The Owners – Strata Plan No 31337 v Balacco

1. [1]

   WARD P: I agree with Leeming JA.

2. [2]

   LEEMING JA: Shortly before 5.15pm on 18 May 2023, Ms Grace Balacco slipped and fell on a speed hump, injuring herself badly including by breaking her right humerus, as she returned to her car which was parked on the level 2 carpark of a commercial/residential building in Bondi Junction. Ms Balacco sued the owners corporation of the building, which owned and occupied the common property where the speed hump was located. After a trial over four days in December 2024 before the primary judge sitting without a jury, in July 2025 her Honour published reasons and entered a judgment described as, “Verdict for the plaintiff in the sum of $385,484.78”. The owners corporation appeals as of right pursuant to District Court Act 1973 (NSW), s 127.

3. [3]

   The essence of the breach of duty found by the primary judge was that the carpark was quite dark at the time Ms Balacco fell, and the speed hump was the same grey as the concrete surface on which it rested, although many other obstacles and irregularities in the carpark were painted.

4. [4]

   The appeal challenges a finding as to the lighting at the time of the fall, whether the speed hump constituted an “obvious risk”, the findings of breach and causation, the failure to find contributory negligence, and two aspects of the assessment of damages. The most convenient course will be to summarise the uncontroversial background and evidence bearing on the location of the fall, and then to address the various grounds in turn, dealing with the reasoning and findings of the primary judge, the parties’ submissions and their resolution.

Uncontroversial factual background

1. [5]

   Ms Balacco had worked for a medical doctor with chambers on the fourth floor of the same building for around four years. However, she was unfamiliar with the level 2 carpark, which was not accessible to members of the public, and where hitherto she had only parked during the period of the COVID-19 pandemic. On the morning of 18 May 2023, she drove to work, parked in a nearby street as was her custom, and commenced her day’s work. During the morning she received a phone call from police asking her to move her car because of roadworks. She returned to her car, and drove into the carpark of the building, using her security swipe card. She parked in the spot associated with lot 125, accepting that when doing so her vehicle passed over the speed hump once, and a second nearby speed hump twice. She then returned to work, walking over the speed hump to reach the lifts.

2. [6]

   At the conclusion of her day, she returned via the lift to the level 2 carpark. It was shortly before 5.15pm, some five weeks before the winter solstice. Her evidence concerning the slip and fall was adduced orally. In its entirety, it was:

3. [7]

   The plaintiff was then shown a photograph, taken a fortnight after her accident, which became Exhibit 1 and which (it was uncontroversial) showed the speed hump on which she had fallen. The plaintiff was also asked to mark the direction of her travel and where she fell on the speed hump. Those markings can be seen in red on the exhibit reproduced below.

4. [8]

   There was no dispute that the speed hump had been constructed at the time the building had been built, apparently in around 1987. It was curved. The expert called by the owners corporation, Mr Strautins, established that it rose to a maximum height of 65mm and was around 270mm in width. He added that the speed hump complied with the standards applicable when it was constructed.

5. [9]

   Ms Balacco was not cross-examined about the evidence of her fall, although she said that she did not have her car keys in her hand as she approached her car, and that she was wearing short boots with no heels. She accepted that when parking her car in the morning, she drove over the speed hump and must have felt it, and that she walked over it when leaving her car to go to the lifts, although she said she did not realise it was there. Ultimately she accepted that it was common for there to be speed humps in carparks, and that there were speed humps in the building where she slipped and fell.

6. [10]

   There were two speed humps in the carpark. In addition to the one visible on Exhibit 1 reproduced above on which Ms Balacco slipped, there is another nearby, straight ahead of Ms Balacco’s parking spot, over which she would have driven, twice, in order to reverse into the spot. She accepted as much in cross-examination. Both speed humps may be seen in the following pictures taken from one of the expert reports which was in evidence at trial:

7. [11]

   It can be seen from all three photographs that there is yellow paint on the concrete columns adjoining each parking spot. It may also be noted that the wheel stops at the back of each parking spot (seen at the top of the first photograph) had gold bands on them.

8. [12]

   However, and importantly for the purposes of this appeal, the yellow and black paint on both speed humps visible in the second and third photographs above was applied after Ms Balacco’s accident. When she slipped and fell, the concrete speed hump was the same colour as the concrete surface of the driveway, as may be seen in the first photograph above.

