Annotated Civil Liability Act 2002 (NSW)

The respondent was hit and seriously injured during a motorcycle race training circuit. He brought proceedings seeking damages for breach of an implied warranty and, in the alternative, relied upon a cause of action in tort. The contractual claim was successful.

Pursuant to s 5A(1), Part 1A applies to any claim for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Therefore, no matter how the claim is framed, Div 5 of Part 1A can be engaged in respect of claims in contract. [20] [86]

High Court cases cited in discussion:

Insight Vacations Pty Ltd v Young [2011] HCA 16; (2011) 243 CLR 149

The respondent’s radiologist negligently failed to diagnose an aneurysm which later ruptured during an operation. On appeal, general observations about the language of s 5A were critical to the interpretation of ss 5D and 5I.

The reference to “negligence” in s 5A is not a reference to a tort, but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute of otherwise. When the statute is directed to a “duty of care”, it is confined in its operation to causes of action in respect of which duty of care is an element. When the Act is directed to tort, it says so. But where the Act provides that a person “is not negligent” (s 5B), “is not liable in negligence” (ss 5I and 5L), or “does not incur a liability in negligence” (s 5O), then it is directed to any claim for damages for harm resulting from a failure to exercise reasonable care and skill. The effect of s 5A is therefore that Part 1A applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill. [39]-[41]

The appellant, Ms Collins, was driving along a highway. She turned a long bend in the road and was confronted with a line of stationary vehicles backed up from an accident between two vehicles. To avoid a collision with the rear-most vehicle, Ms Collins steered her vehicle up the road embankment, causing her car to overturn and suffering injury. Ms Collins commenced proceedings against the third-party insurer of one of the drivers in the original accident. The primary judge held that the insurer was not liable because Ms Collins’ injuries did not result from a “dangerous situation caused by the driving of the vehicle” within the meaning of s 3A(1)(d) of the Motor Accidents Compensation Act 1999 (NSW). Ms Collins appealed that decision. The Court of Appeal allowed the appeal.

On s 5B: Section 5B(1)(b) does not set a high threshold for what is a “not insignificant” risk. The provision sets “a slightly more demanding standard” than the “undemanding” test at common law of the risk being real and not far-fetched or fanciful: [35]-[36]. This “not particularly demanding” test was readily met here: [37], [122], [130]-[132].

There could be no dispute that a reasonable person in the position of the insured driver would have taken precautions to avoid causing the risk of harm at issue: that was because foresight is not required of the precise manner or character of the risk of harm; the distance in space and time between the original accident and Ms Collins’ accident had no real relevance to the likelihood of the risk; and a risk may have a low likelihood of occurrence but still be characterised as not insignificant,

The relevant precautions were the same precautions the insured driver was required to take to avoid causing the original collision. The respondent admitted that the insured driver had breached his duty to the occupants of the car with which he collided. Consequently, breach of duty was made out: [38]-[42], [134]-[137].

On s 5R: Contributory negligence must be assessed according to the standard which would apply if the plaintiff were the defendant, under s 5R(1).  Ms Collins was found to be 20% contributorily negligent because the vehicle behind her was able to stop in time and avoid a collision: [142]-[145].

NSWCA decisions referred to in discussion:

Bunnings Group Ltd v Giudice [2018] NSWCA 144

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

Prouten v Chapman [2021] NSWCA 207

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Shaw v Thomas [2010] NSWCA 16

Sibraa v Brown [2012] NSWCA 328

Stenning v Sanig [2015] NSWCA 214

Stojan v Kenway [2009] NSWCA 364

High Court decisions referred to in discussion

Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2022) 399 ALR 535; [2022] HCA 11

Ms Powell injured her back when lifting a 25kg weight plate from the floor to replace it on the rack, in a gym operated by JFIT Holdings Pty Ltd (“JFIT”). The weight plate had been left on the floor by another gym user. While it was a rule of gym membership that users put away their weights after use, that rule was not enforced, with equipment often left out to be put away by subsequent gym users. This was known to be particularly problematic between 3pm and 5pm on weekdays, the period following which Ms Powell was injured. The primary judge, rejecting defences of contributory negligence, obvious risk and waiver, awarded Ms Powell damages for negligence. JFIT appealed, arguing that the primary judge failed to properly identify the risk of harm for the purposes of s 5B. The primary judge formulated the relevant risk of harm as including “the risk of injury from lifting heavy weight plates from the floor in the course of undertaking housekeeping activity as distinct from undertaking an exercise regime, where those weight plates had been left strewn there in circumstances in which gymnasium staff had not taken steps to inspect the area, collect and appropriately store those weights”. The Court of Appeal dismissed the appeal.

On s 5B: The primary judge’s formulation was unduly narrow, focusing purely and precisely on the circumstances in which Ms Powell suffered her injury: [35]. However, the proposed alternative formulation – as “the risk of suffering injury whilst lifting up a weight and putting it away” – was not shown to yield any different result: [32]-[33]. The risk of harm, however formulated, was not insignificant. That standard, involving a combined evaluation of the significance of potential injury and the likelihood of its occurring, is not particularly high: [39].

Ms Prouten was injured while delivering mail on a motorcycle when she collided with an extender bed left protruding from the rear of the Chapmans’ caravan, which was parked on the nature strip in front of their property. Ms Prouten’s claim was rejected, inter alia, on the basis that she had not established a breach of the Chapmans’ duty of care. Ms Prouten appealed, and the Court of Appeal by majority dismissed the appeal.

On s 5B: The obviousness of the caravan to anyone using the right of way made the risk of harm for the purposes of s 5B a very specific one. As the primary judge found, the risk was that “a person travelling only from east to west, and only on the nature strip, and only at a speed at least somewhat above walking pace, and only following a route that led him or her around the caravan as opposed to past it, could collide or nearly collide with the stationary bed, and suffer some injury as a result”. Though the degree of generality or specificity with which a risk of harm is specified may be complex and contestable, in this case there were very few ways in which a stationary unconcealed object could cause harm to a plaintiff and thus there was no error in the primary judge’s very specific formulation: [21]. The duty owed to a motorist must account for drivers taking reasonable care for their own safety. With this in mind, it may be doubted that the owner of a large, highly visible and stationary object into which a moving vehicle collides is guilty of negligence: [22].

Though the test in s 5B(1)(b) is more demanding than that of a risk that is not far-fetched or fanciful, the difficulty in formulating, prospectively, a use of the nature strip likely to result in injury as a result of the defendants’ conduct speaks against a finding that the risk was not insignificant: [24]. For the purposes of s 5B(1)(c), the law of negligence must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community, as holding defendants to higher standards can only bring the law of negligence into disrepute: [25].

The plaintiff, given the pseudonym PWJ1, commenced proceedings against the State of New South Wales claiming damages for physical and sexual assault. The plaintiff subsequently sought to make numerous amendments to his statement of claim, including the joinder of two further defendants, the Anglican Home Mission and the Salvation Army, each of which was responsible for one of the various institutions in which the plaintiff alleges that he was abused. The judge, in dismissing the notice of motion seeking to join the additional defendants and to rely on a further amended statement of claim, discussed the principles relevant to pleadings of negligence, in particular in relation to the requirements of s 5B of the Civil Liability Act.

On s 5B: The risk of harm for the purposes of s 5B is an essential element of liability in negligence and needs to be specifically formulated and pleaded: [57]-[67]. Section 5B(1) sets out the three separate elements which must be made out to establish a breach of duty, namely foreseeability of harm, probability of harm and reasonableness of precautions. Though these elements are often conflated in the common law phrase “reasonable foreseeability”, the Civil Liability Act makes clear that each must be addressed separately: [68]-[72].

With respect to s 5B(1)(a), a plaintiff must prove and establish that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the prior behaviour of an institution with respect to similar behaviour by the perpetrator or even another perpetrator, common knowledge and experience of others in the similar position of the defendant, an accumulation of complaints being made, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening in the application of common sense: [75].

With respect to s 5B(1)(b), the following principles are to be borne in mind:

(a) the assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;

(b) the phrase “not insignificant” is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;

(c) the phrase “not insignificant” is intended to refer to the probability of the occurrence of the risk;

(d) in the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may (but does not necessarily), reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning; and

(e) whether a risk is “not insignificant” must be judged from the defendant’s perspective and must be judged on a broader base than a mere reductionist mathematical formula: [81].

Section 5B(1)(c) concerns the conduct of a reasonable person and is the element that perhaps most closely reflects the common law: [82].

In 2011 a five-year-old child was injured by falling through the railing of the Coffs Harbour Jetty onto the hard sand below. There were large gaps between the railings, with no mesh infill or wiring. A sign at the entrance to the jetty warned that “USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL”. The jetty had been redeveloped by the State Government, with the Council’s involvement, before its opening as a public walkway in 1997. When it was handed over by the State Government to the Council in 2002, the State Government advised the Council that the railing complied with relevant Australian building standards at the time of its redevelopment. However, in the years preceding the accident in 2011 the council had been aware of a number of incidents involving children falling or nearly falling from the jetty but had taken no action.

On s 5B: although heritage considerations contributed to the s 5B evaluation, it was difficult to see how such considerations would preclude installing wiring or a mesh infill on the railing. The representation by the State Government to the effect that the jetty complied with relevant building standards was not to the point: such standards may inform but cannot dictate the standard of reasonable care in a particular case. What is a reasonable response, in terms of what precautions a reasonable person in the position of the Council would have taken, will vary over time depending on the known history of a site and the risks that have manifested themselves: [106]-[110].

Mr gray injured his back lifting a box of water at a depot operated by Coles. It was common ground that he could not reach the box of water towards the back of the pallet without putting at least one foot on the pallet. Mr Gray accepted that he had made the mistake of “overreaching” for the pallet, explaining that he was concentrating on not hitting his head on the racks above. The primary judge found against Mr Gray on the question of liability.

On s 5B: It was not enough for Mr Gray to allege that Coles failed to provide a safe system of work. Mr Gray bore the onus of proving what Coles could, and should, have done which would have avoided the injury: [60].

The Appellant had engaged in mediation with his brother, the executor of each of his parents’ estates, in relation to a Family Provision Act 1982 (NSW) (‘FPA’) claim. Most of the parents’ assets were held by the mother’s estate, but no FPA proceedings had been commenced against the mother’s estate prior to the mediation. A settlement was reached at the mediation and orders made by the registrar which, due to the absence of any proceedings on foot against the mother’s estate, simply contained a note that the orders were agreed to in contemplation of such a claim. The unusual form of these orders led to difficulties in their enforcement and ultimately a significant shortfall in the amount recovered by the Appellant.

The Appellant brought proceedings against the Respondents, his solicitors, for breach of a contractual or tortious duty of care in relation to the failure to commence proceedings against the mother’s estate prior to the mediation. The Respondents advanced a defence that the Appellant’s barrister and his brother were concurrent wrongdoers for the purposes of Part 4 of the Civil Liability Act 2002 (NSW).

On s 5B: In circumstances where the Respondents were aware that most of the assets were in the mother’s estate, and that the brother was in financial difficulty, there was a not insignificant, foreseeable risk that if clear, readily enforceable orders against the mother’s estate were not obtained in any settlement reached during mediation, any FPA provision agreed to could be difficult to recover: [63]-[65], [73]. The obvious, easily-adopted method of avoiding this risk was to commence proceedings in relation to the mother’s estate prior to the mediation: [67]. In acting for a claimant, a solicitor must take reasonable steps to ensure that his or her client is able to obtain the fruits of what the solicitor is instructed to seek in litigation or by agreement: [75].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant. The primary judge found in favour of the defendant and she brought an appeal.

On s 5B: The fact that the arena was ploughed on the Sunday morning would be an impermissible use of hindsight: [57].

Ms Jones and her company, Yambiana Pty Ltd, carried on a farming business in the Murrumbidgee Irrigation Area (the MIA) on a property known as North Corynnia. Murrumbidgee Irrigation Limited (MI) owned infrastructure for water delivery and drainage in the MIA and was responsible for delivering irrigation water to Ms Jones and Yambiana at the relevant times.

Ms Jones and Yambiana sued MI alleging that water delivered by MI to North Corynnia in 2009/10 was contaminated, turbid or otherwise unsuitable for use in irrigation. A major part of the case concerned whether the rice crops on certain paddocks failed because of the quality of the water delivered by MI in late 2009 and early 2010 and whether thereafter those paddocks were left contaminated. The statement of claim identified the duty of care as being to take reasonable care to ensure that the plaintiffs did not suffer loss or damage by reasons of any act or omission on the part of the Defendant in the supply of water. They alleged that MI was negligent by supplying water to the plaintiffs in relation to failure to take any or any reasonable steps to ensure the water was suitable for its purposes, to test the water to see if it was fit for purpose, address unsustainable levels of turbidity and salinity, or improve the quality of the water.

On s 5B: The plaintiffs did not establish that the irrigation water which MI delivered to North Corynnia in 2009/10 or subsequently was contaminated or not fit for purpose or that it harmed the crops, or that it harmed the land to which it was applied, in 2009/10 or subsequently, which prevented their success in their claims for substantial damages: [838]-[839].

The plaintiffs did not establish on the balance of probabilities that there were steps which a reasonable person in MI’s position would have taken, but MI did not take, to ensure that the irrigation water delivered at the relevant times was fit for purpose, or that the water delivered to North Corynnia was not suitable for the purpose of growing rice or any other irrigation purpose disclosed by Ms Jones to MI: [844].

The Kossaifis brought an action in professional negligence against their former solicitors. The solicitors were retained to assist the plaintiffs in finalising/terminating their business relationship with other persons with whom they were involved in a property development. The Kossaifis established a company with the Elias family, who they then had a falling out with such that their business arrangement became unworkable. Administrators were appointed to the company and they entered into a deed of company arrangement. The Kossaifis asserted that, as a consequence of the company being placed into voluntary administration, rather than a creditors’ voluntary liquidation, they lost a significant sum due to the reduction in the value of their shares. In the proceedings, the plaintiffs did not rely upon s 5O of the CLA.

On s 5B: It is not necessary to consider the causes of action in contract and tort separately. The foundation for both causes of action is a failure to take care in the provision of the professional services. A solicitor owes a duty to his client both in contract and in tort. The scope of the tortious duty will normally be set by the terms of the retainer: [46].

The question of breach must always be considered prospectively. In contrast, in identifying the risk of harm, the Court may have regard to what actually happened. The risk of harm may be identified generally or more specifically. It is not to be confined to the precise set of circumstances which are alleged to have occurred: [61]. It is necessary to identify the risk of harm with reference to the true source of loss, and not by merely identifying that there may be loss i.e. economic loss: [62].

The plaintiffs described the risk of harm as the risk of a significant reduction in the value of the plaintiffs’ shares. The defendants submitted that it was the risk that the value of the shares might be further diminished if the external administration process became costly and protracted without countervailing benefit for the plaintiffs. The Court held that the defendants’ description was too narrow or specific. The risk of harm was identified as being that the process of external administration would significantly dilute and diminish the value of the plaintiffs’ shares in the company: [63]. The Court held that risk of harm was reasonably foreseeable and not insignificant: [65].

In 2013 the respondent was delivering supplies to a building site. The builder’s supervisor directed him where to unload. In clearing the ground by removing an empty pallet, the first respondent fell into a stormwater retention pit, suffering severe injuries. The respondent sued the appellant in negligence. The appellant alleged contributory negligence on the part of the respondent and made several cross-claims seeking contribution.

On s 5B: The preferable course is to stand back from the known events and ask, in a prospective, objective way, what a reasonable employer would have done in the circumstances. The defendant’s conduct cannot simply be identified as providing the standard against which the same conduct is to be assessed because the employer is the alter ego of the worker: [39]. No breach of duty to provide a safe system of care by the respondent was established: [48].

Mr McMullen was a member of the Fire Brigade, employed by NSW. In 2007 Mr McCullen responded to an alarm at a shopping centre with a number of his colleagues. It was triggered from an air-conditioning unit on the roof of the centre. The access door was located at the top of a ladder with a metal locking bar. When descending the ladder, he knocked the locking bar with his elbow and was injured as a result of its falling. This led to workers compensation payments from NSW. The appellant was a joint manager of the shopping centre, entering this role 3 weeks before the incident. They challenged the District Court’s order for NSW to be indemnified for payments to McMullen in respect of an injury suffered in the course of his employment.

On s 5B: One employee of the appellant had performed the same role for the previous manager of the Centre. Her knowledge regarding the risk was imputed to the appellant who assumed the role of managing the Centre and employed her to perform the same role: [46]. The appellant ought to have known that the condition of the ladder, access door and locking bar was dangerous: [49]. It was correct to find that the risk involved a risk of death or serious injury, and therefore the risk of harm was not insignificant: [53].

The appellant’s duty of care was not lessened by the fact that it had taken over management of the premises three weeks prior to the incident: [68]. A contention that the appellant could discharge its duty to take certain steps imposes an evidential burden to show that it took those steps: [73]. The appellant’s submission of an installation of a mechanism to stop the locking bar falling was unlikely to have been effective in preventing the risk from arising: [74]. The appellant breached the duty of care it owed to Mr McMullen: [75].

Mr McMullen’s action in accidentally knocking the locking bar was accidental inadvertence and not amount to contributory negligence: [86].

The appellant was an experienced truck driver. In 2011, while stopped at traffic lights in a right turning lane, the appellant’s oversized vehicle was struck in the rear by a car driven by Mr Stahlhut. At the time of the collision, the appellant’s trailer protruded into the through lane where Mr Stahlhut was driving wholly in his own lane. Mr Stahlhut suffered serious injuries, and received workers compensation. Payments to Mr Stahlhut had been made by the respondent, who commenced proceedings seeking recovery from the appellant. Judgment was entered against the appellant in the amount of $262,366.11 plus interest.

