The Balancing Act – Risk of Precaution v Risk of Injury

The Balancing Act – Risk of Precaution v Risk of Injury

Judgment date: 8 November 2010

Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284

New South Wales Court of Appeal¹

In Brief

• Probability of harm is not solely determined on how many complaints have been previously made or the witness of prior similar incidents.
• In establishing failure to take reasonable precautions evidence is required of the probable 'success' of the proposed precaution as against the risk as it presently stands.

Background

The Kempsey Shire Council (Council) was the occupier of the Kempsey Waste Receival and Disposal Facility Centre (tip). On 27 September 2007 Ms Baguley (plaintiff) drove her utility to the tip to dispose of a load of rubbish. On entry she was directed by the person in charge where to unload her rubbish at the rubbish pit (pit).