Salman also attributed significant weight gain to his injury. But during cross-examination, she was presented with evidence that her weight had not changed between medical appointments in October 2019 and August 2021. She then told the court she had tried to lose weight but that the accident “had prevented him from making this particular effort.” “.
Hornsby Shire Council appealed on eight grounds. But in a ruling on Thursday, the NSW Court of Appeal ruled two to one in Salman's favor and dismissed the appeal, ordering the council to cover Salman's costs.
Appeal judge Christine Adamson said that while the difference in height between the two surfaces might have been noticeable to Salman if he was paying attention, it did not make it “readily discernible”.
“For example, a hole in a floor may be obvious, but when it is in an area where people pass through, whether or not they are familiar with the location, such as a workplace, a shopping center or a public street, it has of inadvertent consideration,” Adamson found.
“It is not enough to conclude that the hole or other hazard would be obvious to someone paying close attention.”
Dissenting Judge John Basten argued that the council's appeal should have been upheld. It found there was a “total absence of evidence” that such a risk had ever materialized at other similarly designed playgrounds, and Salman never proved the council had breached a duty of care.
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Hornsby Shire Council said: “This 57-page ruling, made at 10.30am this morning, is currently being assessed by our legal team. We will be prepared to address the matter in detail once we receive further advice.”
The council is also weighing legal action over the state government's decision to demand repayment of a $36 million grant for a park project. The money came from the previous coalition government's controversial Stronger Communities Fund, later the subject of scathing findings by the NSW Auditor-General.
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