The unobvious risk: NSW Court of Appeal finds an unmarked speed hump was not an “obvious risk”

The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50

At a glance

On 9 April 2026, the New South Wales Court of Appeal upheld the decision that an Owners Corporation was negligent in respect of an incident in which Ms Balacco suffered injury after tripping on an unpainted concrete speed hump in a private carpark in a commercial/residential building in Bondi Junction.

The judgment highlights for owners corporations the need for adequate risk assessments and consideration of all relevant risks regarding common property. The decision also serves as a salient reminder that the question as to whether a risk is an “obvious risk” for the purposes of Division 4 of Part 1A of the Civil Liability Act 2002 (NSW) (CLA) is to be determined objectively.

Background

Ms Balacco worked for four years in the subject building but was not familiar with the level 2 carpark, having only parked there during the COVID-19 pandemic. On 18 May 2023, she had parked on a nearby street before work as she usually did, but had to move her car to the carpark during the morning at the request of the police because of roadworks. She drove her car into the carpark and passed over the two speed humps before parking her car. She then walked across the two speed humps to reach the lifts.

The two curved speed humps were the only speed humps in the carpark and were not painted with yellow paint, unlike numerous other hazards in the carpark including concrete columns near where she had parked and wheel stops at the rear of the parking spaces. The evidence disclosed that every irregularity in the concrete surface underfoot was painted yellow, except the two speed humps.

At around 5:15pm Ms Balacco returned to the carpark and tripped over the speed hump closest to her car.

After being notified of her incident, the Owners Corporation placed an order for work on 8 June 2023 for the speed humps to be painted yellow.

Discussion

While there were several grounds for the Court of Appeal’s determination, those of particular relevance to owners corporations and strata managers were the following

Ground 1: The adequacy of lighting at the time of Ms Balacco’s fall.
Ground 2: Whether the speed hump was an “obvious risk”.
Grounds 3 and 4: Section 5B of the CLA – no prior incidents and reasonable precautions.

Lighting adequacy

Given the limited CCTV footage (which did not show the incident) and confirming that photographs were not reliable indicators of the brightness of the carpark, the primary judge preferred the evidence of Ms Balacco over that of the working director of the strata manager. Leeming JA, who delivered the judgment, held that it was not necessary on the view he took (regarding “obvious risk”) to determine that error had been made out, but proceeded on the basis the carpark was fully illuminated (including by sensor lights).

Was the unpainted speed hump an “obvious risk”?

The Court of Appeal held it was not.

There was little dispute that the relevant risk as appropriately characterised (per Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65) was the risk of injury from tripping and falling on the subject unpainted concrete speed hump.

There were only two speed humps, both in the vicinity of the spot where Ms Balacco parked her car. Even assuming the carpark was fully illuminated, the painting of all irregularities in the carpark except for the two speed humps took them outside the class of obvious risks. Leeming JA added at [46]:

“Common sense would suggest that a pedestrian’s attention would more readily be drawn to the painted areas; potentially diverting attention from unpainted areas.”

Section 5B CLA

Despite there being evidence of no prior incidents in the carpark since it was built in 1987, Leeming JA found that:

Carparks are hazardous places.
The Owners Corporation failed to carry out risk assessments which most likely would have identified the risk of harm.
The burden of painting the speed humps (no differently to the painting of the other irregularities in the carpark) was trivial.
A reasonable person in the position of the Owners Corporation would have taken the precaution of painting the speed humps in a contrasting colour.

The Court accepted that, on the balance of probabilities, the incident would likely have been avoided had the speed hump been painted.

The Court also rejected the argument that contributory negligence ought to have been found as it could not identify any evidentiary basis on which to conclude that Ms Balacco had not been keeping a proper lookout.

Key takeaways

This case presents the following key takeaways for owners corporations and strata managers, being:

Risk assessments of common property: proactive inspections and risk assessments of common property should be performed to identify hazards for which reasonable precautions ought be taken to minimise risk of injury to entrants to the common property.

Taking reasonable precautions: simple, inexpensive risk mitigation steps, such as painting speed humps and other common property hazards, ought be taken where there is a foreseeable risk of injury.

The need for consistency in marking hazards: the failure to mark some hazards with warning tape or contrasting colour gives rise to those unmarked hazards potentially falling outside the class of obvious risks.

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