A new high bar set for Owners Corporations

The recent decision in The Owners – Strata Plan No 31337 v Balacco [2026] NSWCA 50 is a timely reminder to occupiers of consistency in hazard marking matters. In this case, painting every obstacle except the speed hump in a carpark created a trap and the speed hump was not an obvious risk.

Background

Ms Balacco was injured in a trip and fall on one of two unpainted concrete speed humps in the undercover level 2 carpark of a commercial/residential building in Bondi Junction, shortly after 5.15pm as she walked back to her car. The owners corporation controlled the common property, including the carpark. Although Ms Balacco had driven over (and earlier walked across) the hump that day, she was not a frequent user of the carpark and said it was “dark‑ish” and the hump was unmarked. However, other tripping hazards in the carpark were painted yellow, but not the speed hump (which was painted after the incident).

Decision

The trial judge found in favour of Ms Balacco, and this largely reflected a finding that the lighting was inadequate.

Appeal

The owners corporation appealed arguing that the lighting evidence had been misconstrued by the trial judge and that, if the speed hump was an obvious risk, then there was no duty to give warning of it (by painting it). The Court of Appeal agreed that the lighting was adequate, but still dismissed the appeal. It held the speed hump was not an obvious risk, and discussed the intention behind the duty to give a warning within the meaning of section 5H of the Civil Liability Act 2002 (NSW).

The Court stated, at [42]:

“While there is a sense in which painting the speed hump yellow does amount to a warning, it is not an especially apt word for paint which makes a feature of the surface more obvious than it otherwise would be. A car which breaks down on a busy road in daytime probably presents an obvious risk to drivers, but it is not clear to me that raising its bonnet or turning on its hazard lights is a “warning” for the purposes of s 5H, such that there can never be a duty to take either of those steps”.

The failure to paint the speed hump was still a breach of duty by the owners corporation because “so far as the evidence disclosed, every irregularity in the concrete surface underfoot was painted yellow except the two speed humps”. This was despite the carpark being a private carpark, accessible to tenants only, with no history of similar incidents or complaints, and the relevant Australian Standards not requiring speedhumps to be marked, at the time of installation. Causation was established on the basis that painting the speed hump yellow would likely have reduced (even if not eliminated) the tripping hazard and it was more probable than not the fall would have been avoided.

No contributory negligence was found as the court accepted the Plaintiff was keeping a proper lookout.

The Court of Appeal did uphold the defendant’s appeal ground on damages, that the trial judge had overcompensated the 67-year old plaintiff by allowing $85,000 for future economic loss and around $50,000 for future domestic assistance. The Court held there was no basis for either award and reduced the damages accordingly.

Implications

This decision raises the bar for Owners Corporations and controllers of carparks, alike. Where other ‘irregularities’ in carparks are identified with paint markings, a speed hump may not be found to be an obvious risk unless similarly identified. If an occupier is going to create any paint markings as warnings, it should be prepared to mark all potential hazards.

Gilchrist Connell acted for the appellant.