On s 5B: The mere fact that the breach of advancing 2-3m into the intersection would be an offence did not per se preclude it being something which the appellant was required to do in order to adhere to his duty to take reasonable care: [42]. However, the respondent did not establish that a reasonable person in the appellant’s position would have taken the precaution of disobeying the law: [43].

The plaintiff was seriously injured when her horse fell while warming up before competition at the Wagga Wagga Show. The horse was startled by a very loud noise made by children playing with a metal sign on a nearby fence in the warm up area. The plaintiff brought a claim in negligence and pursuant to a statutory guarantee imposed by the Australian Consumer Law. The plaintiff alleged that there was a failure on the part of the Show Society to have supervisors to control the children in and around the warm-up area. Judgment was entered against the plaintiff.

On s 5B: On a prospective assessment of what reasonable steps a person in the respondent’s position would have taken, the appellant had not established that the respondent had breached its duty of care: [128]. The reasonable steps identified would not have reduced all of the relevant risks: [110]-[115]..

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5B: Reasonable precautions must be determined in the context of the events in issue. The plaintiff’s case for reasonable precautions was that the event would stop following a complaint, considering the background of other competitors falling. This was rejected as comprising a reasonable standard of care in the circumstances. What was required was for an informed consideration to be made as to whether it was safe to continue with the competition: [211].

The respondent claimed damages from the plaintiff as a result of injuries he sustained when on remand awaiting sentence at Parklea Correctional Centre. He was assaulted by three other inmates and sustained significant head injuries. The plaintiff was the private manager of Parklea. The respondent alleged that his injuries were the result of the plaintiff having breached its duty to take reasonable care for his safety, after the Nursing Unit Manager was informed by another inmate that they had overheard a group of inmates planning to assault the respondent.

On s 5B: In determining whether a reasonable person in the defendant’s position would take precautions against the risk, the court is to consider how probable it is that harm would occur if care were not taken. That may require taking precautions against a risk that is unlikely, particularly where, if the risk eventuates, the harm would be severe, and the burden of taking precautions is not great: [106].

In December 2011, Mr Ouhammi was arrested by police while urinating in a public place in Sydney’s east. He was heavily intoxicated. He was taken to Waverley Police Station and placed in a holding cell. The cell had a heavy perspex door that opened outwards. When shut, a sliding bolt secured the door. There was a small bench in the cell attached to the wall opposite the door, about one step away from the door. Mr Ouhammi was lying on the bench, facing the wall. An officer opened the door slightly and called to him. Within a few seconds, Mr Ouhammi rolled over and took a step towards the door. The officer quickly closed the door. Mr Ouhammi’s thumb was caught in the door, was partially severed and, eventually, partially amputated. Mr Ouhammi commenced personal injury proceedings in the District Court, suing the State of New South Wales as vicariously liable for the officer’s conduct. The primary judge found for Mr Ouhammi on the basis of negligent battery, and awarded damages of $82,000. The State sought leave to appeal. The Court of Appeal granted leave and allowed the appeal.

On s 5B: Brereton JA and Simpson AJA held that s 5B does not alter the longstanding approach to battery which places the onus of negativing fault on the defendant: [105]-[109], [189].

Basten JA, by contrast, considered that the CLA places the onus on the plaintiff to establish a defendant’s failure to exercise reasonable care and skill: [25]-[28].

High Court decisions cited in discussion:

Nickells v City of Melbourne (1938) 59 CLR 219; [1938] HCA 14

Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83

McHale v Watson (1964) 111 CLR 384; [1964] HCA 64

McHale v Watson (1966) 115 CLR 199; [1966] HCA 13

Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37

NSWCA decisions cited in discussion:

Timmins v Oliver (NSWCA, Jacobs, Manning and Moffitt JJA, 12 October 1972, unreported)

Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132

Brighten v Traino [2019] NSWCA 168

Ms Ayre was travelling north-west on Lake Road, Port Macquarie. She sought to make a right-hand turn across two lanes of traffic into a driveway. Mr Smith was travelling in the opposite direction in a car, and behind him, Mr Swan was travelling in the same direction on a motorcycle. Ms Ayre’s view of Mr Swan was entirely obscured by Mr Smith’s car. Ms Ayre commenced her turn without coming to a complete stop. As she was turning, Mr Swan increased his speed beyond the speed limit, passing Mr Smith on his inside. Mr Swan hit the back passenger side of Ms Ayre’s car, and suffered injuries to his left leg and knee. Mr Swan commenced negligence proceedings in the District Court against Ms Ayre. The trial judge found that Ms Ayre was liable for Mr Swan’s injuries, assessed his contributory negligence at 50%, and awarded him damages of $307,365.46. Ms Ayre appealed, challenging the finding of liability, the assessment of Mr Swan’s contributory negligence, and the quantum of damages awarded. By majority, the Court of Appeal allowed her appeal on contributory negligence only.

On s 5B: McCallum JA (with whom Macfarlan JA agreed) upheld the primary judge’s finding on liability, holding that it was not unreasonable or impracticable or a special precaution to require a driver turning right across two lanes of traffic, exercising reasonable care, to slow down (or stop) to the point where they can see both lanes of oncoming traffic with no blind spot or blocked view: [56] [59]. Basten JA dissented on liability, holding that the test in s 5B(1)(c) did not require Ms Swan to take a special precaution, not otherwise required, to avoid causing injury to a person on a motorcycle driving from a blind spot and overtaking on an inside lane, at a speed twice the posted speed limit: [51].

High Court decisions cited in discussion:

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42

Early one Monday morning, Mr Thornbury slipped and fell into a hole in the backyard of residential premises he was renting. He claimed to have suffered neck and lower back injuries as a consequence of the fall. The hole was one of several that had been dug the week before for the purpose of resolving a drainage problem. When the hole was dug, Mr Thornbury was present, as was a local plumber and the owner of the premises, Mr Lloyd. Mr Thornbury commenced negligence proceedings in the District Court, seeking damages from the plumber. Mr Lloyd was also joined as a defendant. The plumber and Mr Lloyd filed cross-claims against one another. Three years after the trial, the primary judge delivered an oral judgment, finding in favour of Mr Thornbury against Mr Lloyd, though finding 40% contributory negligence on the part of Mr Thornbury. On the cross-claims, the primary judge gave judgment for the plumber against Mr Lloyd. It was agreed that an award of damages of $345,043.17 was to be made to Mr Thornbury. Mr Lloyd appealed against the whole of the decision. Mr Thornbury cross-appealed, primarily challenging the findings on contributory negligence. The plumber sought to uphold the finding of liability against Mr Lloyd. There were various issues on appeal. Two issues presently relevant were: (i) whether the primary judge erred in failing to determine under s 5B(2) of the CLA the precautions which a reasonable person in Mr Lloyd’s position would have taken against the identified risk of harm; and (ii) whether the primary judge misdirected himself as to the evidence concerning Mr Thornbury’s residual earning capacity and failed to provide sufficient reasons for his findings with respect to non-economic loss. The Court of Appeal allowed the appeal in part on damages, and dismissed it as to the other issues.

On s 5B: A reasonable person in Mr Lloyd’s position on the Sunday prior to the incident, having identified on the Friday that the required response to the risk of harm was to backfill or barricade the holes, would have taken this precaution on the Sunday when advised that the holes remained open. In those circumstances, there was no error in the primary judge’s finding that Mr Lloyd breached his duty: [52]-[71].

High Court decision cited in discussion:

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

The respondent tripped and fell on a steel cable strung between low timber posts which formed a cable fence separating a car-parking area from playing fields at a park. Immediately behind the cable fence, closer to the fields, was a row of large concrete blocks, extending over about 40 m. The blocks had been installed at a later date than the fence. The respondent commenced proceedings against Hawkesbury Sports Council and Hawkesbury City Council, alleging that the Councils were negligent in failing to take precautions following the installation of the blocks and the retention of the cable, and further that they were negligent in failing to remove the cable. The primary judge found in favour of the respondent. The Councils appealed. By majority, the appeal was allowed.

On s 5B: the evidence did not establish that the risk of harm caused by the positioning of the concrete blocks and the retention of the cable was not insignificant: [38].

Note: Simpson AJA dissented on liability.

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 5B: the requirement in ss 5B(2)(c) and 5C(a) that the court consider ‘the burden of taking precautions’ refers, in relation to a public authority, to the allocation of the necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c): [95].

The respondent, Joseph Reilly, had commenced proceedings against various parties in respect of matters arising out of his father’s will. Relevantly, those proceedings included a claim in negligence against a solicitor. Mr Reilly claimed that the solicitor, who was retained by his father’s attorney to advise on ‘estate planning’, owed his father’s estate a duty of care as the ultimate client, and incidentally, owed Mr Reilly a duty of care as an intended beneficiary of the deceased. Mr Reilly argued that the solicitor had breached the duty of care owed to him by not taking reasonable care to prevent the father’s attorney from breaching her fiduciary duty to the estate (which she did). The primary judge upheld Mr Reilly’s claim in negligence. The solicitor appealed. The Court of Appeal upheld the primary judge’s decision on this point.

On s 5B: the risk of harm in a case where a testator is incapable is that the attorney may (whether innocently or consciously) misuse the power conferred on them, to the detriment of beneficiaries under the will. In a case where the testator was elderly and not legally qualified, that risk was plainly foreseeable and not insignificant. In such circumstances, a solicitor advising the attorney (and, ultimately, the testator’s estate) could be expected to take reasonable precautions that went beyond obtaining a copy of the will; they could be expected to test the deceased’s testamentary intentions: [161].

In 2015, the appellant, aged 70 at the time, tripped outside the entrance to an aged care facility owned by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10-20mm between the edges of the concrete and brick pavers. Those differences had been present since 2000 or earlier. Before the primary judge, the appellant had alleged that the respondent was negligent in failing to remedy the level differentials by raising the brick pavers. The primary judge rejected that claim, holding there was no breach of duty of care. The Court of Appeal dismissed an appeal.

On s 5B: Any risk of tripping created by the height difference was insignificant, given its obviousness and the remoteness of the likelihood that a pedestrian would fail to observe an account for it: [26]-[28].

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

NSW Court of Appeal cases cited in discussion:

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

Bunnings Group Ltd v Giudice [2018] NSWCA 144

The respondent was injured when he slipped on water on the floor of the below ground carpark of premises occupied by the appellant. The appellant contended that the primary judge had erred in principle because he had formulated the risk of harm retrospectively.

The primary judge identified the risk of injury which materialised as the risk of a customer suffering personal injury by slipping and falling when walking over the portion of the car park which was of smooth polished finish when wet. There was no error in this approach: [16]; [20].

The legal analysis under s 5B must be framed so as to encompass the risk which is claimed to have materialised and caused the damage of which the plaintiff complains. One should avoid an unduly narrow formulation of the risk which then distorts the reasoning, because, for example, it obscures the true source of the potential injury, focuses too narrowly on the particular hazard which causes the injury, or fails to capture part of the plaintiff’s case: [21]-[23].

High Court cases cited in discussion:

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

NSW Court of Appeal cases cited in discussion:

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320

Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172

Mr Bosevski was injured whilst working at a site operated by the appellant. The primary judge found that the appellant had been negligent; but that Mr Bosevski had not been contributorily negligent.

The appellant bore the onus of proof, including the identification of the correct risk of harm, to establish contributory negligence in relation to Mr Bosevski. It failed to frame its pleadings in respect of the risk of harm by specific reference to relevant provisions of the Civil Liability Act, or identify the correct risk of harm in its pleadings: [40]-[42].

The primary judge’s formulation of the risk of harm was not in error. It identified the “true source of potential injury”, and the “general causal mechanism of the injury sustained”: [43].

High Court cases cited in discussion:

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

NSW Court of Appeal cases cited in discussion:

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

The appellant was injured when he leapt from a vehicle driven by the respondent. The primary judge found that although the respondent owed a duty of care to the appellant as a passenger, this did not extend to protecting the respondent from “harm which is caused to himself”, and that even if it did, breach and causation were not made out.

On appeal, the Court held that, assuming that the scope of the duty owed by the respondent could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions, there was no basis for overturning the primary judge’s findings on breach or causation: [25]; [27].

The questions posed by s 5B(1) must be assessed prospectively and not with the wisdom of hindsight. The fact that a particular injury to the plaintiff might have been avoided if a defendant’s response to a risk of harm had been different does not necessarily establish that a defendant breached their duty of care. To analyse the question of breach by reference to the possibility that a different response would have produced a different outcome is to engage in impermissible hindsight reasoning. There was no error in the finding that the respondent had acted reasonably when confronted with a sudden emergency, and thus did not breach any duty of care: [28]-[38].

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Derrick v Cheung [2001] HCA 48; 181 ALR 301

NSW Court of Appeal cases cited in discussion:

Stuart v Walsh [2012] NSWCA 186

The respondent was injured when she tripped and fell on the raised ‘lip’ of the entrance to a children’s playground located at a store occupied by the appellant. The appellant had admitted that it owed a duty of care, but contended that the primary judge’s findings as to breach and causation could not stand.

Under s 5B(1)(c), the onus is on the plaintiff to demonstrate not merely that there were precautions available, but that a reasonable person in the defendant’s position would have taken those precautions. A finding in terms of s 5B(1)(c) is only to be made after the Court has considered each of the matters in s 5B(2). Those matters refer both to the risk and to the precautions: [35]. The reasoning of the primary judge conflated the three distinct ways in which the respondent said precautions should have been taken. Nor did the judge consider each of the four sub-paragraphs in s 5B(2) as was mandated. It was necessary to identify each of the precautions, and apply s 5B to them individually: [36]-[39].

Based on the evidence adduced at trial, the respondent had not established that the risk of harm was not insignificant under s 5B(1)(b). Assuming otherwise, a reasonable person in the appellant’s position would not have done more than it had already done, by delineating the fencing of the area with yellow lines, a fence and a child-proof gate which obliged entrants to come to a stop: [55]-[59].

High Court cases cited in discussion:

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20

NSW Court of Appeal cases cited in discussion:

Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263

Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065

Sibraa v Brown [2012] NSWCA 328

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

Stenning v Sanig [2015] NSWCA 214

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Mr Donald was employed by the second respondent, which hired out his labour to the appellant. He worked as a labourer, primarily, although not solely as a jackhammer operator, removing old railway sleepers and replacing them with new ones. The primary judge held that Mr Donald sustained a back injury due to the negligence of the appellant. He also entered judgment against the second respondent in accordance with the Workers Compensation Act 1987 (NSW). The appellant appealed and the second respondent cross-appealed with respect to the findings on liability.

The Court found that the appellant was negligent in failing to provide Mr Donald with a system of work that guarded against the risk of personal injury, and in failing to take adequate steps to ensure that he took reasonable rest breaks from jackhammering and from undertaking additional heavy work that was recognised to be work generally undertaken by two workers: [126]-[128].

The primary judge had not erred in finding that the risk of harm, being the risk of “suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labour work”, was “not insignificant”. The absence of reports of injury due to jackhammering did not mean that there was a sufficiently low probability of harm. The appellant recognised that the risk of harm was “not insignificant” by the very fact that its documented safe work practices were designed to minimise the likelihood of personal injury through heavy repetitive labouring work, by having a system of task rotation, rests and instructions as to weights that should be lifted: [132]; [142].

NSW Court of Appeal cases cited in discussion:

Shaw v Thomas [2010] NSWCA 169

Bitupave Ltd v Pillinger (2015) 72 MVR 460; [2015] NSWCA 298

Gulic v Boral Transport Ltd [2016] NSWCA 269

Sibraa v Brown [2012] NSWCA 328

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8

Vincent v Woolworths Ltd [2016] NSWCA 40

The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. If the operation had been terminated earlier, he would not have suffered the injuries which led to the paraplegia. Both the appellants argued, inter alia, that no breach of duty had occurred.

The surgeon had not breached his duty, as he was entitled to rely on the anaesthesiologist to inform him of the readings which would identify concern, and nothing came to his attention during the relevant time that should have directed him towards terminating the surgery: [201].

The anaesthesiologist had breached his duty, as he had ignored a serious and imminent danger to the respondent, and allowed the surgery to continue for 30 minutes without consulting the surgeon: [93]; [183]. In dissent, Simpson JA held that, on the basis of the medical evidence, there had been no breach of duty: [359].

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48

The respondent suffered injuries to his neck, shoulder and back when he tripped over the corner of a raised timber platform while walking across the lobby of the Manly Pacific Hotel, which was occupied by the appellant.

The Court held, with reference to s 5B, that the risk that people might trip on the raised platform injuring themselves was not insignificant: [57]. Users were not likely to have expected the presence of such a low platform on one side of an area of the lobby providing pedestrian access to and from the main bar area. The appellant occupier should reasonably have expected that users would include those who were distracted or inattentive or even less than careful: [66].

Accordingly, the majority held that a reasonable occupier in the appellant’s position would have sought to warn of the risk of tripping on the platform: [66]. Placing a warning sign on the platform, or roping it off, would have been sufficient: [66], [73]. Justice Fagan said that placing a barrier or removing the platform would have been sufficient: [83]-[84].

High Court cases considered:

The appellant was struck by a car driven by the respondent when walking home along a roadside shoulder at night. On cross-appeal, the respondent submitted that the primary judge had erred in dealing with the question of negligence without reference to s 5B of the Act.

Negligence is to be determined in accordance with s 5B. However, it is not necessarily indicative of error for a trial judge to omit express reference to s 5B in proceedings to which the Civil Liability Act applies, so long as negligence can be satisfied with reasonable clarity when the judgment is read as a whole. [61]-[62]

The respondent was injured when the glass panel of a balcony balustrade gave way due to a corroded bolt. By reference to s 5B, the primary judge found that the number of guests in close proximity to the balustrade made it reasonably foreseeable that there was a risk of harm from a failure of the balustrade and that the failure to take precautions to ensure the structural soundness of the balustrade was a breach of the appellant’s duty of care.

