Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council  NSWCA 320
March 21, 2016
As a postscript to our Legal Directions article dated 27 October 2015 – which dealt with the NSW Court of Appeal decision dismissing the plaintiff’s proceedings against the Uniting Church (‘school’) and dismissing the plaintiff’s appeal against the Council – the plaintiff had sought special leave to appeal to the High Court from the Court of Appeal’s decision to dismiss the proceedings against the school.
Special leave was refused, as the High Court was of the view that the plaintiff had no prospects of succeeding on the appeal.
Accordingly, the Court of Appeal decision stands. This decision stressed the importance of:
- identifying the risk of harm which will thereupon enable the court to determine whether the risk of harm was reasonably foreseeable to the defendant for the purpose of s5B of the Civil Liability Act 2002 (NSW)
- whether the risk was not insignificant
- what reasonable precautions the defendant ought to have taken.
The obiter comments of the Court of Appeal remain, which leave open the argument that a school’s duty may include undertaking risk assessments of sporting facilities used by students during school holidays, unless there is sufficient evidence of the magnitude of any burden imposed upon a school to undertake risk assessments of such facilities.
Authored by Lionel Gardner, Partner, Sydney.
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