9. [13]

   The expert called by the owners corporation agreed that “the hazard could have been better highlighted to make it more obvious, such as by painting the Speed Hump as it is presented in its current condition”, however he maintained that it was “already obvious to someone taking reasonable care due to its size and dimensions and had previously negotiated the hazard without concern”. He noted that:

10. [14]

    Ms Balacco formally reported the incident to the strata manager, attaching photographs, on 7 June 2023. On 8 June 2023, the owners corporation placed an order for work which was described on the contractor’s invoice as follows:

11. [15]

    The total cost was $2,900 for labour and $500 for materials/paint, plus GST. It is clear that that included painting yellow and black bands on the speed humps, but it is unclear what the cost of that work by itself would have been.

12. [16]

    Mr Balacco’s pleaded claim that went to trial emphasised the painting of the speed hump shortly after, and (it may readily be inferred) in consequence of, her accident. Indeed, colour pictures resembling those set out above were incorporated in the pleading. The defendant owners corporation admitted that the speed hump had not previously been painted, and was painted on or around 8 June 2023, and referred, appropriately, to s 5C(c) of the Civil Liability Act 2002 (NSW), which provides that the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. It was not suggested that the primary judge erred in failing to adhere to s 5C(c); her Honour did so explicitly at [125]-[127]. To be clear, no part of these reasons relies on the fact that the speed hump was subsequently painted, either as an admission or as a contributor to the conclusion that the owners corporation is liable.

13. [17]

    The owners corporation adduced evidence from Mr Simon Strum, a working director of the strata manager. He had worked there for some five or six years. His evidence was that there had “never” been an incident in the carpark. The cross-examiner did not explore what that meant. If his evidence was to be understood as extending to times earlier than the last six years, no basis for his knowledge was made out. If the owners corporation or the strata manager maintained an incident register, it was not tendered.

Ground 1: The primary judge erred in finding that the lighting was inadequate at the time of Ms Balacco’s fall

1. [18]

   The factual finding as to the lighting in the vicinity of the speed hump at the time of the accident was a large issue at trial.

2. [19]

   There were CCTV cameras in the carpark, but they did not, seemingly, capture Ms Balacco’s fall. The extract from the footage which was tendered, which occupies around 45 seconds (although some of it is sped up) was of the carpark after she fell and when people came to her aid. Hence the issue of how well lit the carpark was when Ms Balacco fell was determined on the basis of testimonial evidence.

3. [20]

   Mr Strum said that around four years ago (which is to say, before Ms Balacco’s accident), the carpark had been upgraded to an LED system, with full lighting during daylight hours, while at night time the lighting dropped to around 30%, but with motion sensors which would cause it to light up. He said that the motion sensors detected both pedestrians and vehicles. He said that “[p]robably around 6pm until 6am, they would … go into sleep mode or sensor mode”. He confirmed that, during the day time, the lights were on (“We haven’t changed the setting on the lights. If you, if you go to our building now, it’s a beautiful sunny day, the carpark lights will be on”).

4. [21]

   The primary judge preferred the evidence of the plaintiff over that of Mr Strum. Her Honour did so in two portions of her reasons. First, during a consideration of whether there was a foreseeable risk of harm, her Honour said at [133]-[135]:

5. [22]

   Secondly, when dealing with causation, her Honour returned to the same evidence at [151]-[152]:

6. [23]

   There was no challenge to the preference given by the primary judge to the recollection of Ms Balacco that the carpark lighting was on “sensor” mode at around 5.15pm on 23 May 2023.

7. [24]

   The owners corporation accepted that Mr Strum may have been wrong about when the system switched over to sensor operation. (It is quite possible that it had been switched to move into sensor mode at 6pm daylight savings time, and that had not been altered when daylight savings ceased in April 2023.)

8. [25]

   However, the owners corporation submitted that it was unlikely that he was wrong about the lights being turned on by movement detectors, and in any event he was not challenged about that. It then submitted that, in the absence of something more, it was not open to her Honour to prefer Ms Balacco’s evidence about the lighting and to proceed on the basis that the lighting remained at 30% when she tripped on the speed hump. The owners corporation contended that the primary judge had “either misunderstood or overlooked the fact that the lighting would have been fully operative at the 100% level once the respondent entered the carpark as a pedestrian (and simply moved) irrespective of the time of day and whether or not the lighting was in sensor mode”.