By reference to s 5B, the risk of a failure of the balustrade due to a corroded bolt was not reasonably foreseeable. There was no evidence that the appellants had actual knowledge concerning a corroded bolt nor should they have known. [130]

Note: Simpson JA dissented. [224], [231]-[238]

The appellant sustained injuries after colliding with a shopping trolley whilst working as a merchandiser in the respondent’s supermarket. The primary judge found that the respondent had not breached its duty of care. On appeal, the appellant submitted that the primary judge misapplied s 5B(1)(b) and (c) in focusing upon the severity of the injury which could result from the risk instead of an assessment of the probability of the occurrence of the risk.

The likely seriousness of the harm is of particular relevance to the question posed by s 5B(1)(c). However, that is not to say that the seriousness of the harm that might eventuate is irrelevant to s 5B(1)(b). Identification of the relevant risk of harm under s 5B requires the postulation of some material, or appreciable, harm. This need not be the severity of the harm actually suffered but must be harm in a legal sense. The adoption of common industry standards will also prove relevant to the determination of precautionary measures that a reasonable person would adopt, for the purposes of s 5B(2). The primary judge did not misconstrue s 5B(1)(b). [31]-[33], [42]

An employee of the South Sydney Rugby Club fell and injured his back when moving a large empty trolley. The primary judge found in favour of the respondent and the appellant sought to challenge that finding on appeal.

The requirement that a foreseeable risk be “not insignificant”, for the purposes of s 5B(1)(b), engages a set of considerations which are not at the same level of generality as would suffice for a finding of a foreseeable risk. The significance of a risk will depend upon a variety of factors, including obviousness, likelihood of occurrence and seriousness of consequences. A risk that arises from the claimant’s carelessness, where foreseeable but quite unlikely to eventuate, is unlikely to satisfy s 5B(1)(b). In the present case, the risk that a person would fall over if a force either insufficient or too great were applied, or if the person were careless in their grip was dismissed as insignificant. [89]

The appellant was injured when she slipped and fell on the damp tiles of a front porch and brought proceedings against the respondent occupier. The primary judge found that a person in the plaintiff’s position would have been aware of the potential for water to pool on the porch. The appellant complained that, among other things, the primary judge had erred in characterizing the relevant risk for the purposes of s 5B.

The primary judge commenced his inquiry about breach by considering the issue of obvious risk under s 5F. However, after identifying the duty of care and its content, the primary judge should have considered what constituted the “risk of harm” for the purposes of s 5B. It is only through accurate identification of the risk that one can assess what a reasonable response to that risk is. The risk of harm provides the framework for considering the issue of breach and “obvious risk” under s 5F. In the present case the risk was foreseeable and not insignificant under s 5B(1)(a) and (b). Section 5B dictates that a reasonable occupier would have warned of the potential for there to be a slip. [86]-[87], [153]

A 12 year old elite swimmer suffered tetraplegia after slipping whilst diving in the shallow end of a pool. The primary judge, in dealing with the plaintiff’s claim for negligence, scarcely mentioned the Act and, in particular, did not undertake an analysis of the “risk of harm” under s 5B.

Central to the determination of civil liability for failure to exercise reasonable skill and care is the identification of the risk of harm. All seven paragraphs in s 5B presuppose a risk of harm against which precautions should have been taken. Each of those seven paragraphs must be considered by a court before a defendant is found to have been negligent. Subsection (1) states three necessary preconditions to liability, while subsection (2) provides a non-exhaustive but mandatory list of factors to which the court is required to have regard. To address the provisions of s 5B, a plaintiff must address and identify the relevant risk(s) of harm and, ordinarily, it would be desirable for the pleadings to address the Act in terms. [102]-[106], [128].

The respondent’s motorbike hit a waterlogged, roadwork windrow of road-base and aggregate, resulting in severe injuries. On appeal, it was alleged that the primary judge had, in a number of senses, failed to apply s 5B correctly.

Although under the heading ‘Duty of Care’, ss 5B and 5C are directed to questions of breach of duty.

The correct identification of the relevant risk of harm under s 5B is important as it enables an assessment of, among other things, what might be a reasonable response to the risk. However, it is unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. In the present case, the risk of harm formulated by the primary judge was preferable to that formulated by the appellant.

While it is necessary for the relevant risk of harm to be properly identified in order to enable an assessment of what might be a reasonable response to the risk, generally it is both unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. [152]–[153]

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

NSW Court of Appeal cases cited in discussion:

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. On appeal, the appellant submitted that the primary judge erred in his identification of the relevant risk of harm for the purposes of s 5B, which his Honour said had to be identified without the use of hindsight reasoning, and prospectively from the position of the Council prior to the accident occurring. The risk of harm was identified by the primary judge, on that basis, as “the injury which might be suffered from a cyclist falling after their wheel becomes stuck in the holes or gaps in the planks on the bridge”.

Section 5B operates on the basis that the Court has identified the “risk of harm” for duty of care purposes and s 5B(1) is informed by the scope of the duty of care. The identification of a risk of harm must be undertaken prospectively, and not by reference to how the plaintiff was injured, with a view to identifying what risk a reasonable person would foresee and evaluate to determine what precautions (if any) ought be taken. A retrospective inquiry will obscure the proper ability to identify a breach. The primary judge did not err in the manner in which he identified the risk of harm for the purposes of s 5B: [120]–[135].

NSW Court of Appeal cases cited in discussion:

The respondent tripped and fell up a wet entrance step to a demountable gatehouse. The primary judge found that the “risk of harm” for the purposes of s 5B was that of slipping on the metal door-sill when it was slippery because it was wet from rainwater. That risk arose from the “awkward height of the step” which was “higher than normal”; was foreseeable within the meaning of s 5B(1)(a); and not insignificant within the meaning of s 5B(1)(b). His Honour found that, taking into account the factors in s 5B(2), a reasonable person in the position of the appellant would have taken the precaution of installing a step and an awning and that, therefore, the appellant was negligent. In so finding, the primary judge relied on the fact that a step and awning were installed subsequently.

Section 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant’s position would have taken precautions. The essential question posed as to what a reasonable person would have done in response to the foreseeable risk must be considered prospectively. Consideration of s 5B(1)(c) is subject to the limitations imposed by s 5C.

The primary judge erred in resolving the question of what a reasonable person would do merely by reference to the installation of an intermediate step. The fact that a step and awning were subsequently installed did not mean that a reasonable person would have taken those precautions. The primary judge inappropriately relied upon what the appellant did after the accident which is contrary to s 5C(c). There was also no basis in the evidence to conclude that the step was “awkward”. [49]-[51], [62]-[74]

High Court cases cited in discussion:

An employee was seriously injured in a helicopter crash during an aerial inspection of power lines. The primary judge found that the appellant and respondent were liable to the employee but that Telstra, responsible for the wire with which the helicopter came into contact, owed no duty of care. On appeal it fell to be determined whether Telstra owed a duty of care and, whether it was in breach under ss 5B(1)(c) and (2).

Section 5B raised three questions:

1) whether it was reasonably foreseeable that there would be low flying aircraft in the area;

2) whether that risk was “not insignificant”, which involves two main variables: the seriousness of the consequences should the risk materialise and the likelihood of the risk materialising. A risk can be “not insignificant” for the purposes of s 5B(1)(b) despite a very low likelihood of the risk materialising and a small number of individuals likely to be involved;

3) what “precautions” a reasonable person would have taken in those circumstances.

In the instant case, Telstra owed a duty of care and, therefore, it was necessary under s 5B to consider the precautions that Telstra should reasonably have taken against the identified risk of harm. It ought reasonably to have foreseen the possibility that a helicopter may operate in the vicinity of its wire and come into contact with it. That risk was not insignificant. The appropriate precaution would have been not to re-erect the wire across the valley in the first place. [31]–[33], [48]–[51].

High Court cases cited in discussion:

The respondent was injured when the armrest of a moving chair lift struck her from behind. The primary judge identified the risk as the risk of harm resulting from a chair arriving at the loading station in a state not suitable for boarding. However, when determining whether the risk was foreseeable for the purposes of s 5B(1)(a) the primary judge found that the risk was that of “physical harm being occasioned to a skier from a chair arriving at the loading station with its safety bar in the down position”. It was submitted that this characterization of the risk was erroneous.

The proper assessment of an alleged breach under s 5B depends on the correct identification of the relevant risk of injury. The risk should not have been characterized at the level of generality adopted. The second characterisation does not identify the true source of the potential injury.

The identification of the relevant risk is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm. It is unnecessary to determine the precise source of the plaintiff’s potential injuries. The risk in the present case was that a skier might sustain physical injury as a result of his/her reaction to the manner in which a lift operator responds to a bar-down situation. Precision in defining the relevant risk was called for in the present case in order to determine what reasonable precautions ought to have been taken. [92]–[96], [98], [104]–[106]

High Court cases cited in discussion:

The respondent suffered injuries when he fell on the wet driveway of the appellant’s property. The primary judge found that s 5B had no application as the relevant acts were positive acts and s 5B applies to negligence “in failing to take precautions against a risk of harm”. Nevertheless, the primary judge went on to consider the matter by reference to s 5B.

There is no decision that established that the section does, or for that matter does not, apply where the acts of negligence proved are positive acts rather than negative. Because the Court considered that the conclusion of the primary judge could be supported on the view that s 5B did apply, it did not address the matter further. [105]-[111]

The appellant was injured as a front seat passenger when the respondent’s car collided with a cow. No breach of duty was found at first instance.

Section 5B(1) sets out the three preconditions that must co-exist to establish breach of duty – a respondent will not be negligent in failing to take precautions against a risk of harm unless the risk was one of which he knew or ought to have known, the risk was not insignificant and a reasonable person would have taken those precautions. Section 5B(2) provides a non-exhaustive list of factors the court is to take into account in determining whether a reasonable person would have taken precautions against a risk of harm under s 5B(1). [48]–[51], [69]

NSW Court of Appeal cases cited in discussion:

The appellant was driving along a dark residential street and struck the respondent. The primary judge found the appellant negligent in not using high-beam headlights.

A motorist’s duty to roadway users, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances. Under the common law and s 5B, the standard by which reasonable care is measured is objective and impersonal. The question whether there has been a breach of duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done by way of response to any foreseeable risks of injury or sources of danger to other road users. Under s 5B(1), a person is not negligent unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in the circumstances.

Under 5B(1)(c), reflecting the common law, the question whether the appellant was exercising reasonable care in the circumstances is to be answered by reference to what a reasonable person in their position would have done by way of response to any foreseeable harm.

In this case, the risk of harm to a pedestrian on the roadway was, in the language of s 5B(1) and (2), foreseeable and not insignificant and was therefore something that the driver was required to take steps to avoid. The primary judge did not err in finding that the appellant was negligent in not switching her lights to high beam. [33]–[35], [40]–[41], [47]

High Court cases cited in discussion:

The respondent slipped and fell on a boat ramp during the course of employment as a ferry operator. One of the critical issues on appeal was whether the primary judge erred in failing to identify, with the requisite degree of precision, the risk of harm for the purposes of s 5B.

Section 5B(1) sets out three preconditions that must co-exist before liability in negligence arises and s 5B(2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B(1)(c) invokes the notion of foreseeability as it is relevant to breach of duty of care. The absence of consideration at trial of the matters prescribed by s 5B of the Act may be reason enough to conclude that the question of breach of duty was not determined properly.

For the purposes of s 5B(1)(b), it is sufficient if the kind or type of injury, rather than the precise and particular character of the injury, was foreseeable. Nevertheless, the focus of s 5B is upon the risk of harm and the precautions which might be taken against such a risk. The requirement in s 5B(1)(b) that the risk of harm be “not insignificant” is a more demanding standard than that at common law but not by very much.

In the present case, if the primary judge was to accept the respondent’s evidence that he fell when he slipped on dry algae, she then had to identify the risk of harm for the purposes of s 5B(1). This would have required focus on the nature of the surface on which the respondent slipped. Had the primary judge done so, she would have realised that there was no evidence that there was a risk of slipping on the dry part of the ramp. [7], [62]-[63],[65], [97], [99], [205]

High Court cases cited in discussion:

The appellant fell down the stairs of a holiday house and severely injured the grandchild she was holding. The child’s father successfully sued at first instance. On appeal, the appellant submitted that s 5B was not satisfied, nor was the social utility of 5B(2)(d) considered.

Section 5B(2)(d) requires the court to consider the ‘social utility’ of the activity that caused the harm when making normative judgment as to the precautions that a reasonable person would have taken against that risk of harm. The provision of domestic assistance, such as temporary relief in caring for an infant, is a circumstance with a very high social utility: it goes to the heart of what family members do for one another. Parliament has directed the courts to consider this factor in making a normative judgment as to the precautions that a reasonable person should have taken against a foreseeable risk of harm. The primary judge did not undertake that task and, in that respect, erred.

In the present case, it verged on fanciful to suggest that the appellant breached any duty of care. She was assisting her family in a fraught domestic situation involving a restless infant and was conscious of the need to proceed safely. It was not shown that a reasonable person in the appellant’s position would have taken the precautions identified by the primary judge and the plaintiff.

The finding of negligence by the primary judge could not stand. [4], [114]-[116], [130]-[135], [152]

The respondent suffered brain damage when he was assaulted by a fellow student at his state high school. The respondent was awarded damages at first instance. One issue on appeal was whether the primary judge erred in finding that the appellant breached its duty of care to the respondent.

The determination of breach of duty of care must be made having regard to the requirements of s 5B of the Act. This involves identifying the risk of harm and the question of whether there has been a breach of duty should be assessed prospectively.

Section 5B(1)(a) necessitates a determination of whether the relevant risk was foreseeable. The relevant test is the test at common law.

Section 5B(2) requires the Court to consider the probability of the harm occurring and the burden of taking precautions. Usually, reference is made to the cost of implementing a particular precaution. However, the language of s 5B(2)(c) is not confined to the economic burden of taking precautions to avoid a risk of harm. Such considerations need to extend to factors such as cost, time, distance and communication. It may be that a precaution is difficult to implement. Consideration may need to be given to less tangible burdens under s 5B(2)(d), such as the privacy concerns of this case. It was found that the school failed to comply with its own procedures and that this constituted a breach of its duty of care to take responsibility for the safety of the students. [70], [75], [76], [80]-[84], [86]

High Court cases cited in discussion:

Mr Gray injured his back lifting a box of water at a depot operated by Coles. It was common ground that he could not reach the box of water towards the back of the pallet without putting at least one foot on the pallet. Mr Gray accepted that he had made the mistake of “overreaching” for the pallet, explaining that he was concentrating on not hitting his head on the racks above. The primary judge found against Mr Gray on the question of liability.

On s 5C: a defendant is not required to do something which would merely have the effect of substituting one risk for another, potentially greater, risk: [63]. Thus the Appellant would have had to prove that the benefit of pallet-turning, in terms of the reduction of risk associated with lifting items from the back of the pallet, outweighed the increased risks to workers associated with doubling pallet movements: [64].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5C: (b) – ground preparation could have involved ploughing, if a view was reached that the ground was not “soft sand or loam”. This can be seen as “doing something a different way” which does not itself give rise to or affect liability. (c) – the fact that the arena was ploughed for 3 hours the day after the plaintiff’s fall did not affect liability and did not constitute an admission of liability: [213]-[214].

The respondent claimed damages from the plaintiff as a result of injuries he sustained when on remand awaiting sentence at Parklea Correctional Centre. He was assaulted by three other inmates and sustained significant head injuries. The plaintiff was the private manager of Parklea. The respondent alleged that his injuries were the result of the plaintiff having breached its duty to take reasonable care for his safety, after the Nursing Unit Manager was informed by another inmate that they had overheard a group of inmates planning to assault the respondent.

On s 5C: The primary judge was required to consider whether the burden of taking the precaution of segregation and transfer would mean that similar steps would be required in the case of other overheard threats that would place an unreasonable burden on correctional centre management: [102]. The plaintiff’s complaint was not that prison systems were at fault, but rather that the system laid down in the protocols was not complied with, and therefore no s 5c issue arose: [105].

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 5C: the requirement in ss 5B(2)(c) and 5C(a) that the court consider ‘the burden of taking precautions’ refers, in relation to a public authority, to the allocation of the necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c). That assessment must take into account the additional burden which would be required to avoid ‘similar risks of harm’ in other activities conducted by the authority: [95]-[96].

Ms Miller, a 12 year old elite swimmer suffered tetraplegia after slipping in the shallow end of a pool, mid track-dive. The primary judge gave a judgment in favour of the Council, and a judgment in favour of Ms Miller against the School. The School’s appeal against the findings of the primary judge raised the question of the risk of harm posed under the Act

In order to apply s 5C, it is necessary to identify the relevant risk of harm. Section 5C is to be read with s 5B. It extends s 5B(2)(c) by providing that the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm. It is significant that the section refers to similar risks of harm and not the risk of similar harms.

Section 5C then proceeds on the basis that the “risk of harm” is sufficiently narrow that a defendant may be able to point to similar but distinct risks of harm. [106], [111]-[114]

Note: Special leave to the High Court was refused.

The respondent was engaged as an architect to design the appellants’ home renovations, for which the appellants indicated their initial budget was $300,000. After the respondent made an estimate of the costs of renovation, they increased their budget to $600,000. In February 2016 the parties had a falling out and the appellants continued the renovations  using a builder. In June 2016 the builder advised that the cost of achieving their building “objectives” would exceed $1,000,000. The appellants did not pursue all their objectives. It was agreed that the renovations ultimately cost $780,000 but only increased the value of the house by $330,000. The appellants sued the respondent for a breach of s 18 of the Australian Consumer Law, and in contract and tort alleging, inter alia, that the architect breached a concurrent contractual and tortious duty to advise them about the “likelihood of achieving the client’s stated budget and time requirements for the architectural service concerned”. The primary judge found that the respondent breached that duty but did not specify what advice should have been given or make a finding about whether the appellants would have not pursued the renovations had the duty been performed. However, the primary judge found that “if the [respondent] felt himself unable or unqualified to give an accurate estimate of costs, he should have warned of that in writing and advised the plaintiffs to obtain an estimate from a properly qualified professional”. The appellants framed their claim for damages on a “no transaction” basis, that is, if the representation had not been made, they would not have pursued the renovation. The primary judge found that they did not suffer any loss and only awarded the appellants nominal damages for breach of contract. The appellants appealed that decision. The Court of Appeal dismissed the appeal.

