Welcome to our General Insurance Insights Newsletter, bringing you the latest case notes on key judgments from April 2026 affecting general insurers in Australia.

Woolnough v Whittlesea City Council [2026] VSC 190

The plaintiff was a 23 year old self employed carpenter. The first defendant was the local Council, who owned and occupied a cricket oval in Doreen. The second defendant was a cricket club which had exclusive access to the oval and cricket nets throughout the season.

On 15 February 2022, the plaintiff, whilst at cricket training, attempted to jump over a boundary fence between the oval and the cricket nets, when he caught his foot, lost his balance and fell, suffering catastrophic spinal injuries as a result.

The Court found the first defendant had breached its duty of care by failing to install an additional pedestrian gate at a point of between the cricket nets and the cricket oval. In doing so, the Court had regard to the following:

1. There was an acknowledged risk of people repeatedly jumping over a fence like the one in issue around a sports oval.
2. For that reason, and given the absence of a nearby pedestrian gate between the cricket nets and the oval, it was foreseeable that most people using the cricket nets would climb or jump the fence rather than go out of their way to use one of the other pedestrian gates.
3. The second defendant had asked the first defendant to install a gate in a meeting prior to the incident.
4. The fact that the first defendant installed a new gate after the incident evidenced that the installation of such a gate was reasonably possible and could be done at a modest cost (ie $1,500).

The second defendant was found to have discharged its duty of care by informing the first defendant that players were climbing and jumping over the fence, and requesting that first defendant install a gate. Further, the Court found the second defendant was not reasonably required to direct adult players, including the plaintiff, to use a gate rather than jump over the fence.

The Court rejected the first defendant’s voluntary assumption of risk defence. It was not satisfied that the plaintiff appreciated that he was exposing himself to a risk that he might become quadriplegic or very seriously injured particularly in circumstances where he had climbed over the fence many times without issue. A finding of contributory negligence was, however, made against the plaintiff for vaulting the fence at speed and a reduction of 20% was applied

Damages of $15.2 million were awarded against the first defendant.

Click here to view the full case.

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

On 18 May 2023, the respondent sustained serious injuries after tripping over a concrete speed hump in a multi-storey carpark in a mixed commercial and residential building in Bondi Junction. The carpark was common property owned and controlled by the applicant, an owners corporation.

At trial, the primary judge found in favour of the respondent. Her Honour concluded that the carpark was inadequately lit, the speed hump did not constitute an obvious risk, and applicant breached its duty of care by failing to paint the speed hump. Judgment was awarded to the plaintiff for $385,484.78.

The applicant appealed the decision, contending that the trial judge erred in her findings in relation to the lighting and that the speed hump was not an obvious risk. It also argued that the plaintiff was contributorily negligent, including because she had driven and walked over the speed hump earlier that day. The appeal also challenged each aspect of the damages award.

The Court of Appeal allowed the appeal in part. The Court held that the primary judge erred in finding that the carpark lighting was inadequate and proceeded on the basis that the lighting was adequate at the time of the incident. Despite this, the Court upheld the trial judge’s findings on liability. It confirmed that unpainted speed humps were not an obvious risk, emphasising that there were only two speed humps in the carpark, neither was painted, and all other potential hazards were clearly marked in yellow. The Court further held that the absence of prior reported incidents was not determinative of the applicant’s breach of duty and that painting the speed hump would have adequately reduced the risk of injury. For similar reasons to those relevant to the Court’s findings on obvious risk, the trial judge’s rejection of the applicant’s contributory negligence was maintained.

In relation to damages, the applicant successfully challenged the trial judge’s awards of future economic loss and future domestic assistance, and damages were reduced to $250,499.06.

Click here to view the full case.

Orange City Council v Willis [2026] NSWCA 51

On 9 July 2020, the respondent tripped and fell on a concealed hole in a grass verge, suffering injuries to his right shoulder. The hole had been left after a parking sign was removed. The applicant was the local government authority with control over and responsibility for the relevant road, footpath, and grass verge.

At first instance, the primary judge found the applicant negligent and awarded damages of $133,751.

The applicant appealed on the basis that the primary judge erred in making key factual findings, including that the defendant had been notified of the fallen sign and resulting hole and was negligent in failing to address it. The applicant further argued that it was immune from liability under ss43A (in relation to a failure to exercise statutory powers) and 45 (in relation to a failure to carry out road work) of the Civil Liability Act 2002 (the Act).

The Court of Appeal rejected the appeal and upheld the finding of the primary judge on the basis that:

1. The applicant had actual knowledge of the particular risk posed by the hole following an oral report made by a local business owner.
2. In relation to s45 of the Act, remediation of the hole was not ‘road work‘, but work connected with a traffic control facility.
3. Section 43A of the Act could not be relied on, as the alleged negligence consisted of a failure to take simple and practical steps to address a known hazard, such as filling the hole, covering it, or providing a warning. Those steps did not involve the exercise of a power of a kind only exercisable by a public authority under statute.

