Obviously Obvious: Obvious Risks, Policy and Claimant Inadvertence

Abstract

The relevance to negligence liability of the obviousness of a risk of injury has been the subject of a case law "explosion" in recent years. This article analyses the application of this concept, at common law and under the tort reform legislation, to an occupier's liability for failing to warn of risks arising from premises or the activities conducted upon them. Particular regard will be had to: the policy underpinning this area of law; the High Court’s decisions in Vairy v Wyong Shire Council; Mulligan v Coffs Harbour City Council; and more generally, Neindorf v Junkovic; and the interaction between obvious risk and claimant inadvertence in determining breach and standard of care. Whilst the legislative reforms' impact is investigated throughout, the article concludes by arguing, with reference to the term's legislative definition and the decisions in Dederer v Roads and Traffic Authority, that the difference between the significance of "obviousness" at common law and under the reforms is not as great as the legislation suggests. Furthermore, similarly to the common law, whether a risk is obvious, and the relative weight afforded to the factors impacting upon this assessment (such as the potential for claimant inadvertence), remains uncertain and hard to predict.