On s 5D: The most likely construction of s 5D(3)(b) is that “inadmissible” means “inadmissible over objection”. . To support their ACL claim, the appellants led evidence of what they would have done had the respondent not told them the project was achievable within a $600,000 budget. There was no objection to this evidence.       The evidence was therefore admissible under s 5D(3)(b) to support the appellants’ claim in tort: [40]-[41].

The only specific means of discharging the relevant duty identified by the primary judge was that, in the event the respondent “felt himself unable or unqualified to give an accurate estimate of costs, he should have warned of that in writing and advised the plaintiffs to obtain an estimate from a properly qualified professional.” If it was not demonstrated that, if the respondent had taken this means of discharging the duty, loss would not have been occasioned, then “factual causation”, under s 5D(1)(a) was not established: [66].

NSWCA decisions cited in discussion:

Hilton v Legal Profession Admission Board [2017] NSWCA 232

Varipatis v Almario [2013] NSWCA 76

Ms Yebdoo pulled out from behind a right-turning vehicle into the path of Mr Holmewood’s motorcycle. Mr Holmewood was driving in between parked cars and the stopped traffic, also intending to pass the right-turning vehicle. Mr Holmewood collided with Ms Yebdoo’s car and was thrown across the bonnet, landing on the road where Ms Yebdoo unintentionally drove over him. Ms Yebdoo suffered mental trauma as a result of the incident and sued Mr Holmewood for negligence. The primary judge found that breach had been established (failure to keep a proper lookout) but not causation. Expert evidence had been adduced concerning average reaction times and general rates of deceleration achievable by effective braking, but not from the speed at which the primary judge found that Mr Holmewood’s motorcycle had been travelling. Ms Yebdoo appealed on the issue of causation and the Court of Appeal by majority dismissed the appeal.

On s 5D: to establish causation, it was necessary to identify how long Mr Holmewood had to react, what his reaction would have been had he been keeping a proper lookout, and how that would have avoided a forceful collision. The onus to prove those elements fell on Ms Yebdoo (s 5E). No attempt was made to estimate what minimum speed would have sufficed to propel Mr Holmewood across Ms Yebdoo’s bonnet, this being necessary to cause Ms Yebdoo’s mental trauma: [119]-[120]. Given the small distances and times involved, the combination of these various considerations was far from straightforward. The available evidence of time and distance was too imprecise and in the absence of expert assessment no finding of causation could be made: [123].

(Per Macfarlan JA, in dissent) The Court, drawing on its common sense and experience, including matters of common knowledge as to the effectiveness of braking, did not require expert evidence to conclude that the period in which Mr Holmewood might have applied the brakes, had he kept a proper lookout, was sufficient to have significantly lessened the severity of the collision: [43].

Ms Makaroff suffered a dislocated right shoulder and a bite wound on her right. She was taken to a hospital in the respondent local health district, underwent plastic surgery on the bite wound and was discharged into the care of her general practitioner. Ms Makaroff did not have orthopaedic review or radiological examination of her shoulder for a number of months. By the tie she did it was too late for her shoulder to be repaired surgically. Ms Makaroff alleged negligence on the part of the hospital in failing to inform her of the need for further investigation of her shoulder injury. The primary judge rejected that calim on the basis that the Respondents had acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Ms Makaroff contended that the defence did not apply by reason of s 5P. Her Honour would also have rejected Ms Makaroff’s claim for failure to establish causation. The Court of Appeal held, by majority, that breach and causation had been established.

On s 5D: Ms Makaroff’s claim was for the loss of an opportunity of a better outcome. In a claim for negligence in relation to personal injury such a loss is not compensable unless it can be shown that, in the absence of the alleged negligence, a better outcome was the probable result. The onus fell on Ms Makaroff to prove that, but for failure to advise her of the urgency with which she ought to have sought an orthopaedic consultation, she would not have been left with a permanently injured shoulder: [148]-[150].

Some elements of the chain of causation were within Ms Makaroff’s control; others were not. Matters within Ms Makaroff’s control were to be judged subjectively, in terms of how she would have acted, but not without regard to ordinary human behaviour: [151].

It should not readily be concluded that a patient, properly advised that it is imperative that she have an urgent consultation, would disregard that advice: [164]. Further, it should not readily be accepted that a patient, faced with an ongoing shoulder problem and a recommendation for surgery with very good prospects of a satisfactory outcome if performed quickly, would decline to have surgery: [186].

Though there was uncontradicted evidence of a lengthy public waiting list for elective surgery of the priority usually allocated to rotator cuff repairs, the proposition that a patient whose condition would become inoperable if not operated upon expeditiously would be left on a waiting list until it became inoperable requires close scrutiny. In the circumstances, a reasonably prudent surgeon would have prioritised the surgery before it became no longer viable: [190], [200].

The Appellants undertook substantial construction works, including excavation works, on their land, causing damage to the Respondent’s neighbouring property. The stairway giving access to four of the six units in an apartment building let out by Ms Camuglia was damaged when its supporting foundations collapsed, with the stairway showing visible signs of damage. Temporary propping was installed, which an engineer’s report indicated was adequate to ensure safety until a permanent solution could be implemented. The leasing manager of the apartments nonetheless advised Ms Camuglia that the property was incapable of being advertised to let. At trial Ms Camuglia was awarded damages for consequential loss, namely lost rent from units in the building, including for the period after the installation of the temporary propping. That award was challenged on appeal. The Court of Appeal dismissed the appeal, holding that it was not unreasonable for any decision to let the premises to await the construction of a permanent solution to access, in circumstances where that construction was expected to occur within a matter of weeks or months and the state of the damaged stairway would likely have an adverse effect on prospective tenants.

On s 5D: The appellants’ contention, though not properly particularised at trial, was essentially that Ms Camuglia had failed to mitigate her loss by failing to take reasonable steps to re-let the property. The relationship between causation and mitigation is contested, and where the Civil Liability Act applies there does not appear to be any analysis of the relationship between mitigation and the onus of proving “any fact relevant to the issue of causation” imposed by s 5E. Though unnecessary to decide in this case, the appellants’ (defendants at trial) failure to particularise what was described as a failure to mitigate is an example of when the issue of taxonomy, and the relationship between causation and mitigation, may be significant: [41].

Mr Coulthurst was engaged by Mr Miles to work as a sub-contractor on the construction of Mr Miles’s new home. Mr Coulthurst was a tradesman carpenter with many years’ experience in home building work. Mr Coulthurst was on a ladder when a large beam swung towards him and he fell off the ladder, landed awkwardly and suffered a serious fracture of his left leg and a back injury. Mr Coulthurst claimed damages for injuries he suffered.

On s 5D: The duty of care owed by the operator of an excavator is akin to that owed by the driver of a motor vehicle to other road users and therefore falls into an established category of duty recognised by the law of negligence: [137]. It is not necessary for a plaintiff to prove that a defendant’s negligence was the sole cause of the occurrence of his or her harm. It is sufficient that that negligence is a necessary condition of the occurrence of the harm: [139].

The Court held that Mr Miles’s acts and omissions in the operation of the excavator in his attempt to lower the steel beam onto the timber prop were necessary conditions to the occurrence of Mr Coulthurst’s serious personal injury: [140].

The appellant was an experienced truck driver. In 2011, while stopped at traffic lights in a right turning lane, the appellant’s oversized vehicle was struck in the rear by a car driven by Mr Stahlhut. At the time of the collision, the appellant’s trailer protruded into the through lane where Mr Stahlhut was driving wholly in his own lane. Mr Stahlhut suffered serious injuries, and received workers compensation. Payments to Mr Stahlhut had been made by the respondent, who commenced proceedings seeking recovery from the appellant. Judgment was entered against the appellant in the amount of $262,366.11 plus interest.

On s 5D: The respondent did not prove that more likely than not that activating another hazard light would have caused the appellant to avoid the collision: [63].

The plaintiff’s farm, “Myack”, was extensively damaged by fire in September 2012. The plaintiff claimed that the fire started on the adjoining property, “Doran”, resulting from a controlled burn conducted there in August 2012 at the request of the owners, the respondents. The defendants acknowledged that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished, and for notifying adjoining landowners of the burn, which they did not do. The RFS identified that a tree on the boundary of Doran was the source of the 5 September fire, reigniting after not having been fully extinguished after the controlled fire.

The defendants were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the defendants or the RFS. The plaintiff also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.

The plaintiff sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The defendants denied the claims and alleged contributory negligence on the plaintiff’s part.

On s 5D: The onus fell on the plaintiff to establish, on the balance of probabilities, that the 5 September fire spread from Doran as a result of the failure to take reasonable precautions. The judge was satisfied that the fire began in the smouldering tree which reignited on 5 September, in the unusual weather conditions which prevailed that day, with the result that the fire was then driven onto Myack: [69]-[72].

Ms Christina Christopher commenced proceedings against Officeworks Ltd in the District Court, claiming damages for personal injury suffered as a result of being struck by an object falling from a shelf above her at an Officeworks store. The primary judge gave judgment in her favour. Officeworks appealed. On the appeal, Ms Christopher accepted that the appeal should be allowed: the reasons of the primary judgment were deficient in various respects. Officeworks’ single ground of appeal asserted an error in the assessment of damages, not challenging the primary judge’s findings on liability. The two key issues the Court of Appeal had to consider went to causation and assessment of damages. On causation, the Court held that the Officeworks incident did cause damage Ms Christopher had suffered to her rotator cuff, but that it did not cause the need for her to have a left shoulder hemiatroplasty. On damages, the Court held that Ms Christopher was precluded from obtaining damages for non-economic loss because she could not meet the threshold in s 16(1) of the Civil Liability Act 2002 (NSW), and she was precluded from obtaining damages for gratuitous domestic assistance because she had not received such assistance for a period of at least 6 consecutive months: s 15(3)(b).

On s 5D: a finding that the negligence is a possible cause of the harm suffered is insufficient to meet the statutory requirements for causation: [47].

An agent for a company gave affidavit evidence in respect of their company’s investment in Metal Storm, his dealings with the administrators appointed to the company and, relevantly, what he would have done if Equity Trustees had appointed a controller during the decision period. Objection was taken to the admissibility of this evidence, and there was a dispute as to which civil liability legislation applied to the matter. As the relevant provision was a rule of evidence which is procedural, the applicable law is those of the forum. Therefore, the Civil Liability Act 2002 (NSW) applied.

On s 5D: section 5D(3) prescribes that the question of what “the person who suffered harm would have done” should be determined subjectively, being what that person would have done, not what a reasonable person would have done. It identifies the evidence which may be examined for this purpose, and specifically excludes any statement made by that person after suffering the harm unless the statement is against their interest: [29]. A corporation can make a statement through its officers or authorised representatives, such as a sole director and shareholder. If objection is taken to the admissibility of hindsight evidence, it may be that a voir dire will be needed to ascertain whether a statement by that person is a statement “by” the corporation under section 5D(3)(b). If it is, then the evidence is not admissible: [30].

Mr Williams worked as a picker-packer in a product distribution centre operated by Metcash Trading Ltd. He brought proceedings against Metcash Trading Ltd in the District Court, seeking damages in respect of personal injury said to have been sustained while working at the centre. The primary judge found that Mr Williams suffered an injury while lifting two boxes of dog food from under a rack that was 1.4 m high. He held that Metcash breached a duty it owed to Mr Williams by requiring that cartons of dog food be picked from a rack measuring only 1.4 m high. But he gave judgment for Metcash on the basis that this breach did not cause Mr Williams’ injury; rather, the injury was caused by the fact that Mr Williams lifted two boxes, contrary to safe lifting practices. In the event that he was wrong on causation, the primary judge went on to consider quantification of damages and contributory negligence, finding that any award of damages would be reduced by 20% by reason of Mr Wiliams’ contributory negligence. Mr Williams appealed, challenging the primary judge’s finding that the negligence found did not cause his harm, and challenging the findings on contributory negligence. The appeal was allowed on causation.

On s 5D: the relevant question for the purposes of s 5D(1)(a) was whether Mr Williams would have suffered the particular injury he did suffer if the height of the rack was 1.8 m, not 1.4 m. So far as causation was concerned, it was not to the point that he lifted two boxes. The Court of Appeal concluded that the injury in question would have occurred if the rack was at least 1.8 m high: [64]-[67].

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 5D: in this case, it was unnecessary for the Court to be satisfied as to the precise cause of the fire if it was more probable than not that the fire was caused by one of the possible methods of ignition resulting from the Council’s negligence: [114], [141].

High Court decision cited in discussion:

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Mrs Trajkovski commenced proceedings against a firm of solicitors and its principal, alleging that they had breached a duty of care they owed her concerning the sale of a property registered in her name and that of her estranged husband. The trial judge found that the solicitors were not retained by her, and therefore owed her no duty. His Honour further held that even if the solicitors did owe her a duty, they had not breached it in conducting the sale as they did, because they acted on the instructions of her estranged husband who had her ostensible authority to give instructions on her behalf also. Both of these conclusions were reversed on appeal: the solicitors did owe Mrs Trajkovski a duty of care, and they had breached it by enabling that part of the proceeds of the sale to which she was entitled to be disbursed.

On s 5D: Because the trial judge considered that Mrs Trajkovski failed on duty and breach, he did not resolve questions of causation. It therefore fell to the Court of Appeal to address. The Court held that causation under s 5D was established – that is, it held the solicitors’ breach of duty in allowing Mrs Trajkovski’s share of the proceeds to be disbursed was a necessary condition of the occurrence of the harm she suffered and that it was appropriate for the scope of the solicitors’ liability to extend to that harm: [35], [47], [171].

Following the wreck of a vessel, SIEV 221, on rocks at Christmas Island in December 2010, representative proceedings were commenced against the Commonwealth of Australia for damages arising from alleged negligence. The classes of persons represented included survivors of the wreckage, relatives of people who died in the wreckage, and onlookers who witnessed the accident. By operation of the Christmas Island Act 1958 (Cth), the laws of Western Australia are in force in Christmas Island, including, relevantly, the Civil Liability Act 2002 (WA). The relevant provisions of the WA Civil Liability Act are in similar terms to the Civil Liability Act 2002 (NSW), though there are differences in numbering.

In answering separate questions identified from the pleadings, the primary judge found that the Commonwealth owed no duty of care to the classes of plaintiffs: though there was a not insignificant, foreseeable risk that a boat heading south towards Christmas Island could, if not intercepted, be shipwrecked on the cliffs of Christmas Island, that risk was inherent and obvious, and did not arise from any conduct on the part of the Commonwealth. The primary judge also made a number of findings concerning the precautions that a reasonable public authority in the position of the Commonwealth and its agents would have taken, but found that even if those precautions had been taken, SIEV 221 still would have been shipwrecked. The plaintiffs appealed. The Court of Appeal dismissed the appeal.

On s 5D: where a duty of care is said to arise from past choices of the Commonwealth to exercise statutory and prerogative powers, and where the particular breach alleged could only have caused the harm suffered if such powers had been exercised in a certain way, some adjustment may be necessary in the analyses of duty, breach, and causation to accommodate the application of the principles and concepts of negligence to the acts and omissions of the Commonwealth in this capacity: [208].

High Court cases cited in discussion:

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41

The respondent was injured and sued the occupier of the premises in which she was working (‘Network’); and her employer, a labour hire company (later substituted by the Workers’ Compensation Nominal Insurer). On appeal, Network and the Nominal Insurer raised a number of challenges to the findings of liability made by the primary judge.

Nowhere on the judgment was there any analysis of causation. The primary judge had not explained why, but for the absence of task rotation, supervision, training, or effective risk supervision, the respondent’s injury would not have occurred: [45]-[46].

In the case against Network, this would have involved findings of factual causation and scope of liability under s 5D, as well as grappling with the notion of “risk of harm” in s 5B. In relation to the claim against the Nominal Insurer under the Workers Compensation Act 1987 (NSW), the common law analysis would apply: Civil Liability Act, s 3B(1)(f). The Court observed that the analysis would probably have been similar at common law and pursuant to statute: [45].

The Court allowed the appeal and the Nominal Insurer’s cross-appeal, finding, inter alia, that the findings of breach should be set aside, and remitted the matter to the District Court for retrial.

High Court cases cited in discussion:

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-1; [1992] HCA 27

NSW Court of Appeal cases cited in discussion:

Vincent v Woolworths Ltd [2016] NSWCA 40

C by his tutor Sabatino v New South Wales [2001] NSWCA 380

The appellant was injured when he leapt from a vehicle driven by the respondent. The primary judge found that although the respondent owed a duty of care to the appellant as a passenger, it did not extend to protecting the respondent from “harm which is caused to himself”, and that even if it did, breach and causation were not made out.

On appeal, the Court held that, assuming that the scope of the duty owed by the respondent could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions, there was no basis for overturning the primary judge’s findings on breach or causation: [25]; [27].

The appellant bore the burden of proving that the respondent’s breach of duty was a necessary condition of the harm he suffered. The language of the primary judge was somewhat imprecise, and framed in a manner suggesting that the respondent bore the burden of proof on causation. This framed the issue in terms unduly favourable to the appellant. Despite these errors, the primary judge did not err in finding, on the basis of the evidence put at trial, that it was a matter of “speculation” whether the appellant’s injuries were likely to be less severe had the speed of the vehicle been reduced below 50 kph at the moment the appellant jumped onto the road: [44]-[51].

The respondent was injured when she tripped and fell on the raised ‘lip’ of the entrance to a children’s playground located at a store occupied by the appellant. The appellant had admitted that it owed a duty of care, but contended that the primary judge’s findings as to breach and causation could not stand. There was no issue as to the scope of liability in the present case.

