — assessment to be made in all the circumstances — where it was foreseeable that playground users would be distracted by children NEGLIGENCE — causation — factual causation — whether council's failure to top up mulch in playground to even out the surfaces caused the respondent's injury NEGLIGENCE — duty of care — formulation of risk — whether primary judge erred in identifying the risk of harm as the risk of falling and sustaining injury when walking between two surfaces in a playground — whether the risk of harm could be reformulated on appeal — necessary specificity of formulation of risk of harm APPEALS — point not taken below — where matters raised on appeal were not raised before the primary judge — where council's case on appeal differed substantially from the way in which it was conducted at first instance — extent to which parties are bound by the way in which their case was conducted at first instance Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5G, Div 4 Evidence Act 1995 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Blacktown City Council v Hocking [2008] NSWCA 144; [2008] Aust Torts Reports 81-956 Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169; [2015] Aust Torts Reports 82-227 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Jolley v Sutton London Borough Council [2000] 1 WLR 1082; [2000] 3 All ER 409 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Salman v Hornsby Shire Council [2023] NSWDC 506 Salman v Hornsby Shire Council (No 2) [2023] NSWDC 527 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 State Rail Authority v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 Tapp v Australian Bushmans Camp Draft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11 Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Venues NSW v Kane [2023] NSWCA 192 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Category: Principal judgment Parties: Hornsby Shire Council (Appellant) Kathie Beatrice Salman (Respondent) Representation: Counsel: R Sheldon SC (Appellant) D A Lloyd SC / E P Anderson (Respondent)