9. [26]

   There was no evidence that the motion detectors were ineffective, or only detected vehicles and not pedestrians, or took too long to turn on the lights. Nor did any component of her Honour’s reasoning turn on considerations of that kind. Instead, the motion-detecting sensor was described as a “very good” system, without any challenge.

10. [27]

    In response, the (unsigned) written submissions of Ms Balacco (which were filed at around the time the lawyers who had acted for her at trial had ceased to act) said that this was a question of fact, not of law, and was a matter for the trial judge, adding that “[t]here is no obvious error of law”. Unquestionably this ground is well removed from any error of law, but that is not to the point. Section 127 of the District Court Act confers a right of appeal, unconfined to questions of law, from any final hearing in an action to or of the value of $100,000 or more. In oral submissions, counsel for Ms Balacco (who had not appeared at trial) contended that “only in exceptional circumstances would the Court interfere with factual findings”. That is not so, and the present appeal is an example. At this trial, the favouring of Ms Balacco’s evidence over that of Mr Strum was likely to have been informed by her Honour’s assessment of her evidence, and no doubt for that reason the owners corporation refrained from challenging any aspect of her Honour’s acceptance of that evidence.

11. [28]

    But where a finding falls outside the class of findings likely to have been affected by the trial judge seeing and hearing witnesses give evidence, then no special deference is given to it as part of an appellate court’s obligation to conduct a “real review”. That was the point of Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, which resolved a large controversy on this issue. Subsequently the position has been regarded as settled. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27], the joint reasons said, “If, making proper allowance for the advantages of the trial judge, [appellate courts] conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute”. True it is that there is a passage in Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43] which, if read acontextually, might suggest to the contrary, but that was put right by Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]:

12. [29]

    The suggestion that the joint judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170 somehow altered this basic aspect of review of fact finding was rejected in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35 at [111]-[126].

13. [30]

    But that is well removed from the challenge to the finding as to lighting in the present case. The primary judge accepted the plaintiff’s evidence, and found, favourably to her, that the lighting was in sensor mode. But it does not without more follow that the lighting was not at 100% by the time Ms Balacco reached the speed hump. She needed to walk from the lifts to the driveway and then turn left and walk past four parking spaces to reach the speed hump. Although there was inconsistent evidence as to her precise path, the distance must have exceeded 10 metres. It is possible that the motion detection sensor did not immediately detect her movement along the driveway. It is also possible that there was a delay between detection and the full illumination of the carpark. But there is nothing in the evidence to support the conclusion that the delay in detection or illumination was such that the lights had not come to 100% by the time she reached the speed hump.

14. [31]

    That is to say, having found that the lighting was in sensor mode at around 5.15pm on 18 May 2023, her Honour did not further engage with the evidence as to whether the level of the carpark was fully illuminated at the critical time, just before she reached the speed hump.

15. [32]

    Ms Balacco’s evidence that the lights were “not very high lit” was directed to when she first entered the carpark. It is possible that her evidence that it was “dark-ish” when she slipped was intended to convey that the lighting had not increased to 100% by the time she reached the speed hump, but that is far from self-evident, although I would readily accept that the primary judge was in a better position to gauge this than this Court merely reading the transcript. But if that is how her evidence is to be understood, then it was necessary to consider how it was reconciled with the (unchallenged) evidence about the sensors causing the lighting to increase to 100% when motion was detected.

16. [33]

    The owners corporation maintained that the primary judge erred in finding that the lighting was inadequate and darkish both in the lead up to and at the start of the incident, and that her Honour ought to have found that the lighting was adequate at the time Ms Balacco tripped and fell.

17. [34]

    It is not necessary for me, on the view I take, to determine whether error has been made out, and whether, if it has, this Court is able to make the finding sought. I shall proceed on the basis, favourably to the owners corporation, that there was error, and that it should be found that when Mr Balacco slipped and fell, the carpark was fully illuminated.

