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In Hodgson v Sydney Water Corporation the Plaintiff slipped on the concrete apron of a drain which discharged water onto the beach at Rose Bay. She suffered personal injuries to her right shoulder and wrist and claimed personal injury compensation. It was alleged the drain was mossy and slippery and that Sydney Water Corporation had failed to adequately inspect, maintain or repair it.

The Plaintiff also alleged that no warning sign was visible, however there was a warning sign above the drain facing the sea, stating ‘danger, slippery surface’ with the image of a person slipping.

The Court found the risk of slipping was an obvious one which did away with the duty to warn. However, because the sign was facing the sea rather than towards any pedestrians and ambiguous as to its intended audience, the Defendant was not able to rely on an argument based on s5M Civil Liability Act – that no duty of care was owed because of the presence of a risk warning.

The Defendant also argued that there was no liability due to the materialization of an inherent risk. The Court found that although the risk was an obvious one, it was not ‘inherent’ as it could have been avoided by the Defendant’s exercise of reasonable care and skill.

The Defendant was warned of the risks more than a year prior to the incident, with evidence showing that pedestrians and visitors often fell on the slippery crossing and at least one person had sustained serious injuries as a result. The Defendant had considered removing the concrete apron prior to the incident and at the time were awaiting a structural solution from external engineers. The concrete apron was subsequently removed and replaced.

The Court found that the Defendant should have taken interim measures to avoid the foreseeable risk while awaiting a structural solution.

The Plaintiff succeeded with no reduction for contributory negligence.

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Matthews Folbigg has over 50 years’ experience protecting personal injury and compensation rights of people living in Parramatta and the Hills.