Salman also ascribed significant weight gain to her injury. But during cross-examination, she was presented with evidence 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 the accident had “prevented her from pursuing that particular endeavour”.
Hornsby Shire Council appealed on eight grounds. But in a judgment on Thursday, the NSW Court of Appeal ruled two-to-one in Salman’s favour and dismissed the appeal, ordering the council to cover Salman’s costs.
Appeal judge Christine Adamson said while the height difference between the two surfaces may have been noticeable to Salman if she were paying attention, that did not make it “readily discernible”.
“For example, a hole in a floor may be obvious but where it is in an area where people, whether or not familiar with the location, regularly pass, such as a workplace or a shopping centre or public street, allowance must be made for inadvertence,” 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 the council’s appeal should have been upheld. He found there was a “total absence of evidence” this risk had ever materialised in other playgrounds designed in the same way, 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 presently being evaluated by our legal team. We will be prepared to address the matter in detail once we have received 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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