18. [35]

    The evidence of the experts was that when the lighting was fully illuminated, “the artificial light that was in the carpark was acceptable and within standard”. That is not to say it was brightly lit. Mr Strautins had visited the carpark and measured the light. His report disclosed that there was a light above the centre of the speed hump (it is visible on the second and third photographs reproduced above) which produced the result that the middle of the speed hump was better lit than its edges. His report stated that 5.15pm on 18 May 2023 was 15 minutes after sunset. At around that time, the light at the middle of the speed hump was measured at around 95-96 lux, while at the edge closest to Ms Balacco’s vehicle it was around 41-44 lux, and at the far end of the speed hump around 29-33 lux.

19. [36]

    To put those figures in context, Mr Strautins said that in accordance with AS/NZS 1680.2.1:2008 “Interior and workplace lighting, Part 2.1: Specific applications – Circulation spaces and other general areas”, the area where Ms Balacco fell was an aisle within an undercover carpark where on average a minimum of 40 lux is recommended for the area and no less than 20 lux for safe movement. He added:

Ground 2: Was the speed hump an “obvious risk”?

1. [37]

   An image from the CCTV taken minutes after Ms Balacco fell, and showing the area between the lift well and her parking space, is below. (More precisely, the following image is a frame from the extracts of the CCTV footage which had themselves been recorded on a mobile phone of the replaying of that footage.)

2. [38]

   Photographs (and, especially, the reproductions of photographs in appeal books) can contain obvious distortions of distance, colour and shape, and non-obvious distortions of distance, colour and shape: see the authorities in Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 at [15]. Thus it was common ground, and appropriately so, that the photographs were not a reliable indicator of the brightness of the carpark at the time. On the other hand, the following matters can reliably be derived from the photographic evidence.

   1. (1)

      The time stamp from the CCTV camera of 5.15pm is some evidence of the time of the incident. It accords with Ms Balacco’s relatively contemporaneous report of the incident on 7 June 2023 (“An incident occurred on Thursday 18 May 2023 at around 5:15pm …”). It is possible that the clock time was wrong, but there was no cross-examination of Ms Balacco or Mr Strum concerning the time.

   2. (2)

      At the left of the image is an ingress from the central core of the building where the lift shaft and fire-stairs are located, to the common property where vehicles and pedestrians can access parking spots. An image a few seconds later shows this more clearly:

   3. (3)

      It is clear enough that in May 2023 the raised concrete steps separating the pedestrian area near the lift well and fire-stairs from the flat passage for pedestrians and vehicles were marked by yellow paint.

   4. (4)

      It is also clear that the vertical edges of the concrete column at the boundary between the (slightly lower) level of the lifts and the fire-stairs and the (slightly higher) level of the passage for pedestrians and vehicles for access to the parking spots were marked by yellow paint or indicators.

   5. (5)

      Finally, returning to the first CCTV photograph, the speed hump on which Ms Balacco fell is at the top right. It is not painted yellow (as much had been admitted on the pleadings). The edge of the vertical concrete pillar at one end of the speed hump, and another nearby pillar, were both marked in yellow, in a fashion which it may readily be inferred matched the yellow on the corresponding concrete pillars near Ms Balacco’s vehicle which may be seen in Exhibit 1 (the first photograph above).

3. [39]

   Sections 5F, 5G and 5H provide:

4. [40]

   Part 1A of the Civil Liability Act requires for the purpose of every case a specification of the relevant “risk of harm”. The principles may be found in Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [49]-[52]. There are many cases where that is controversial, but this was not one. In the present case, the amended statement of claim pleaded the risk of injury as “tripping and falling on the subject unpainted concrete speed hump” and there was little dispute that that was the appropriate characterisation.

5. [41]

   There are three main consequences of a risk of harm being an “obvious risk”: there is the rebuttable presumption of awareness in s 5G, which may be relevant to contributory negligence; there is a qualified displacement of a duty to warn in s 5H; and there is a complete defence where the harm comes about from the materialisation of an obvious risk if there is a dangerous recreational activity in s 5L.