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MacLean v Richmond Valley Council [2026] NSWCA 6

On 8 March 2023, the applicant tripped against a ‘raised lip’ on a concrete footpath near her home when returning from her regular early morning walk in Casino and suffered injuries as a result. Those injuries involved an aggravation of the applicant’s pre-existing asymptomatic arthritic knee condition, which then became symptomatic, resulting in her requiring bilateral knee replacements.

The respondent was the Council for the municipality in which the incident occurred. The ‘raised lip‘ (which was measured at approximately 23mm) had been identified during a 2017 inspection by the respondent and was classified as a medium priority risk, which, according to the respondent’s internal policies, was required to be addressed ‘as resources permit but within 3 months’.

At first instance, the primary judge found that there was no duty of care owed by the respondent, because the applicant failed to exercise reasonable care in relation to the trip hazard, being the height difference between the footpath and the concrete sections (which created the ‘raised lip’). Further, the trial judge found that, even if a duty of care was owed, it was not breached and assessed the applicant’s contributory negligence, on a hypothetical basis, at 50%.

The applicant appealed the decision on all issues.

The Court of Appeal accepted that the primary judge had erred in the characterisation of the duty of care owed by the respondent. By finding that the duty owed was to take reasonable care to avoid foreseeable risk of injury to pedestrians exercising reasonable care for their own safety, the primary judge conflated the relevant duty of care with contributory negligence and effectively found that no duty of care was owed if the applicant was not exercising reasonable care. No such condition applied at law.

However, the primary judge’s findings on breach of duty were upheld. To that end, the Court of Appeal commented that:

1. The respondent’s ‘self-imposed’ policy for addressing the ‘raised lip‘ identified in 2017 did not determine the legal standard of reasonable care that was required in relation to such a tripping hazard. The policy was aspirational, not obligatory.
2. Minor height differentials are an expected feature of footpaths. Further, it is reasonable to expect that pedestrians will take reasonable care for their own safety, including in looking where they are going and in avoiding obvious hazards, in respect of which the ‘raised lip’ was one. In those circumstances, the probability of harm in relation to the relevant tripping hazard was low, as evidence by the lack of other complaints or incidents over a six year period.
3. When that low probability of harm was balanced against the burden of taking precautions to avoid the risk of harm (ie by grinding down the height differential), the Court of Appeal was not persuaded that the respondent had failed to exercise reasonable care.

Otherwise, the Court of Appeal found there was no error in the (hypothetical) finding of contributory negligence on the basis that the applicant was not paying attention to the surface of the footpath, particularly in lower light conditions, and having regard to her familiarity with the area (ie the footpath was close to her home and she walked on it daily).

The appeal was dismissed with costs.

Click here to view the full case.

Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906 [2026] QSC 84

The applicant was the body corporate for a building located at 19 Orchid Avenue, Surfers Paradise. It alleged that water and contaminated material leaked from the neighbouring property at 17 Orchid Avenue, which was owned by the respondent, through a basement retaining wall and caused physical damage. The applicant alleged the leak was caused by an overflowing grease trap and blocked stormwater drains servicing a restaurant operating from the respondent’s property. The respondent denied liability and brought a counterclaim seeking payment of money owed under a deed previously executed by the parties to resolve the leakage issue and reimbursement of joint expert costs associated with investigating the source of the leak.

In relation to the applicant’s claim, the Court was required to determine:

1. whether the basement retaining wall at 19 Orchid Avenue was designed to be waterproof;
2. whether water or contaminated material had entered the applicant’s basement and, if so, the source of that ingress; and
3. whether the respondent was liable in nuisance and/or negligence.

The Court dismissed the applicant’s claim. Its findings were largely based on the expert evidence tendered by the parties, including that of various engineers (both civil and hydraulic), a plumber, an environmental consultant a site contamination specialist.

The Court’s principal findings were that the basement retaining wall at 19 Orchid Avenue was designed and constructed as a ‘wet wall‘ and was not intended to be waterproof. Further, while water did enter the basement during periods of heavy rainfall, the Court was not satisfied that any water or contaminated material from the respondent’s property had passed through the retaining wall. Rather, the ingress was caused by a combination of heavy rainfall, limited stormwater capacity at 17 Orchid Avenue, additional runoff from the southern wall of 19 Orchid Avenue and the ‘wet wall‘ design in the applicant’s basement.

Those matters, when combined with evidence that water ingress would still have occurred regardless of whether the respondent had allowed kitchen waste to discharge into the stormwater drainage system at its property (which, it was alleged, had blocked the drains) and the finding that the respondent was not under any positive obligation to upgrade that system of drainage or the grease trap, led the Court to conclude there was no unreasonable interference with the applicant’s land by the respondent (to support the applicant’s claim in nuisance). By extension, no breach of duty was made out.

The Court otherwise ordered the applicant to pay its share of the joint expert costs.

Click here to view the full case.

This article was written by Ashley Harding, Partner, Madeleine Dashiell, Solicitor and Claudia Albert, Solicitor.