The rejection of the appellant’s submission on causation by the trial judge was very different from a positive finding that if a ‘Watch your Step’ sign had been installed or the inclined slope had been painted, the respondent would not have fallen. The rejection of a submission that the respondent would not have seen a sign was distinct from a positive finding that she would have seen a sign and not sustained a fall. The primary judge had not made the positive finding, to the civil standard of proof, required by the terms of s 5D: [42]-[44].

The Court rejected the appellant’s submission in relation to the second and third alleged breaches. The primary judge’s findings reflected the language of s 5D. Although they did not expose any aspect of the reasoning process, little more could have been said, when the mechanism of the fall was the ‘sudden’ change in height at the entrance. If there had been no change or a gradual change in height, factual causation was established: [45]. However, the Court ultimately allowed the appeal on the basis that breach had not been established: [60].

Mr Donald was employed by the second respondent, which hired out his labour to the appellant. He worked as a labourer, primarily, although not solely as a jackhammer operator, removing old railway sleepers and replacing them with new ones. The primary judge held that Mr Donald sustained a back injury due to the negligence of the appellant. He also entered judgment against the second respondent in accordance with the Workers Compensation Act 1987 (NSW). The appellant appealed and the second respondent cross-appealed with respect to the findings on liability.

The primary judge did not err in preferring the evidence of one expert to the effect that Mr Donald had suffered from an internal disc disruption. Nor did he err in accepting the evidence of a medical specialist that cumulative trauma could be a cause of an injury such as that sustained by Mr Donald: [179]-[192].

Mrs Jurisich engaged the appellant solicitors in relation to the realisation of shares she held in her family company.  The appellants failed to advise Mrs Jurisich that proceeding with a buy-back of her shares, rather than by way of liquidation of the company, would expose her to a tax liability of about $600,000.

One of the effects of s 5D(3)(b) is to preclude a plaintiff from giving testimonial evidence as to their mental processes relevant to the question of causation.  In consequence, factual causation requires an assessment of all the evidence, and a consideration of the proper inference to be drawn from it: [67].  Another consequence is that the question of credibility, and more generally the advantages enjoyed by the trial judge, may in some cases be diminished: [68].

The requirement that the question of factual causation be decided “subjectively” obliges the court to decide what, on the balance of probabilities, the particular plaintiff would have done in the proved circumstances had there been no breach of duty on the part of the defendant: [72].  In this case, the essential question was whether, properly advised as to the tax consequences of the two choices open to her, Mrs Jurisich would nonetheless have chosen a share buy-back as her preferred method for realising the value of her shares, or whether she would have chosen liquidation: [73].

Mr Proudlove suffered catastrophic injuries as a passenger in a vehicle driven by Mr Burridge when it collided with an escaped horse on an unlit road at night.  As Mr Burridge approached, another driver stood on the road, some distance in front of the horse, and waved.  At the time of the accident, WA did not have a no-fault compensation scheme for motor vehicle accidents.  At trial, Mr Proudlove proved breach of duty of care, but failed on causation.

Newnes and Mitchell JJA held that ss 5C and 5D of the Civil Liability Act 2002 (WA) required Mr Proudlove to prove that the collision and Mr Proudlove’s consequent injuries would have been avoided if Mr Burridge had taken reasonable care.  Mr Proudlove failed to achieve this on the evidence brought before the trial judge.

In dissent, Martin CJ applied March v E & MH Stramare Pty Ltd and held that, as a matter of common sense, failure to keep a proper lookout or to pay due care and attention resulting in a failure to identify and respond appropriately to a risk or hazard on the roadway is a frequent cause of motor accidents, and so, in the absence of other evidence, it was reasonable to infer that Mr Burridge’s negligence caused or materially contributed to the vehicle’s collision with the horse and therefore to Mr Proudlove’s injuries.

High Court cases considered include:

Two trucks were damaged when they collided in thick fog at an intersection on the Hume Highway.  The primary judge found that both drivers were negligent: Mr Hukins (employed by Pierce) in attempting the right hand turn in very poor visibility, and Mr Mead (employed by Doble) in travelling at an excessive speed in very poor visibility.  His Honour assessed Doble’s responsibility at 40%, and Pierce’s at 60%.  On appeal, Doble challenged the finding that any breach of duty by Doble was causative of Pierce’s loss.

The Court of Appeal held, applying s 5D and Wallace v Kam, that Pierce bore the burden of establishing on the balance of probabilities that if Mr Mead had not been negligent, Pierce would not have suffered harm: [40].  Pierce did not have to establish the speed at which Mr Mead should have been travelling, and then prove that the crash would not have occurred had he been travelling at that speed: [68], Mobbs v Kain distinguished.  Rather, it was enough that the NSW Government’s Heavy Vehicle Drivers Handbook required Mr Mead to drive at a speed which allows the vehicle to stop within the distance that can be seen to be clear, and Pierce proved that Mr Mead was not driving in accordance with this rule.  Had Mr Mead complied with that rule, he would have been able to avoid the crash and Pierce would not have sustained the harm: [48]-[52].

High Court cases considered:

The respondent suffered facial palsy caused during a surgical procedure to remove a tumour. The surgeon and hospital appealed against the District Court’s finding of negligence and, in part, the appeal turned on the question of whether the primary judge erred in finding that there was a negligent failure to warn which was causative of the relevant damage.

In order to be satisfied, for the purposes of s 5D(1), that negligence caused particular harm, it is necessary for the Court to find that negligence was a necessary condition of the occurrence of the harm.

In the present case, the question as to causation posed by s 5D of the Act required consideration of whether the claimant would have had the operation but for the alleged breach of duty. The evidence at trial indicated that the claimant held a belief concerning her tumour and the need for surgery which was not attributable to any breach of duty by the hospital or the medical practitioners. Any failure to warn was therefore not causative and did not meet the requirements of s 5D(1). [106], [114], [128]

The respondent was injured when his motorcycle struck a median strip when he was riding through an intersection. The primary judge found that, but for the absence of a “Keep Left” sign, the respondent’s motorcycle would not have come into contact with the median strip which caused him to lose control of the motorcycle.

Causation is dependent upon the satisfaction of both factual causation and the scope of liability pursuant to s 5D. Factual causation requires that the negligence was a necessary condition of the harm, pursuant to s 5D(1)(a). If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent, that matter is to be determined subjectively in light of all the relevant circumstances. The scope of liability will then depend upon the appropriateness for the scope of the negligent person’s liability to extend to the harm so caused, pursuant to s 5D(1)(b). For the purpose of determining the scope of liability, a court is to consider, among other things, whether or not, and why, responsibility for the harm should be imposed on the negligent party.

In the present case, contrary to the finding of the primary judge, the evidence did not support the conclusion that it was more likely than not that the absence of a “Keep Left” sign caused the respondent’s injury. [178]-[184]

The appellant sought professional negligence damages against his lawyer for the delayed settlement of a family business dispute. One issue for determination on appeal was whether the respondents’ breaches of duty and retainer caused the appellant to pay more under a settlement agreement than he would otherwise have paid.

Section 5D(1)(a) requires that the plaintiff bear the burden of establishing, on the balance of probabilities, that the negligence was a “necessary condition of the occurrence of the harm”. It also requires that the plaintiff establish “harm”, which in the present case meant that the appellant must show that in financial terms he was worse off than he would have been absent the respondents’ negligence. The questions of loss and causation were inextricably interwoven.

In the present case, there was no clear evidence that the strength or weakness of the appellant’s legal position was material to the outcome of the settlement negotiations. The appellant failed to prove that he suffered a financial loss caused by the respondents in accordance with s 5D. [25], [29]-[30]

The appellant commenced proceedings against the respondent solicitors, alleging that their negligent drafting of a deed resulted in a subsequent loss on the proceeds of sale.

The effect of s 5D(1)(a) is that factual causation must be determined by the “but for” test. The test will not be satisfied by showing that taking the steps the plaintiff alleges should have been taken might have made a difference and the plaintiff must show that it is more probable than not that, if the defendant had taken reasonable care, the harm would have been prevented. However, if the defendant’s negligence is necessary to complete a set of conditions jointly sufficient to account for the occurrence of the harm, the test of factual causation will be satisfied.

In exceptional cases, where the “but for” test cannot be satisfied, the court is to consider whether or not and why responsibility for the harm should be imposed on the negligent party under s 5D(2).

The plaintiff must also establish that it is appropriate for the scope of the negligent party’s liability to extend to the harm caused under s 5D(1)(b). Whilst the determination of factual causation is “entirely factual”, a determination as to the appropriateness of the application of the scope of liability is “entirely normative”. The court will generally be guided by precedent when addressing this normative question, but in novel cases s 5D(4) requires the court to consider and explain in terms of legal policy whether or not and, if so, why responsibility for the harm should be imposed on the negligent party.

In the present case, if the relevant Deed had been drafted clearly and unambiguously, the appellant would likely have succeeded in claiming the proceeds of the sale. The appellant therefore satisfied the test for factual causation under s 5D(1)(a). However, the appellant failed to avail itself of a number of protections conferred by the Deed that would have enabled it to avert the relevant loss. Therefore, there was no basis for imposing liability for negligence in drafting the Deed and the appellant had not demonstrated that it was appropriate that the solicitors’ liability should extend to the loss claimed. [103]-[106], [122]-[129]

High Court cases cited in discussion:

The appellant alleged that the respondent was professionally negligent when acting on behalf of the family trust during an attempted acquisition. The appellant argued that the primary judge erred in assessing causation under s 5D of the Act as he failed to have regard to all relevant subjective circumstances as required by s 5D(3). It was submitted that the primary judge’s findings turned on credit and, insofar as that was the case, were erroneous having regard to objective material or incontrovertible facts.

In order to establish factual causation, the appellant had to establish that negligence was a necessary condition of the harm. This determination is entirely factual and involves nothing more or less than the application of the “but for” test.

The inquiry into causation is retrospective and seeks to identify what happened and why, focusing on the conduct or omission which is found to constitute the defendant’s breach.

In the present case, the question whether the appellant would have completed the purchase had the respondent provided timely advice was a matter to be determined subjectively in light of all the relevant circumstances under s 5D(3)(a). The primary judge did not place undue emphasis on certain matters or fail to take relevant matters into account. [79]-[83], [91], [93]

The respondent radiologist negligently failed to diagnose the appellant’s aneurysm. The aneurysm then ruptured during a subsequent operation, without any lack of care or skill on the part of the surgeons. The primary judge found that the appellant’s loss was not caused by the respondent’s negligence because it was not appropriate for the scope of the respondent’s liability to be extended to the relevant injuries under s 5D(1)(b).

The Act effects a substantive change insofar as it is directed to admissibility under s 5D(3)(b) or the ways in which courts are to determine issues under ss 5D(2) and (4). Whether or not s 5D will produce a different result from common law has not been decided.

It might seem that s 5D(1) has the effect that legal causation requires there to be a favourable determination of the two elements in paragraphs (a) and (b). This is not the case as factual causation is not a necessary precondition for legal causation. When reading s 5D(1) and (2) together, it is clear that legal causation may be established in cases where there is factual causation, and in (exceptional) cases where factual causation is not established. It is also clear that factual causation will not be a sufficient condition for legal causation. That was the position at common law and as such 5D(1)(b) and 5D(4) proceed on that basis.

The determination of factual causation is not a value-free activity undertaken without reference to context. Policy considerations are highly fact-specific and the factual considerations which establish factual causation remain relevant in considering the proper scope of liability. [11]-[12], [41,] [84]-[86], [109]-[111], [115]

High Court cases cited in discussion:

The appellant developed congenital varicella syndrome after her mother contracted chickenpox during pregnancy. The appellant claimed that the respondent had been negligent in failing to offer to immunise her mother. The primary judge found that the appellant had not established that, had the treatment been administered, her mother probably would have avoided developing chickenpox.

The Ipp Committee recommended the insertion of s 5D(2) to bridge the evidentiary gap for ‘exceptional’ cases, to enable a court to award damages for negligence, even where factual causation is not established. It enables a defendant to be liable for the total harm suffered by a plaintiff, even though it cannot be said that, but for the conduct of the defendant, the plaintiff would not have suffered the total harm.

The application of s 5D(2) requires an examination of the Ipp Report, an analysis of the causation issues discussed by Professor Stapleton, and the application of normative considerations to circumstances which may or may not constitute ‘an exceptional case’. These normative considerations may require that evidence is adduced. For a court to embark upon this inquiry the matter needs to have been raised at trial for the benefit of a full argument.

As s 5D(2) was not raised at trial, the Court did not undertake an inquiry as to the application of s 5D(2) on appeal. The challenge to the primary judge’s findings on causation failed. [153]-[156], [213]-[218], [221]

High Court cases cited in discussion:

The respondent operated on the appellant without warning of the risk of paralysis and the risk of neurapraxia. The risk of neuraplaxia materialized. At first instance, it was found that the respondent had negligently failed to warn of neuraplaxia but that the appellant would have chosen to undergo the surgery in any case. On that basis, the failure to warn was not a necessary condition of the occurrence of the harm. On appeal, the Court of Appeal assumed that the appellant had negligently failed to warn the respondent of the risk and that the appellant would not have undergone the procedure. On that assumption, the majority found that the respondent was not liable for the neuraplaxia.

The distinction the Act draws between factual causation and scope of liability in s 5D(1) should not be “obscured by judicial glosses”. A determination under s 5D(1)(a) is entirely factual, and involves nothing more or less than a determination that the relevant harm would not have occurred but for the negligence. Here, the determination of factual causation turns on whether the patient proves that they sustained as a consequence of the medical treatment injury which they would not have sustained if they had been warned of the relevant risks. That turns on the question of what the patient would have chosen to do if the practitioner had warned of the relevant risks and therefore is governed by s 5D(3). Factual causation may be established where the patient would have chosen not to undergo the treatment at all if warned of the risks or where the patient would have chosen not to undergo the treatment at the time at which the treatment in fact took place.

A determination under s 5D(1)(b), however, is entirely normative. The question is whether it is appropriate for the scope of the negligent practitioner’s liability to extend to the physical injury in fact sustained by the patient. In an established category of case the question is answered by application of precedent. In a novel case, s 5D(4) applies and what is required is the identification and articulation of an evaluative judgment by reference to the purposes and policy of the relevant part of the law.

In the present case, factual causation was satisfied under s 5D(1)(a) but s 5D(1)(b) was not satisfied as the appellant should not be compensated for the materialisation of a risk which he was prepared to accept. [14]-[23], [29]-[31], [39]-[40]

The respondent was knocked over when two individuals attempting to carry out a robbery fled out the doors of a Harvey Norman store which was under the care and control of the appellant. The primary judge found in favour of the respondent. The appellant sought leave to appeal, in part, on the basis that there was no discussion of causation by the primary judge.

Unlike duty, which must be assessed prospectively, causation is assessed with hindsight under s 5D(1)(a). The structure of s 5D rests upon a fulcrum requiring that the negligence be a necessary condition of the harm, commonly identified as the ‘but for’ test: s 5D(1)(a). The section further reflects the general law understanding that this test is both over-inclusive and under-inclusive. To the extent that it is over-inclusive, its consequences may be limited by the second limb of subsection (1), incorporating an ‘appropriateness’ test for the scope of liability. The possibility that a ‘but for’ test will, in the “exceptional” case, exclude liability where it should be imposed, is provided for in subsection (2).

Section 5D(2) cannot be relied upon to establish causation absent proof that the negligence was a necessary condition of the injury. However, it may have been open to the respondent in the present case to prove causation by establishing that, if specified steps had been taken, which the appellant was obliged to take, it was more likely than not that the respondent would not have suffered the harm which he did.

The case was not one in which the mere coincidence of the nature of the risk and the harm suffered could lead to an inference of a relevant causal connection. The primary judge, in any case, erred in failing to apply s 5D of the Act altogether. [28]-[30], [35], [39], [74]

High Court cases cited in discussion:

The appellant fell and suffered injury whilst negotiating a passage between the respondent’s apartment and her own apartment. Both apartments were located in a building owned by the respondent. Because the appellant suffered a severe head injury, she experienced amnesia and was not able to explain exactly what had happened.

In order to discharge the persuasive onus of causation (in this case a breach of duty by failing to install a balustrade), the plaintiff must prove that the taking of such a step would, more probably than not, have prevented or minimised the injury which occurred: [70]. A defendant who negligently exposes a plaintiff to risk of injury or damage will not be liable unless the plaintiff can persuade the trier of fact that it was probable the risk “came home”: [71].

There was no error in the trial judge not being satisfied as to the mechanism of the fall. Because the appellant could not establish the point from which she fell, she could not prove that the risk of injury to which she was exposed by the lack of balustrade had any bearing on the injuries she suffered: [72].

High Court cases cited in discussion:

Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

NSW Court of Appeal cases cited in discussion:

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307

The appellant’s partner was fatally injured when the car she was driving ran off the road and hit a tree. The appellant claimed that the accident was caused by loose gravel on the road surface and that the respondent was negligent in failing to provide adequate signage to indicate that the road had been resurfaced. The primary judge dismissed the claim on the basis that the Council’s breach of duty was not causative of the appellant’s loss.

Both at common law and now pursuant to s 5E of the Act, the plaintiff bears the onus of proving any fact relevant to causation. An actual persuasion is required to satisfy the burden of proof, meaning that the Court must be satisfied that the probabilities of the fact’s existence is greater than the possibilities of its non-existence. A competing finding may be described as a possibility and the likelihood of its occurrence, a probability; in this context, however, it is common to use the term “probability” to refer to a state of satisfaction greater than 50% and the term “possibility” to refer to something less likely.

In the present case, the primary judge did not err in the assessment of causation. [197], [320], [332]-[333]

Note: Beazley P dissented on the issue of causation.