6. [42]

   Ground 2 of the appeal challenged the finding of the primary judge that the unpainted speed hump did not give rise to an obvious risk. The appellant’s further submission was that the effect of s 5H was to prevent any conclusion that there could be breach of duty by failing to paint the speed hump, on the basis that the painting amounted to a “warning”. That submission was supported by what was said by this Court in Council of the City of Sydney v Bishop [2019] NSWCA 157; 237 LGERA 200 at [10] (by way of reasoning in the alternative by Basten JA) and [28]-[29] (as one of three paths by which Macfarlan JA resolved the appeal), contrary to Brereton JA’s dissent at [60]-[61], and perhaps also by the carefully qualified ex tempore reasons in Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325 at [7]. While there is a sense in which painting the speed hump yellow does amount to a warning, it is not an especially apt word for paint which makes a feature of the surface more obvious than it otherwise would be. A car which breaks down on a busy road in daytime probably presents an obvious risk to drivers, but it is not clear to me that raising its bonnet or turning on its hazard lights is a “warning” for the purposes of s 5H, such that there can never be a duty to take either of those steps. It is not necessary to take these considerations (none of which was the subject of argument) any further, because as explained below, I have concluded that the premise is not made out.

7. [43]

   The critical facts are as follows. There were not speed humps everywhere in the carpark. The evidence was that there were precisely two, both as it happens near Ms Balacco’s parking spot. People walking on the sometimes flat, sometimes rising, concrete surface which twisted around the central core of the building did not have to be constantly conscious of obstacles underfoot. However, there were many potential hazards which were painted yellow, including the four concrete columns near the speed humps, the rise in the concrete through which a pedestrian would have to navigate to get to and from the lifts, and even the wheel stops at the rear of the parking spaces. In short, so far as the evidence disclosed, every irregularity in the concrete surface underfoot was painted yellow except the two speed humps.

8. [44]

   Her Honour identified eight matters at [171] of her reasons for concluding that the speed hump did not present an obvious risk. The owners corporation contended that most of these were wrong in law, and Ms Balacco made no effort to defend them. There is force in the owners corporation’s critique. The fact that Ms Balacco had rarely used the carpark, and was unfamiliar with it, and was not found to have been distracted by looking for her keys or her mobile phone are with respect irrelevant. Whether s 5F is satisfied is determined objectively: Council of the City of Greater Taree v Wells [2010] NSWCA 147; [2010] Aust Torts Reports 82-063 at [75]-[76].

9. [45]

   However, her Honour’s reasoning did include the following strands:

10. [46]

    There was no challenge to those findings, nor could there be. Taken together, and even assuming the carpark was fully illuminated, I think the unpainted speed humps were not “obvious risks”. Essentially that is because the painting of all irregularities save for the two speed humps took those speed humps outside the class of obvious risks. Common sense would suggest that a pedestrian’s attention would more readily be drawn to the painted areas; potentially diverting attention from unpainted areas.

11. [47]

    True it is that Ms Balacco had herself, that morning, driven over the speed hump before parking her car (and also over the other speed hump when reversing into the parking spot) and had walked over the speed hump when leaving her car. That does not make the risk presented by it one that is obvious. One reason is that the issue is objective, and must apply to the first-time user and the tenant who has parked her car in the same place for months or years. Another is that the myriad of impressions received by a person each day are readily forgotten; hence the utility of visual cues. A third is that a person parking in the spot who drove over the speed hump would have been concentrating on the position of the vehicle, and any others, as he or she navigated in reverse into the spot, rather than the speed humps. The fact that it was lit, and was large enough to be noticeable as it was driven over, does not stand in the way of this conclusion.

12. [48]

    This ground is not made out.

Grounds 3 and 4: Civil Liability Act, s 5B

1. [49]

   Ground 3 was that the primary judge erred in finding that it was irrelevant that there had been no reports of any prior incident, and in so finding her Honour failed to have any or proper regard to s 5B(2)(a) of the Civil Liability Act.

2. [50]

   Her Honour said that was “not relevant that there had been no reports of any prior incident”: at [124]. That reasoning if read literally cannot stand. However, the absence of prior reports is not determinative of the issue of breach, and it may well be that that was her Honour’s intended meaning. It is not necessary to take this any further, in light of what follows.

3. [51]

   Ground 4 was that the primary judge erred in finding that a reasonable person in the position of the owners corporation would have taken the precaution of painting the speed hump with a contrasting colour such that s 5B(1)(c) was satisfied, and ought to have found that the owners corporation was not negligent in failing to take such a precaution.

