Catchwords:

NEGLIGENCE — breach — foreseeability of risk — whether height differential between surfaces in a playground gave rise to a reasonably foreseeable risk of harm — whether height differential was readily discernible — where the Australian playground maintenance standards applied — where council was independently advised to take steps to mitigate risk — where council did not take reasonable precautions advised

NEGLIGENCE — breach — obvious risk — whether height differential between different surfaces in a playground was obvious — assessment to be made in all the circumstances — where it was foreseeable that playground users would be distracted by children

NEGLIGENCE — causation — factual causation — whether council’s failure to top up mulch in playground to even out the surfaces caused the respondent’s injury

NEGLIGENCE — duty of care — formulation of risk — whether primary judge erred in identifying the risk of harm as the risk of falling and sustaining injury when walking between two surfaces in a playground — whether the risk of harm could be reformulated on appeal — necessary specificity of formulation of risk of harm

APPEALS — point not taken below — where matters raised on appeal were not raised before the primary judge — where council’s case on appeal differed substantially from the way in which it was conducted at first instance — extent to which parties are bound by the way in which their case was conducted at first instance