NSW Court of Appeal cases cited in discussion:

The respondent slipped and fell on a boat ramp during the course of employment as a ferry operator. The primary judge awarded damages without properly establishing a breach of duty of care under s 5B, and without concluding that the appellant’s breach caused the injury under s 5D.

A plaintiff may discharge the onus of proof of causation imposed by s 5E by relying upon the inferences open on the facts of the case. In order for causation to be established by inference, however, it is necessary that according to the course of common experience the more probable inference from the circumstances should be that the injury arose from the defendant’s negligence. A court is entitled to draw inferences from slim circumstantial facts that exist so long as that goes beyond speculation and if the available inference is considered more probable than other possibilities.

The respondent failed to prove that any breach of duty on the part of the appellant caused his injuries. [75]-[76], [77], [205]

High Court cases cited in discussion:

Mr Cox was injured when the light aircraft that he was piloting collided with a Ferris wheel during an attempted landing at the Old Bar Aircraft Landing Area (‘ALA’), an unlicensed aerodrome not subject to any regulatory oversight. The Ferris wheel had been erected by the Mid-Coast Council two days earlier and encroached on the splay of the grass airstrip (the area through which aircraft may travel when taking off or landing). The Council was found to have been negligent in a claim by a passenger on the Ferris wheel, but the primary judge held that Mr Cox’s claim was precluded by s 5L of the Civil Liability Act as the harm suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity. Mr Cox appealed and the Court of Appeal dismissed the appeal.

On s 5F: the identified risk, being that of a collision with an obstruction in the splay of the ALA, was obvious within the meaning of s 5F. Though reasonable to expect that the splay would be clear of obstacles, it remained a pilot’s responsibility to ensure that it was in fact clear: [64]. The fact that others landing at the ALA on the day had seen the Ferris wheel was relevant to the assessment of obviousness. Though Mr Cox did not see the Ferris wheel on his flyover, the reason for the flyover was the obvious risk that an obstacle might be in the splay: [65]-[66]. That a risk was not ‘expected’, in the sense that it had a low probability of occurring, does not affect the characterisation of that risk as obvious: [68].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant. The primary judge found in favour of the defendant and she brought an appeal.

On s 5F: The appellant was an experienced campdrafter. Her age was a characteristic to be attributed to a reasonable person in her position for the purpose of s 5F(1): [150].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5F: A wide approach must be taken when identifying whether the risk was obvious: [130].

Ms Bishop tripped and fell on a kerb in a pedestrian precinct. She sustained injuries to her right hip as a result. The kerb separated a walkway from a footpath. It was 16cm tall at one end and decreased in height over a length of eight metres until the walkway and footpath were flush. At the point where Ms Bishop tripped, it was between four and five centimetres tall. Ms Bishop commenced negligence proceedings in the District Court against the Council of the City of Sydney. The primary judge found in favour of Ms Bishop, holding that that the Council owed her a duty of care and had been negligent in failing to install – or requiring the developer to install – a yellow reflective strip along the kerb, and ordered that the Council pay her substantial damages. The Council appealed on liability. By majority, the Court of Appeal allowed the appeal, holding that if the Council did owe Ms Bishop a duty of care, the risk of tripping on the kerb was an ‘obvious risk’, such that the Council’s duty did not extend to warning her of it. Further, the risk of a person tripping on the kerb was not such that a reasonable person in the Council’s position would have taken the precaution of installing a yellow reflective strip. And finally, even if duty or breach were established, Ms Bishop had not established causation.

On s 5F: the hazard presented by the kerb was an obvious risk within the meaning of s 5F, and so, by operation of s 5H, the Council bore no duty to warn of it: [10], [28]-[29].

High Court decision cited in discussion:

Ghantous v Hawkesbury City Council [reported with Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29]

The respondent tripped and fell on a steel cable strung between low timber posts which formed a cable fence separating a car-parking area from playing fields at a park. Immediately behind the cable fence, closer to the fields, was a row of large concrete blocks, extending over about 40 m. The blocks had been installed at a later date than the fence. The respondent commenced proceedings against Hawkesbury Sports Council and Hawkesbury City Council, alleging that the Councils were negligent in failing to take precautions following the installation of the blocks and the retention of the cable, and further that they were negligent in failing to remove the cable. The primary judge found in favour of the respondent. The Councils appealed. By majority, the appeal was allowed.

On s 5F: the risk of someone tripping or falling on the cable was ‘obvious’ within the meaning of this section, and was not such that a reasonable person in the Councils’ position would have taken the precaution of removing the cable (notwithstanding that doing so would not be onerous): [40].

Note: Simpson AJA dissented on liability.

In 2015, the appellant, aged 70 at the time, tripped outside the entrance to an aged care facility owned by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10-20mm between the edges of the concrete and brick pavers. Those differences had been present since 2000 or earlier. Before the primary judge, the appellant had alleged that the respondent was negligent in failing to remedy the level differentials by raising the brick pavers. The primary judge rejected that claim, holding there was no breach of duty of care. The Court of Appeal dismissed on appeal.

On s 5F: Because any risk of tripping was ‘obvious’, the respondent was not required to warn of it: [29].

The respondent suffered injuries to his neck, shoulder and back when he tripped over the corner of a raised timber platform while walking across the lobby of the Manly Pacific Hotel, which was occupied by the appellant.

The majority held, in relation to s 5F, that the risk of tripping on the raised platform would not have been “obvious” to a reasonable person in the respondent’s position: [69].  Despite seeing certain “visual cues” as to the existence of the platform, the respondent interpreted these as the respondent’s expert witness suggested they might be, such that he was not aware of the platform: [64]. Accordingly, s 5H did not apply to remove any duty on the part of the appellant to warn of the risk: [69] (Meagher JA, Macfarlan JA agreeing).  In dissent, Fagan J held that the risk of tripping was obvious in circumstances where the platform was visible from at least 20 metres away, its colour contrasted strongly with the surrounding floor, and this was enhanced by LED lighting around its base: [77]-[80].  His Honour said that ss 5F, 5G and 5H are ill adapted to cases of occupier’s liability: [81].

New South Wales Court of Appeal cases considered:

Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. In the first instance, the risk was characterised as an ‘obvious risk’ under s 5F, such that the Council did not owe the appellant a duty of care to warn of the risk by the erection of a warning sign. On appeal, the appellant argued that the primary judge erred in finding that the risk of harm was an ‘obvious risk’.

Section 5F involves the objective determination of whether the plaintiff was exposed to a risk of harm which would have been obvious to a reasonable person in their position. The focus of inquiry is not upon the tortfeasor but, rather, is upon a reasonable person in the position of the person who has been injured.

Whether or not a risk is ‘obvious’ may depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff. ‘Obvious’ means that both the factual scenario facing the plaintiff and the risk itself would be apparent to and recognized by a reasonable person exercising ordinary perception, intelligence and judgment. In assessing this, the Court will take into account the age and level of experience of the plaintiff. A risk may be obvious even if it has a low probability of occurring and is not prominent, conspicuous or physically observable.

The plaintiff’s actual knowledge of the risk of harm is irrelevant except insofar as it is relevant to the forward looking inquiry as to whether the risk would have been obvious. However, as the ‘obvious risk’ inquiry is into the knowledge that a reasonable person in the appellant’s position should be taken to have had, it may be relevant to know the extent to which they were actually aware of the relevant risk.

In the present case, the primary judge did not err in finding that the risk of harm was obvious within the meaning of the Act, having regard to the ubiquity of the gaps between the wooden planks of the bridge and the possibility of a wheel being jammed when the bicycle was near the railing: [136]-[150], [202].

NSW Court of Appeal cases cited in discussion:

The respondent was injured after falling down stairs to an ice rink whilst wearing ice skates. On appeal, the appellant submitted that the risk of harm which materialised was an “obvious risk” within the meaning of s 5F of the Act.

An “obvious risk” for the purposes of s 5F has been described as one which is clearly apparent or easily recognised or understood. It may include a risk that has a low probability of occurring and one which is not prominent, conspicuous or physically observable.

The forward looking inquiry required by s 5F is whether the risk of harm which eventuated and caused the relevant injury would have been obvious to the hypothetical reasonable person in the position of the plaintiff. The actual knowledge of the injured person is irrelevant except to the extent that how they acquired that actual knowledge may have been relevant to the forward-looking inquiry.

In the present case, the primary judge identified the risk in question as not just that of slipping and falling when descending the stairs whilst wearing ice skates, but involved the uneven dimensions of the stairs and the fact that they were wet. The evidence did not justify this emphasis and the primary judge erred in not finding that the risk of harm was obvious within the meaning of s 5F. [24], [41]

NSW Court of Appeal cases cited in discussion:

The respondent was injured when she slipped stepping from wet tiles onto on a downward moving travelator. The primary judge found that the appellant had breached its duty of care because it had allowed water to accumulate near the travelator and had taken no steps to protect the respondents from the risk of slipping. The primary judge found that the s 5F definition of “obvious risk” was not applicable to the present case.

Although a finding that a risk of harm is an “obvious risk” eliminates any common law duty to warn, it does not automatically prevent a defendant being held liable for breach of duty.

“Obvious” means that both the condition and the risk are apparent to and would be recognised by a reasonable man in the position of the plaintiff, exercising ordinary perception, intelligence and judgment. The test is an objective one. However, the plaintiff’s evidence will be relevant to the assessment of what a reasonable person knew about the relevant risk.

In the present case, there was no sound basis for overturning the primary judge’s finding that the risk was not obvious for the purposes of s 5F. [57], [59]-[61] [66]

NSW Court of Appeal cases cited in discussion:

Mr Capar was employed as a security guard at Lidcombe Power Centre. In March 2010 an intruder entered the premises by climbing through a gap above an external roller door and up the fire stairs. In February 2010 an intruder had accessed the premises in the same way. Mr Capar, having seen the intruder outside the premises on CCTV and subsequently lost sight of him, left the control room to investigate. The intruder, when found, was carrying an axe and approached Mr Capar threatening to kill him. Mr Capar returned safely to the control room, but subsequently suffered psychiatric harm as a result of the incident. The primary judge dismissed Mr Capar’s claims against the owner of the premises, the company providing security services to the premises and his own employer on the basis that Mr Capar, by leaving the safety of the control room, had voluntarily assumed the risk in question.

On s 5G: section 5G creates a presumption of knowledge in the case of obvious risks, but for the purposes of the defence of voluntary assumption of risk this presumed knowledge alone is not sufficient; voluntariness must still be shown: [43]-[44]. For these purposes, attendance at an unsafe workplace will not establish consent to unsafe work conditions: [49]-[53].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5G: Section 5G can exculpate a defendant where a plaintiff asserts “negligence” by a defendant for failing to warn a plaintiff where the risk was obvious: [146].

A 12 year old elite swimmer suffered tetraplegia after slipping whilst diving into the shallow end of a pool. The primary judge gave judgment in favour of the Council, and judgment in favour of Ms Miller against the School. One issue on appeal was how the risk of harm should be formulated.

Section 5G extends the rebuttable presumption of awareness of obvious risks to cases where the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. Section 5G proceeds on the basis that the “risk of harm” is sufficiently general that it may be described as a “type” or “kind” of risk, whose precise details need not be known. Section 5G should be read with ss 5C and 5B. [112]-[114]

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. In the first instance, the risk was characterised as an “obvious risk” and the primary judge found that the appellant was not able to rebut the presumption under s 5G.

The logic of Division 4 of the Act is that once the s 5F obvious risk is identified, s 5G deems the person injured to be aware of that risk and places the burden on that person to prove to the contrary. It is irrelevant whether the person is aware of the precise nature, extent or manner of the occurrence of the risk – under s 5G a person will be aware of a risk if the person is aware of the type or kind of risk. The appellant failed to prove she was unaware of the risk on appeal. [153], [198], [202]

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5H: The defendant established that in the circumstances, it had no obligation to inform the plaintiff of the risk of falling from her horse during the campdraft event. The risk was obvious, involving riding at speed on a horse and corralling a beast, in a particular required configuration, in a relatively confined space where the activity itself is known to entail a risk of falling: [145].

Ms Bishop tripped and fell on a kerb in a pedestrian precinct. She sustained injuries to her right hip as a result. The kerb separated a walkway from a footpath. It was 16cm tall at one end and decreased in height over a length of eight metres until the walkway and footpath were flush. At the point where Ms Bishop tripped, it was between four and five centimetres tall. Ms Bishop commenced negligence proceedings in the District Court against the Council of the City of Sydney. The primary judge found in favour of Ms Bishop, holding that that the Council owed her a duty of care and had been negligent in failing to install – or requiring the developer to install – a yellow reflective strip along the kerb, and ordered that the Council pay her substantial damages. The Council appealed on liability. By majority, the Court of Appeal allowed the appeal, holding that if the Council did owe Ms Bishop a duty of care, the risk of tripping on the kerb was an ‘obvious risk’, such that the Council’s duty did not extend to warning her of it. Further, the risk of a person tripping on the kerb was not such that a reasonable person in the Council’s position would have taken the precaution of installing a yellow reflective strip. And finally, even if duty or breach were established, Ms Bishop had not established causation.

On s 5H: the hazard presented by the kerb was an obvious risk within the meaning of s 5F, and so, by operation of s 5H, the Council bore no duty to warn of it: [10], [28]-[29].

High Court decision cited in discussion:

Ghantous v Hawkesbury City Council [reported with Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29

An aircraft owned by the respondent and driven by its directing mind, Dr Alterator, was damaged when it collided with a kangaroo on landing at Kempsey Aerodrome. The primary judge held that the appellant Council had breached its duty of care to aerodrome users by, inter alia, not issuing a notice to airmen (NOTAM) stating that kangaroo incursions into the aerodrome had increased to dangerous levels. At the time of the accident, Dr Alterator was aware of a warning published by Airservices Australia in the ‘ESRA’ notice for Kempsey Aerodrome, reading “1. Kangaroo hazard exists”.

The respondent should have been, and was, aware of the obvious risk of colliding with a kangaroo on the runway at Kempsey Aerodrome whilst landing. It was not possible on the evidence to conclude there was a heightened level of risk at the time of the accident, such that it was not properly described as within the obvious risk accepted by the pilot: [33]-[34].

Section 5H(2) was not engaged. Though the ERSA and NOTAM contained information provided by the Council, each appeared on a website operated by Airservices Australia. Accessing a website could not be said to constitute a “request” to third parties who provided information to the service provider: [36].

Simpson AJA, dissenting, held that a liberal interpretation should be given to s 5H(2)(a). As the source of the information on the Airservices Australia website was in effect the appellant, it was not unreasonable to construe consulting the website as an indirect request for advice or information from the defendant: [104], [106]-[107]. Further, the defendant’s breach was not a “failure to warn”, but rather a “failure to provide information” which it had an obligation to provide: [106]-[107]; [110]-[111].

High Court cases cited in discussion:

Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19

NSW Court of Appeal cases cited in discussion:

Chotiputhsilpa v Waterhouse [2005] NSWCA 295

Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. In the first instance, the risk was characterised as an “obvious risk”. The questions arose on appeal whether the primary judge erred in finding that the risk of harm was obvious for the purposes of s 5H and whether the Council needed to establish that the appellant voluntarily assumed the obvious risk identified.

If the defendant can establish that the relevant risk was “obvious” pursuant to s 5H(1) of the Act, this removes any duty on the part of the defendant to warn of the risk. In the present case, whilst the Council should have erected a warning sign, s 5H resulted in it not being liable for that default because the risk against which it would have warned was obvious. The appellant’s claim therefore failed.

Section 5H operates independently of any need to prove the voluntary assumption of risk. It also explains that a finding of an “obvious risk” does not negate a finding of breach of duty otherwise and may assist where the defence of voluntary assumption of risk is established. [154]-[155], [194], [202]

The respondent was injured after falling down stairs to an ice rink whilst wearing ice skates. An issue which fell to be determined on appeal was whether the duty of care contended for by the respondent was to warn the respondent of an obvious risk within the meaning of s 5H(1).

Section 5H is concerned only with a duty of care to warn of an obvious risk. The section does not apply to a duty of care to take any other reasonable step to prevent or avoid or minimise harm from an obvious risk.

If a risk is an ‘obvious risk’ pursuant to s 5F(1) then the effect of s 5H(1) is that the defendant will not owe a duty of care to the respondent. In the present case, as it was not suggested that s 5H(2) (which provides for specific exceptions to s 5H(1)) applied, the appellant did not owe a duty of care to the respondent to warn him of what was an obvious risk. [43], [52]

NSW Court of Appeal cases cited in discussion:

Angel v Hawkesbury City Council [2008] NSWCA 130

Mr Capar was employed as a security guard at Lidcombe Power Centre. In March 2010 an intruder entered the premises by climbing through a gap above an external roller door and up the fire stairs. In February 2010 an intruder had accessed the premises in the same way. Mr Capar, having seen the intruder outside the premises on CCTV and subsequently lost sight of him, left the control room to investigate. The intruder, when found, was carrying an axe and approached Mr Capar threatening to kill him. Mr Capar returned safely to the control room, but subsequently suffered psychiatric harm as a result of the incident. The primary judge dismissed Mr Capar’s claims against the owner of the premises, the company providing security services to the premises and his own employer on the basis that Mr Capar, by leaving the safety of the control room, had voluntarily assumed the risk in question.

On s 5I: reliance on the concept of “inherent risk” is misguided where breach of a duty of care has been established. In a case such as the present it is doubtful that s 5I serves any independent purpose. While it is perhaps not impossible that a person may owe a duty of care in respect of a risk which cannot be avoided by the exercise of reasonable care (if the formulation of the duty and the identification of the risk occur at different levels of particularity) the possibility of a defendant being held liable for a breach of a duty of care in respect of a risk the materialisation of which could not be avoided by the exercise of reasonable care is incoherent. In short, s 5I adds nothing to the analysis of breach required by s 5B: [172].