4. [52]

   Her Honour addressed what she styled the “real question” at [130], namely, “what a reasonable person in the circumstances in May 2023 would have done against the foreseeable risk of injury”. Her Honour added at [137]:

5. [53]

   It was said that the primary judge erred in failing to have regard to the mandatory consideration in s 5B(2)(a), namely, the probability that the harm would occur if care were not taken, and more generally to the fact that the carpark was not open to members of the public. It was said that for the same reasons that there was no breach of duty by not painting a kerb in Council of the City of Sydney v Bishop at [30], there was no breach of duty in not painting the speed humps in level 2 of the carpark. The owners corporation said that the risk was very low, such that it could not be said that a reasonable person in the position of the owners corporation would have taken the precaution of painting the speed hump. The fact that such a step “might” have been taken is not significant, as is emphasised by s 5C(b).

6. [54]

   Let it be assumed, favourably to the owners corporation, that there is error in the finding of breach made by the primary judge. The owners corporation said that in respect of the issue of breach, this Court was in the same position as the primary judge, and there was no need to remit the proceeding for a retrial. So much may be accepted.

7. [55]

   Carparks are hazardous places. The design of this carpark forced pedestrians to share the same path as vehicles. A moving vehicle could come from ahead or behind, and it could also come from a pedestrian’s side if was emerging from a parking space. This carpark was covered, and much less well lit than an outdoor carpark. There were also a large number of immobile hazards, in the form of concrete pillars, an inclined surface, and many obstacles. There were steps from the lift well to the pathway. There were raised concrete blocks to the side of some parking spaces, and to the rear of others. It is true that most pedestrians would not ordinarily traverse a path crossing the latter obstacles, although many would leave the lift well to the pathway. But the reason for mentioning these obstacles is that all of them were marked with yellow paint or other bright colours highlighting their existence.

8. [56]

   In contradistinction with the above, there were also two speed humps. They were unusual, in that this was not a carpark with speed humps everywhere to slow vehicles. They existed in only one portion of the carpark. And, uniquely amongst the obstacles and hazards presented by this carpark, they were not marked in yellow.

9. [57]

   The speed humps presented a readily foreseeable risk of tripping. The risk of harm from falling onto a hard concrete surface was plainly not insignificant. The likely seriousness of the harm was moderate. The burden of painting this potential hazard yellow, no differently from the dozens or hundreds of other obstacles in the carpark, was trivial. Doing so would also enhance the effectiveness of the speed hump as a measure to slow traffic ascending and descending the nearby ramp.

10. [58]

    It is true that the probability that the risk would manifest itself by causing someone to slip and injure himself or herself badly was very low. But precisely the same was true of every other potentially hazardous feature of the carpark – the concrete pillars and the steps connecting the pathway with the lift well.

11. [59]

    I conclude that a reasonable person would take precautions against the risk by painting both speed humps yellow, so that they were in the same position as all the other irregular surfaces and obstacles in the carpark. Why, it may be asked rhetorically, would a reasonable person in the position of the owners corporation paint all other hazards and leave two speed humps unpainted? As the primary judge noted, it is harder to see the two unpainted speedhumps when all other irregularities in the carpark were painted.

12. [60]

    I conclude that the primary judge reached the correct conclusion as to breach.

Ground 5: Causation

1. [61]

   Ground 5 was that the primary judge erred in finding that the absence of contrasting paint on the speed hump was a necessary condition of the occurrence of Ms Balacco’s injuries such that s 5D(1)(a) was satisfied, and ought to have found that the absence of contrasting paint on the speed hump was not a necessary condition of the occurrence of her injuries.

2. [62]

   After reproducing ss 5D and 5E, and reciting passages from Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 and Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5, the primary judge addressed factual causation at [144]-[146] thus:

3. [63]

   The owners corporation submitted, correctly, that this finding was affected by the erroneous finding concerning adequate lighting. It made the following further submission concerning the effect of painting the speed hump:

4. [64]

   The burden of showing that, had the speed hump been painted, Ms Balacco would not have slipped and fallen upon it, rests upon her. Unpainted, the speed hump presented a hazard. Once painted, the hazard was reduced, but it remained a hazard. It is certainly possible that Ms Balacco would nonetheless have slipped and fallen, even if the speed humps had been painted. But that was less likely to occur if the speed hump was painted yellow, no differently from all of the other obstacles in the carpark which were painted yellow and which Ms Balacco negotiated without incident.

