What is an obvious risk?

• In NSW a defendant will not be liable for harm that occurred as a result of an obvious risk.
• An obvious risk is a risk that a reasonable person in the plaintiff’s position would have known about. It includes risks that are common knowledge even if they have a low chance of happening or are effectively invisible (such as the risk of being pulled out to sea by a rip if you swim outside the flags at a beach).
• Plaintiffs in a negligence claim are presumed to be aware of obvious risks of harm unless they can prove on the balance of probabilities that they were not aware of the risk. Awareness includes a general knowledge of a risk of the type or kind rather than requiring that the plaintiff be aware of exact nature of the risk that eventuated.
• For example a plaintiff who is injured crossing a major road would be presumed to have been aware of the risks and required to take reasonable care for her own safety. If she was crossing behind an auto-transport truck and a poorly secured car rolled backwards off the truck and ran her over she would still be presumed to have known that crossing a major road gave rise to the obvious risk of being run over even though she could not have foreseen the exact manner in which that risk occurred. Her awareness of the risk of harm would go towards a calculation of contributory negligence that would be weighed against the truck driver’s negligence in not ensuring that his load was properly secured.