The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. If the operation had been terminated earlier, he would not have suffered the injuries which led to the paraplegia. In resisting liability, the anaesthesiologist relied on, inter alia, s 5I of the Act.

Section 5I should be understood as referring to the exercise of skill having no causal consequence on the outcome. In circumstances such as the present, the provision may be read as operating where the skill of the surgeon does not affect the risk of an adverse outcome: [44]. Where s 5I is raised, the plaintiff must nonetheless establish legal causation under s 5D; the establishment of causation often has the consequence of negating s 5I: [47].

The majority found that s 5I did not provide a defence. The risk which accompanied the surgery was the neurological collapse of the spinal column. This would not have occurred if the operation had been terminated earlier. The operation would have been terminated had reasonable care and skill been exercised. Accordingly, it could not be said that the risk was an “inherent risk”: [49]; [206].

In dissent, Simpson JA held that once it was accepted that the respondent’s condition warranted performance of the operation as an emergency surgery, and that surgery carried a risk of paraplegia, section 5I applied: [349].

High Court cases cited in discussion:

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

NSW Court of Appeal cases cited in discussion:

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311

The respondent was injured when the motorcycle he was riding collided with another motorcycle ridden by his friend, Mr Lamont. The motorcycles were unregistered and uninsured. The respondent and his friend had been intoxicated and sleep-deprived at the time of the collision.

In order for there to be no liability for the materialisation of an inherent risk, it must be proven that the risk cannot be avoided by the exercise of reasonable care and skill. The evidence did not permit a finding that Mr Lamont was incapable of exercising reasonable care and skill to avoid the risk of the motorbikes colliding, i.e., by riding on the correct side of the road, not exceeding the speed limit, and keeping a proper lookout: [110]; [114].

The appellant’s characterisation of the risk, as being the likelihood of physical injury or damage caused by driving motor bikes together in the dark whilst intoxicated, should be rejected. Defining the relevant risk in this way is to confuse cause and risk: [116]. The appellant’s construction of s 5I would give rise to inconsistency within Division 5 of the Civil Liability Act, and convert all potentially dangerous activities involving an “obvious risk” into an “inherent risk”. This is not warranted by the statutory language or the policy considerations underlying the Civil Liability Act or the Motor Accidents Compensation Act: [117].

High Court cases cited in discussion:

Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39

NSW Court of Appeal cases cited in discussion:

Paul v Cook (2013) 85 NSWLR 167; [2013] NSWCA 311

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

The respondent was injured when the armrest of a moving ski-lift chair struck her from behind. The appellant successfully contested the primary decision in which a breach of the duty was found causative of the respondent’s injuries pursuant to ss 5D, 5E.

In order for there to be no liability for the materialisation of an inherent risk pursuant to s 5I, it must be proven, inter alia, that the risk “cannot be avoided by the exercise of reasonable care and skill”. In this instance the respondent’s injuries were not the materialisation of an inherent risk because they could have been avoided by the exercise of reasonable care and skill. [167]

The respondent radiologist negligently failed to diagnose the appellant’s aneurysm. The aneurysm then ruptured during a subsequent operation, without any lack of care or skill on the part of the surgeons. The primary judge found that the appellant’s loss was not caused by the respondent’s negligence because it was not appropriate for the scope of the respondent’s liability to be extended to the relevant injuries under s 5D(1)(b). He also gave reasons as to why he would reject the respondent’s contention that he was not liable pursuant to s 5I because the injuries were suffered as a result of the materialisation of an inherent risk.

The harm suffered by the appellant resulted from the materialisation of a risk occurring that could not be avoided by the exercise of reasonable care and skill. The “reasonable care and skill” referred to in s 5I(2) is not necessarily limited to that of the defendant; it depends upon the relationship between the act of negligence and exposure to inherent risk and there was no such relationship in the present case.

Section 5I precludes liability for the materialisation of an inherent risk, however s 5I(1) and (2) operate quite differently. In s 5I(2), the definition of a “risk of something occurring” is forward-looking, to a harm that has not yet happened. In contrast, s 5I(1) is backwards-looking, and considers the materialisation of an inherent risk that led to the “harm suffered”. It is the wrong approach to focus on the occurrence and pose it as the ultimate question as to whether what occurred could have been avoided with reasonable care and skill.

Once s 5I is engaged it will provide a complete defence to any liability falling within Part 1A. This is clear from the broad and casual language of s 5I, where the phrase “as a result of” reflects the language of s 5A(1) rather than s 5D(1). Consequently, if a case can conveniently be decided under s 5I, it should be.

In the present case, the the respondent was not liable under s 5I. [7]-[9], [15]-[17], [60]-[69], [70]-[78]

High Court cases cited in discussion:

Wallace v Kam [2013] HCA 19

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

NSW Court of Appeal cases cited in discussion:

Cox v Fellows [2013] NSWCA 206

Two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, though he was not instructing the plaintiff at the time. Both were competent and experienced skiers, and neither saw the other until the moment before the collision. In proceedings brought by the plaintiff, seeking damages for a number of injuries sustained in the collision, the Court held that the collision was caused by the negligence of the ski instructor and that the plaintiff was not guilty of contributory negligence. A pleaded defence of voluntary assumption of risk by reference to a risk warning within the meaning of s 5M was unsuccessful, but the defence under s 5L was made out.

On s 5K: In determining whether skiing is a dangerous recreational activity as defined in s 5K, it is necessary to consider both the potential nature and degree of harm as well as the likelihood of harm materialising: [150]. Statistics relied on by the plaintiff to establish the low rate of injuries at Perisher may be relevant but do not conclusively resolve the question of whether the plaintiff was engaged in a dangerous recreational activity: [143]. For the purposes of answering that question it is not necessary to identify a particular risk of harm or indeed to consider the obviousness of potential harm: [151]. There can ultimately be no doubt, and it is a matter of common knowledge, that skiing is a dangerous recreational activity: [152]-[155]. Statistics relied upon by the plaintiff do not contradict that conclusion; those statistics only show the number of incidents recorded, and do not address the potential for harm to be catastrophic: [156]-[157].

Mr Cox piloted a light aircraft that collided with a Ferris wheel erected in the splay of the landing strip at the Old Bar Airstrip for the Old Bar Festival. A passenger in the Ferris wheel, Ms Arndell, sued the Mid-Coast Council (‘the Council’) and Mr Cox for negligence in relation to the collision. Mr Cox also sued the Council for negligence. The Old Bar Airstrip was operated by the Council through an Airstrip Committee, and organisers of the Old Bar Festival had to apply to the Council to use the land adjacent to the airstrip for the event. The operator of the Ferris wheel made a separate application to the Council for the operation of the Ferris wheel at the festival. The Council’s liability to each plaintiff was potentially limited by the application of Part 5 of the Civil Liability Act, and its liability to Mr Cox was potentially additionally limited by the application of s 5L of the Civil Liability Act. The Court gave judgment for Ms Arndell against the Council, apportioning liability for the incident to Mr Cox as to 35%, and gave judgment for the Council against Mr Cox.

On s 5K: In applying the definition of “recreational activity” in s 5K, the Court accepted that flying a plane may not have been a “sport” for the purposes of paragraph (a) of the definition, nor, despite the public nature of the airstrip, an activity engaged in at a place where people ordinarily engaged in sport or activity for enjoyment, relaxation or leisure for the purposes of paragraph (c). The fact that Mr Cox held a “recreational” pilot’s licence was relevant but not determinative. Mr Cox was not paid to fly the plane, nor was his passenger a paying passenger. Plainly the flight was an activity engaged in for Mr Cox’s enjoyment and leisure: [283]-[287], [292]-[298].

Mr Singh, a professional jockey, was injured when the respondent Mr Lynch rode his horse so as to push the horse alongside him into the path of Mr Singh’s horse (in breach of the rules of racing) causing Mr Singh’s horse to fall. The primary judge dismissed Mr Singh’s claim on the basis that Mr Singh’s injuries were the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Singh (namely professional horse-racing).

On s 5K: The effect of pars (a) and (c) of the s 5K definition of “recreational activity” is to expand the ordinary meaning of those words: [19]. Neither the language nor the structure of the provision provides a basis for excluding professionals involved in a sporting activity from the definition of “recreational activity”: [20]-[29].

The Appellant volunteered at a greyhound track managed by the Respondent. He was struck in the leg by the lure and seriously injured while operating a catching pen gate. The primary judge found this injury to be the realisation of an obvious risk of a dangerous recreational activity such that s 5L of the CLA provided a complete defence to the claim.

On s 5K: The activity of operating the catching pen gate did not fall within par (b) of the definition of a recreational activity. The purpose of the Appellant’s presence was to assist in the conduct of races, which was not something from which he derived or sought to derive “enjoyment or relaxation” or which he undertook for the purpose of “leisure”: [50]-[51]. However, s 5K extends the definition of recreational activity beyond activities undertaken for a recreational purpose and the activity in question clearly fell within par (c) of the definition. That paragraph should not be construed as limited to “any pursuit or activity of a recreational character”: [75], [80], [97], [99]. There is no reason to doubt the factual conclusion that the activity was a dangerous one, involving a significant risk of physical harm, as the lure travelled at more than 70 kilometres per hour: [105], [110].

The appellant suffered serious injuries when he fell from a horse whilst riding as a professional jockey. He claimed that the injuries were caused by the negligence of the respondent, another professional jockey, who had ridden in such a manner as to cause interference with the appellant and his horse.

Horseracing is a sport that engages the first limb of the definition of “recreational activity” in s 5K. The limbs in s 5K are disjunctive. The words “any sport” preclude a distinction between sports engaged in for recreational and professional purposes: [190]; [210].

The Court declined to follow Dodge v Snell [2011] TASSC 19, where it was held that professional horseracing was not a “recreational activity”, notwithstanding that the Tasmanian statutory definition included “any sport”: [205]-[209].

High Court cases cited in discussion:

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 321

NSW Court of Appeal cases cited in discussion:

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

Belna Pty Ltd v Irwin [2009] NSWCA 46

The appellant suffered injuries when she landed awkwardly after jumping from a 10 metre diving platform. One issue on appeal was whether the appellant’s claim was for harm suffered as a result of the materialisation of an obvious risk of a “dangerous recreational activity” under s 5K.

In determining whether there is a “significant risk of harm” for the purposes of determining that a recreational activity is dangerous pursuant to the definition in s 5K, an objective assessment of the riskiness of the activity, taking into account the probability of physical harm coming to pass and the seriousness of the harm which would or might then result, is required.

The activity of jumping into water from a height of 10m carried with it a probability of harm that was real and present and the consequences of which carried with it serious risk of injury. This made the activity “dangerous” for the purposes of s 5K. [42]-[43]

NSW Court of Appeal cases cited in discussion:

Streller v Albury City Council [2013] NSWCA 348

The appellant was injured while riding a quad bike at the respondent’s recreational facility. One issue on appeal was whether the appellant’s injury resulted from the materialisation of an obvious risk of a dangerous recreational activity for the purposes of s 5K.

Section 5K defines a “dangerous recreational activity” as “a recreational activity that involves a significant risk of physical harm”. Factors such as time, place, competence, age, sobriety, equipment and even the weather may make a dangerous recreational activity which would not otherwise involve a risk of harm. It is the totality of the particular circumstances which surround the recreational activity that will determine whether a recreational activity is dangerous. [34]-[35]

NSW Court of Appeal cases cited in discussion:

Fallas v Mourlas [2006] NSWCA 32

The appellant was injured when his light aircraft made an emergency landing during a flying lesson. The primary judge classified the activity as a “dangerous recreational activity” pursuant to s 5K. The appellant appealed against that finding.

The definition of “dangerous recreational activity” must be read as a whole and determined objectively. Regard must be had both as to the nature and the degree of harm that might be suffered, on the one hand, and the likelihood of the risk materializing, on the other. The expression constitutes one concept with the risk and harm mutually informing each other. Significant risk means a risk that is more than trivial and does not import an undemanding test of foreseeability. It does not mean a risk that is likely to occur but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. [116]-[118]

NSW Court of Appeal cases cited in discussion:

Falvo v Australian Oztag Sports Association [2006] NSWCA 17

Fallas v Mourlas [2006] NSWCA 32

The respondent was hit and seriously injured during a motorcycle race training circuit. At first instance, the respondent brought a claim for breach of warranty and, in the alternative, a claim in negligence. The primary judge awarded damages on the basis of the claim in contract. On appeal, one issue for determination was the definition of “recreational activity” under s 5K.

A “recreational activity” under s 5K involves four considerations. First, the expression “recreational activity” is broadly defined in inclusive terms in the Act. Second, the emphasis is on engaging in the relevant pursuit or activity for the purposes of enjoyment, relaxation or leisure. Third, the goal of the activity is relevant in determining whether the activity is or is not a recreational activity. Finally, regard must be had to the particular activities engaged in by the plaintiff at the relevant time.

The respondent was found to have engaged in a recreational activity for the purposes of s 5K. [99]-[105]

NSW Court of Appeal cases cited in discussion:

Belna Pty Ltd v Irwin [2009] NSWCA 46

Mr Cox was injured when the light aircraft that he was piloting collided with a Ferris wheel during an attempted landing at the Old Bar Aircraft Landing Area (‘ALA’), an unlicensed aerodrome not subject to any regulatory oversight. The Ferris wheel had been erected by the Mid-Coast Council two days earlier and encroached on the splay of the grass airstrip (the area through which aircraft may travel when taking off or landing). The Council was found to have been negligent in a claim by a passenger on the Ferris wheel, but the primary judge held that Mr Cox’s claim was precluded by s 5L of the Civil Liability Act as the harm suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity. Mr Cox appealed and the Court of Appeal dismissed the appeal.

On s 5L: The relevant risk is to be characterised with a degree of generality, but with sufficient precision to capture the harm in fact resulting from its materialisation on the particular facts of the case, requiring a combination of foresight and hindsight: [36]. A degree of generality is necessary in order to preserve the intent of the provision in allocating the burden of harm: [43].

Any structure in the splay of an ALA creates a risk of collision and serious injury, and it is sufficiently commonplace for structures to appear in the splay of an ALA that pilots are advised to conduct detailed safety checks prior to attempting a landing. In those circumstances, the risk of harm was appropriately characterised as the risk of Mr Cox’s plane colliding with a hazard or built structure in the splay, without needing to further specify that the structure in question was a Ferris wheel: [44].

There is no requirement that the risk identified for the purposes of s 5L be characterised in the same terms as that identified for the purposes of s 5B; the former is to be characterised from the perspective of the plaintiff, the latter from the perspective of the defendant: [48].

Mr Singh, a professional jockey, had been injured when the respondent Mr Lynch rode his horse so as to push the horse alongside him into the path of Mr Singh’s horse (in breach of the rules of racing) causing Mr Singh’s horse to fall. The primary judge dismissed Mr Singh’s claim on the basis that Mr Singh’s injuries were the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Singh (namely professional horse-racing).

On s 5L: Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 sets out the principles applicable to the application of the s 5L defence: [49], [136], [150], [195]. The primary judge characterised the risk for the purposes of s 5K as that of “the plaintiff’s mount falling, bringing him to the ground and causing injury”. The appropriate characterisation of the relevant risk was as the risk of a fall as a result of another jockey’s careless riding, constituted by deliberate contact with another horse, and contrary to the rules of racing. However, a prospective assessment of the obviousness of that risk should not reflect fine distinctions differentiating different aspects of unsafe riding. Thus a finding that certain conduct was “reckless” or even “deliberate” does not affect the obviousness of that risk: [66]-[69], [134]-[140], [146]-[157].

The minority would have characterised the risk more precisely, as the risk of another rider “deliberately directing his horse to push sideways… against another horse so abruptly as to move that horse off her line of running and into the line of running of a third horse” ([212]), distinguishing between the obvious risk of careless riding and the non-obvious risk of a deliberate and grossly negligent act: [225]-[228].

Two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, though he was not instructing the plaintiff at the time. Both were competent and experienced skiers, and neither saw the other until the moment before the collision. In proceedings brought by the plaintiff, seeking damages for a number of injuries sustained in the collision, the Court held that the collision was caused by the negligence of the ski instructor and that the plaintiff was not guilty of contributory negligence. A pleaded defence of voluntary assumption of risk by reference to a risk warning within the meaning of s 5M was unsuccessful, but the defence under s 5L was made out.

On s 5L: The plaintiff submitted that the relevant risk should be characterised as the risk of an experienced and competent skier colliding with a ski instructor. The defendant submitted that the risk should be characterised in more general term, as the risk of a collision between two skiers: [164]-[169]. The relevant principles for the application of s 5L are set out in Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185, Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263, Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 and Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65: [171]-[175]. The question of obviousness must be addressed by reference to a reasonable person in the plaintiff’s position. It is thus relevant to consider the plaintiff’s personal circumstances, including skiing competence: [177]. However, it is inappropriate to focus on the personal characteristics of the other skier, by characterising the risk as that of a collision with a ski instructor, as this involves an exercise of pure hindsight: [182]-[189].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant. The primary judge found in favour of the defendant and she brought an appeal.

On s 5L: Without clear evidence as to the nature of the risk posed by the surface of the arena where the appellant’s horse fell, it was not possible to identify the cause of the fall, or the risk of harm against which the defendant should reasonably have taken precautions: [2]. The appellant did not identify the way in which it was alleged the surface of the arena had deteriorated. The nature of the deterioration was critical to the appellant’s formulation of the obvious risk: [69].

If it were a sufficient description of the general causal mechanism of the injury to describe the risk as “the appellant’s horse falling in the course of the campdrafting competition”, the risk was obvious. Even if the risk were correctly framed as being “the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena”, the injury suffered by the appellant was the manifestation of an obvious risk. The former was far too broad; it would include the risk arising from a misjudgment by the appellant. The latter is also inadequate because, although it refers to the state of the arena, it fails to identify the nature of the deterioration which led to the risk of a fall. In either case, the risk was obvious to a reasonable rider competing in these kinds of events, in which the appellant had many years of experience: [77]-[78]. It is not correct that if the risk is proven to be a rare one, or not within the scope of what a participant was entitled to have “expected”, it is therefore not an obvious risk: [80].