5. [65]

   The question is hypothetical, as many questions of causation are. It is necessary, in order to resolve the issue presented by s 5D, to determine what would have occurred if a counterfactual assumption were made. However, Ms Balacco need only establish that it was more probable than not that she would not have slipped and fallen had the speed hump been painted. I am satisfied that that is the correct inference to draw.

Ground 6: Contributory negligence

1. [66]

   Ground 6 alleged error by the primary judge in finding no contributory negligence on the part of Ms Balacco. The dispositive reasons of the primary judge were as follows:

2. [67]

   There were said to be two errors in this reasoning. The first was related to ground 1, insofar as the reasoning was infected by her Honour’s view that the lighting had not turned on. The second was that, even so, having regard to the location and size of the speed hump, and the fact that she had driven and walked over it earlier that day, she either was or ought to have been aware of it and thus was failing to keep a proper lookout for her safety. The fact that, in a sense, Ms Balacco “knew” the speed hump was there (from having driven over it that morning), which is relevant to assessing whether the standard in s 5R has been met does not alter my conclusion.

3. [68]

   The first error may be acknowledged, but it is immaterial. The ultimate question is whether the evidence sustained a finding that Ms Balacco was not keeping a proper lookout for her safety. For similar reasons to what has already been said as to obvious risk and breach, I fail to see a basis on which to conclude that Ms Balacco was not doing so. The actual defences advanced at trial were rejected, and there is no appeal from that rejection.

Grounds 8 and 9: Damages

1. [69]

   Grounds 8 and 9 (there was no separately numbered ground 7) challenged two aspects of her Honour’s assessment of damages. Ground 8 was that her Honour awarded the sum of $75,000 (plus a further sum of $10,500 for loss of superannuation) for future economic loss and ought to have made no allowance for future economic loss. Ground 9 was that her Honour awarded the sum of $49,485.70 for future domestic assistance (on a commercial basis) and ought to have made no allowance for future domestic assistance (whether on a commercial or gratuitous basis).

2. [70]

   The limited grounds of challenge make it unnecessary to summarise the evidence concerning the ongoing pain and medical expenses which Ms Balacco suffers.

3. [71]

   Concerning future economic loss, Ms Balacco had taken sick leave from her existing employment. She returned to work in July, while her employer was on holidays. A locum said she could work four days a week. However, her relationship with her employer deteriorated on his return, because (so she said) she could not work as fast and operate the computer mouse as quickly. She found another full-time job in the same building as a medical receptionist, but that doctor said it was not feasible to have two full-time people working in reception, and reduced her hours to two days a week. She has found other employment, including full-time employment for a period of six to eight weeks while a receptionist was on leave.

4. [72]

   The primary judge found that she liked her work and intended to keep working.

5. [73]

   Her Honour’s reasoning on future economic loss was as follows:

6. [74]

   The owners corporation submitted that the reasoning neither referred to nor considered s 13 of the Civil Liability Act, and, further, any award of future economic loss was inconsistent with the modest award of past economic loss, her age of 67 by the time of the hearing, and her actual return to full-time employment, at least for some periods of time, after the accident. The owners corporation submitted that Ms Balacco had not established a basis for any award of future economic loss.

7. [75]

   No substantive submission was made against this by Ms Balacco’s counsel.

8. [76]

   The owners corporation’s submissions should be accepted. Her accident had demonstrably not prevented her seeking and obtaining full-time employment. She had confirmed, in evidence-in-chief and in cross-examination, that she was ready, willing and able to work full-time. It is true that her age – substantially past the retirement age – might make it harder to obtain full-time employment, but that is a consequence of her age, not the accident itself.

9. [77]

   Section 13 does not stand in the way of an award of damages by way of a buffer. Nonetheless, it remains necessary to state the percentage probability of the assumptions on which the award was based, and adjust the amount awarded by reference to that probability. Further, s 14 requires the adoption of a 5% discount rate. The reason for ss 13 and 14 is tolerably clear: it is to mandate a measure of transparency in the calculation of future economic loss. The conclusion reached by her Honour is, with respect, quite opaque. Her Honour found that there was a chance that Ms Balacco would have worked until she was 70. It is entirely unclear what likelihood was attributed to that chance. Then that chance was found to have been diminished by reason of the accident. Again, the extent to which that was so is entirely opaque. And were it not opaque, it would be necessary to reconcile the finding with what had in fact happened since the accident, namely, that she had been able to find full-time employment on not one but two occasions, and her acceptance in cross-examination that her current position, which was less than full-time employment, was “not actually directly as a result of the injury, it’s a result of [the later doctor who employed her] reducing her hours”. It is to be borne in mind, as Macfarlan JA said in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [72] (speaking of s 126 of the Motor Accidents Compensation Act 1999 (NSW) which is materially identical to s 13) that “[t]he award of a buffer that is not supported by an explanation of how and why the amount was arrived at should remain a last resort where no alternative is available”; to similar effect McColl JA said at [9] that “recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer”.

10. [78]

    Separately from the above, the fact that the award of past economic loss was $19,707.07 plus superannuation, made slightly more than two years after the accident, while the future economic loss, which is subject to vicissitudes and discounts, was $75,000 plus superannuation, based on a period of only three years, compels the conclusion that something has gone awry with the assessment.

11. [79]

    There was no notice of contention, or indeed any submissions in this Court, orally or in writing, contrary to those put forward by the owners corporation. In those circumstances, this ground is made out.

12. [80]

    Her Honour’s reasoning on future domestic assistance was found in a single paragraph:

13. [81]

    The difficulty with her Honour’s reasons is that the evidence was not merely a preference to avoid commercial care. It was that Ms Balacco’s sister maintained that she would continue to provide care even if damages were awarded for commercial care. This head of damages (like most awards of damages in tort) is compensatory. On the evidence adduced at this trial, it cannot stand. An award of damages for future domestic assistance on the facts of this case must be set aside.

14. [82]

    Grounds 8 and 9 are made out.

Conclusion and orders

1. [83]

   The result is that the appeal should be allowed in part. The owners corporation continues to be liable to Ms Balacco, but in a lesser amount. The judgment in the amount of $385,484.76 should be set aside and replaced with a judgment in that amount less the amounts awarded for future economic loss (including superannuation) and future domestic assistance (ie $385,484.76 less $75,000 less $10,500 less $49,485.70 which is to say $250,499.06), plus interest for the period from 23 July 2025 until today, for the reasons explained below.

2. [84]

   Interest is complicated by the fact that, by orders made by consent on 20 August 2025, execution of the judgment was stayed. My preliminary view is that the benefit gained from the stay of execution of the judgment should not disentitle Ms Balacco from post-judgment interest on the judgment to which she has now been found to be entitled, and should continue to run thereafter. However, the owners corporation should be entitled, if it pays the judgment debt within 28 days, to the usual position under s 101(3) of the Civil Procedure Act 2005 (NSW), which would confine the interest to the period from 23 July 2025 to date.

3. [85]

   The result is that the appeal should be allowed, orders 1 and 2 made on 23 July 2025 should be set aside, and, in lieu of order 1, judgment be entered against the owners corporation in the amount of $250,499.06, such judgment being taken to have effect from 23 July 2025 for the purposes of calculating interest, and with provision being made under s 101(3). The parties may, if they wish, be heard further on those orders.

4. [86]

   As presently advised, the owners corporation’s partial success on appeal does not provide a reason to depart from the ordinary rule that costs at trial should follow the event. Ms Balacco still emerges with a substantial judgment in her favour. However, there was a special costs order made after the trial, consistently with there having been offers of compromise or Calderbank letters. It is unclear whether, in light of the reduced judgment to which Ms Balacco is entitled, the costs discretion at first instance should be exercised differently. The parties are entitled to be heard on that point.

5. [87]

   My preliminary view is that, both parties having enjoyed a measure of success in this Court, there should be no order as to costs in this Court. Once again, the parties are entitled to be heard on that point.

6. [88]

   For those reasons, I propose the following orders:

7. [89]

   FREE JA: I agree with Leeming JA.