The plaintiff was seriously injured when her horse fell while warming up before competition at the Wagga Wagga Show. The horse was startled by a very loud noise made by children playing with a metal sign on a nearby fence in the warm up area. The plaintiff brought a claim in negligence and pursuant to a statutory guarantee imposed by the Australian Consumer Law. The plaintiff alleged that there was a failure on the part of the Show Society to have supervisors to control the children in and around the warm-up area. Judgment was entered against the plaintiff.

On s 5L: The specification of the obvious risk must be sufficiently precise so as to capture the harm which resulted from its materialisation on the facts: [71]. The words “as a result of” require a causal connection between the harm and the risk which materialises. Determining the appropriate level of particularity in formulating the risk requires hindsight: [72]-[73]. It was appropriate to characterise the harm as the materialisation of the obvious risk of her horse being spooked by some stimulus, and it was not necessary to provide the additional particularity that the noise made by children spooked the horse: [78]-[79]. The warm-up should not be a separate activity from the competition: [82], but even if it was separated, the warm up was still dangerous: [87].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5L: The requirements to establish the defence were identified as: that the plaintiff was engaged in a recreational activity; that the recreational activity was a dangerous one; that there was a risk of that activity which was an obvious one; and the harm suffered by the plaintiff was the result of the materialisation of that obvious risk: [108], [123]. The Court held that each of the matters was established in relation to a recreational campdrafting competition: [124].

The appellant suffered serious injuries when he fell from a horse whilst riding as a professional jockey. He claimed that the injuries were caused by the negligence of the respondent, another professional jockey, who had ridden in such a manner as to cause interference with the appellant and his horse.

Section 5L is a complete answer to liability which is governed by the Civil Liability Act, Pt 1A. Even if a plaintiff establishes duty, breach, and causation, if s 5L applies, the defendant will not be liable. The onus of establishing the defence lies with the defendant. There is much to be said for the view that the defence should be dealt with at the outset: [185].

It was common ground that the risk that a jockey might fall during a race and suffer injury was an “obvious risk”, and that horse racing involved a significant risk of physical harm: [183]. Professional horseracing is a sport that engages the first limb of the definition of “recreational activity” in s 5K, and thus falls within the operation of s 5L.

NSW Court of Appeal cases cited in discussion:

Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [54]-[57]

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128

Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51

A 9 year old boy suffered a brain injury after he rode his bike down a grassed slope into a concrete drainage channel. The primary judge found that the activity was not a dangerous recreational activity for the purposes of s 5L. On appeal, the appellant contended that the primary judge erred making that finding.

The materialisation of an “obvious risk” depends will depend upon the risk being an obvious risk to the reasonable person. The reasonable person will be defined as the reasonable person within the class of persons to which the “obvious risk” applies.

In the present case, riding an unfamiliar bike down a grass slope could not be characterized objectively as a dangerous recreational activity for two reasons. First, the standard of reasonableness to be expected was that of the child. It was found that the presence of the channel was not obvious and would not have been obvious to the respondent until he was at least half way down the slope. Second, the risk which materialized was not a normal incident of the dangerous recreational activity. [89]-[91]

In 2011 a five-year-old child was injured by falling through the railing of the Coffs Harbour Jetty onto the hard sand below. There were large gaps between the railings, with no mesh infill or wiring. A sign at the entrance to the jetty warned that “USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL”. The jetty had been redeveloped by the State Government, with the Council’s involvement, before its opening as a public walkway in 1997. When it was handed over by the State Government to the Council in 2002, the State Government advised the Council that the railing complied with relevant Australian building standards at the time of its redevelopment. However, in the years preceding the accident in 2011 the council had been aware of a number of incidents involving children falling or nearly falling from the jetty but had taken no action.

On s 5M: to engage the duty-denying operation of s 5M a warning must be given in a manner reasonably likely to result in people being warned of the general nature of the particular risk before engaging in the activity. Read as a whole, the sign in this case was directed to the risk of diving from the jetty into waters of variable depth, and could not be relied upon to defeat the Council’s duty of care in relation to the risk that materialised, namely that of a child falling through the gaps between the railings: [111]-[120].

Two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, though he was not instructing the plaintiff at the time. Both were competent and experienced skiers, and neither saw the other until the moment before the collision. In proceedings brought by the plaintiff, seeking damages for a number of injuries sustained in the collision, the Court held that the collision was caused by the negligence of the ski instructor and that the plaintiff was not guilty of contributory negligence. A pleaded defence of voluntary assumption of risk by reference to a risk warning within the meaning of s 5M was unsuccessful, but the defence under s 5L was made out.

On s 5M: the risk warning provided to the plaintiff identified a significant risk of physical harm or personal injury which may result either from the plaintiff’s actions or the actions, omissions or negligence of others. The required analysis is objective, ignoring whether the plaintiff actually believed there were risks associated with the activity. A risk warning need not instruct a recipient as to how to avoid the risk and need not precisely delineate each obstacle or hazard that may be encountered. However, the warning provided in this case was too general and failed to identify any particular risks. It merely identified that there are risks associated with skiing and identified the possibility of other persons being negligence: [191]-[208].

The plaintiff was seriously injured when her horse fell while warming up before competition at the Wagga Wagga Show. The horse was startled by a very loud noise made by children playing with a metal sign on a nearby fence in the warm up area. The plaintiff brought a claim in negligence and pursuant to a statutory guarantee imposed by the Australian Consumer Law. The plaintiff alleged that there was a failure on the part of the Show Society to have supervisors to control the children in and around the warm-up area. Judgment was entered against the plaintiff.

On s 5M: Where a risk warning is effective, no duty of care is owed: [125]. Where it is ineffective, warning of a risk is not a reasonable precaution against the risk, in circumstances where the risk warning is directed to extracting from participants an indemnity rather than to informing them of danger: [126]-[127].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant.

On s 5M: A risk warning for recreational activities can be given full force and effect so that there is no duty of care where a risk warning such as that set out in the waiver form has been given. A warning of risk was provided in the liability waiver agreement signed by the plaintiff. The terms of the waiver were clear and required the signatory to acknowledge campdraft is a recreational activity, that there are risks, that there is a risk of personal injury or death and that by signing the waiver the plaintiff understands they are waiving their rights to sue “whether caused by the negligence of the provider, its employees or agents, however caused or otherwise”: [160]-[162].

A 12 year old elite swimmer suffered tetraplegia after slipping whilst diving in the shallow end of a pool.

Section 5M, dealing with “risk warnings”, also speaks in terms to the question of generality or particularity of the risk. It is not necessary to give a precise delineation of each separate obstacle or hazard which may be encountered.

Section 5M is directed principally to signage and written disclosures, and ultimately to the end that the warning is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. That end would not be served by a provision which required a possibly lengthy list of specific warnings of individual risks, all of which were incidents of the recreational activity. [115]

NSW Court of Appeal cases cited in discussion:

Sharp v Parramatta City Council [2015] NSWCA 260

The appellant suffered injuries when she landed awkwardly after jumping from a 10 metre diving platform. At first instance, the appellant’s claim was dismissed because the risk that materialized had been the subject of a risk warning within the terms of s 5M.

A s 5M risk warning must warn of the general nature of the particular risk but does not necessitate the precise delineation of each separate obstacle or hazard which may be encountered.

Section 5M does not direct attention to whether the relevant person received or understood the warning, or was capable of doing so. Instead, s 5M considers whether the warning, by the manner in which it was given, was reasonably likely to result in “people” being warned. The “people” referred to are not all people but people in the same position as the relevant person. Such people are “warned” if they were reasonably likely to have received and understood the warning said to have been given.

In the present case, the sign warned that there was a risk of injury in undertaking the activity of diving. There was no error shown in the conclusion of the primary judge that the sign was placed in a manner reasonably likely to result in the appellant being warned of the risk. [30]-[33]

NSW Court of Appeal cases cited in discussion:

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128

The appellant was injured while riding a quad bike at the respondent’s recreational facility. On appeal, the respondent sought to rely on s 5M.

Unlike s 5L, s 5M does not require that the activity be “dangerous”. It is sufficient that the activity is a “recreational activity.” However, similarly to s 5L, the protections of s 5M require that the harm suffered is harm that is related to a risk of that particular recreational activity. For the section to apply, the risk must be inherent in or incidental to the activity.

In the present case, the risk that materialised was not inherent in, or incidental to, the relevant activity. [49]-[50]

The respondent was hit and seriously injured during a motorcycle race training circuit. At first instance, the respondent brought a claim for breach of warranty and, in the alternative, a claim in negligence. The primary judge awarded damages on the basis of the claim in contract. One issue on appeal was whether instructions given to riders constituted a “risk warning” in respect of a recreational activity under s 5M.

The language of s 5M “does not owe a duty of care” is expressly directed to negating any duty, rather than limiting or excluding liability for a breach of duty. It negates a duty of care and reflects the context of its subject matter, namely an anterior risk warning having been given to the plaintiff to take care in respect of a risk of the recreational activity. Such a risk warning has the effect of negating any duty of care owed to the person in the recreational activity. It does not limit or purport to limit or preclude liability for breach of a term of a contract providing for the exercise of due care and skill.

Section s 74(2A) of the Trade Practices Act 1974 does not operate to pick up and apply s 5M of the Civil Liability Act. [87]-[88] [95]-[96]

A 10 year old girl fell over a tree root and fractured her arm whilst playing outdoor ‘laser tag’. The primary judge held that there had been no “risk warning” because the warning which had been given to the children prior to the game did not warn of specific obstacles, such as tree roots. On appeal, the appellant argued that the trial judge erred in making that finding.

A “risk warning” is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk. Further, adequate warning can be given by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard.

In the present case, s 5M provided a straightforward path for disposing of the appeal. The suggestion that one specific hazard should have been identified is a function of hindsight. Furthermore, the plaintiff was not an “incapable person” for the purposes of s 5M. [25]-[28]

The appellant was injured while riding a quad bike at the respondent’s recreational facility. One issue that fell to be determined on appeal was whether a term of the contract between the respondents and the appellant for the provision of recreational services purported to exclude the respondents’ liability for negligence and whether s 5N protected that term’s efficacy.

The heading to s 5N refers to “contractual duty of care” but there is nothing in the terms of s 5N itself to limit its operation to contractual duties of care. The effect of s 5A is that Part 1A of the Act is applicable to claims in both tort and contract and an appellant can choose to sue in contract, or tort or both. The heading of s 5N does not limit its operation.

In the immediate case, the respondents did not, as a matter of contract, exclude their liability. [51]-[54]

Mr Paltos was a solicitor in partnership with Peter Milevski in a practice styled “Paltos Milevski Family Lawyers”. In 2015, Mr Paltos suffered two strokes and was hospitalised and suffered disablement. The Court ordered that the Partnership be dissolved following this event. Mr Paltos retained Bartier Perry Pty Ltd to provide advice in relation to the Partnership.

Mr Paltos brought proceedings against Bartier Perry for professional negligence, alleging that the defendant had not applied due care and responsibility in advising Mr Paltos as to his rights under the partnership agreement and otherwise, following his stroke.

On s 5O: The burden of proof for successfully raising the defence of s 50 is on the party relying upon it. There was no evidence in the proceedings in relation to whether a peer professional would advise on the right to claim for total and permanent disability, if there were such a right, or whether such advice was required under the terms of the Retainer. As there was no evidence, the Judge inferred that any such evidence would not have assisted that party’s case: [34], [404].

Mr Johnson brought proceedings against Mr Firth and Firths The Compensation Lawyers (together, ‘the Respondents’) alleging negligence in relation to the settlement of his motor vehicle accident insurance claim. His claim, that the Respondents settled his claim prematurely and at an undervalue, was rejected in the District Court on the basis that the Respondents had acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Mr Johnson appealed and the Court of appeal dismissed the appeal.

On s 5O: It was not conclusive in favour of the Respondents that Mr Johnson failed to plead or even suggest that the evidence relied on to establish peer professional opinion was irrational. The defence under s 5O is not sustained merely by having a professional witness endorse a defendant’s conduct as “widely accepted by peer professional opinion as competent professional practice”. Irrationality of a professional practice, to which s 5O(2) is directed, should not be conflated with irrationality of the evidence adduced for the purposes of s 5O(1). An expert opinion may be rejected on many grounds other than irrationality, including that the assumptions underlying it are not established: [53]-[55].

The plaintiffs brought proceedings alleging that during the first plaintiff’s pregnancy with her first child, the defendant, an obstetrician and gynaecologist with a subspecialty in maternal foetal medicine, failed to detect foetal abnormalities on ultrasound scans performed by him. The plaintiffs claimed damages against the defendant on the basis of negligence and breach of contract in carrying out, reviewing and advising upon the morphology ultrasound examinations.

On s 5O: The defendant wished to call four expert witnesses to establish the pre-conditions necessary for the operation of s 5O. The judge believed that this would cause unnecessary duplication with the potential for increased expense and time, even when evidence is given concurrently: [50]. The judge directed that the defendant be limited to calling evidence from no more than two of the relevant experts retained by the defendant. Additionally, the judge ordered that the joint experts conference occur in two parts: part 1 addressing questions related only to radiology; and part 2 addressing all of the other proposed questions concerning the breach of duty and s 5O issue: [62].

The respondent presented to hospital with an open fracture to his left thumb. He was treated with two particular types of antibiotics, and underwent surgery. After being discharged, gangrene developed in his thumb, leading to its amputation. The primary judge held that the failure to administer another type of antibiotic was causative of the injury. He also rejected expert opinion that not administering the antibiotic was “competent professional practice”, on the basis that the body of opinion was irrational.

It was clear from examining the text, context and purpose of s 5O that it would be “seriously pejorative and exceptional” to find a professional’s opinion to be irrational, and even more so if the opinion was widely held. Considering a body of opinion to be “irrational” is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion: [96]. To the extent that the judge’s approach amounted merely to preferring the views of one expert over another, it was inconsistent with ss 5O(3) and (4): [97].

Despite the dispute between various experts, the appellant had established there was a practice, under s 5O(1), to administer the antibiotics which were in fact administered, and no more, unless there was significant exposure to water. To the extent that one of the experts failed to articulate the reasoning process leading to his conclusions, it did not follow that his opinion was irrational. Rather, it would have been open for the plaintiff to object to its tender in accordance with principles of admissibility of evidence: [101]-[102].

The primary judge had erred in failing to determine the standard of care by reference to the evidence of what was regarded by peer professional opinion as competent professional practice. The effect of s 5O, in a case where its preconditions are made out, is to replace the standard of care against which breach is assessed. There is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case when the preconditions of s 5O have been made out: [123]-[124]; [128]-[129].

High Court cases cited in discussion:

Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17

Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 93

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

NSW Court of Appeal cases cited in discussion:

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44

Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335

White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18

The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. If the operation had been terminated earlier, he would not have suffered the injuries which led to the paraplegia. In resisting liability, the anaesthesiologist relied on, inter alia, s 5O of the Act.

Section 5O did not provide a defence. Relying on his reasoning in McKenna v Hunter & New England Local Health District (‘McKenna’) (overturned by the High Court on other grounds), Macfarlan JA held that the evidence did not point to the existence of an established ‘practice’ concerning how a competent medical practitioner would deal with such a situation for the purposes of the section: [221]-[223].

Basten JA considered that the phrase “competent professional practice” did not require evidence of ‘a practice’: [31]-[32]. While the reasoning of the Court in McKenna as to the scope and operation of s 5O should not be disregarded, there was no obligation on the Court, as a matter of precedent, to follow it: [40]. Nevertheless, based on how the defence was run at trial, the appellant could not rely on the section: [75].

Simpson JA concluded that she was obliged to follow McKenna, meaning that the appellant could not rely on s 5O. But for that constraint, she would have considered that “competent professional practice” was intended to denote the practice of a profession, not the specific practice or method of providing the professional services in question: [335]-[336].

High Court cases cited in discussion:

Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44

Garcia v National Australia Bank (1998) 194 CLR 395; [1998] HCA 48 at [56]

Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 410; [1981] HCA 4

NSW Court of Appeal cases cited in discussion:

McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust Torts Rep 82-158

Dobler v Haloverson (2007) 70 NSWLR 151; [2007] NSWCA 335

Holmes a Court v Papaconstuntinos [2011] NSWCA 59

In 2013 the respondent was delivering supplies to a building site. The builder’s supervisor directed him where to unload. In clearing the ground by removing an empty pallet, the first respondent fell into a stormwater retention pit, suffering severe injuries. The respondent sued the appellant in negligence. The appellant alleged contributory negligence on the part of the respondent and made several cross-claims seeking contribution.

On s 5R: In order to identify “the risk of that harm”, it is necessary to have regard to the harm in fact suffered. It is not sufficient to identify the risk as the possibility of personal injury. The court must have regard to the care taken by “a reasonable person in the position of” the claimant, knowing what the claimant knew or ought to have known at the time: [30]. No basis was provided to establish that a reasonable person knowing these circumstances would have taken one of the precautions posited by the appellant. The trial judge did not err in dismissing the defence of contributory negligence: [33].

Mr Williams was injured when he fell down the first of three individual steps along a downhill path to the public toilets. The primary judge accepted that he simply did not see the step as he did not expect to find one on the path towards a disabled toilet. His Honour found that negligence was established on the basis of an absence of cues that would indicate to an ordinary user of the path taking reasonable care for his or her own safety the location of the steps. Hi Honour then also concluded that contributory negligence had been established. The Council appealed against liability and Mr Williams cross-appealed against the finding of contributory negligence. The Court of Appeal dismissed the appeal and allowed the cross-appeal.

On s 5R: Obviously a finding of negligence on the part of a defendant does not of itself contradict a finding of contributory negligence on the part of a plaintiff: [8]. This is reflected in the scope of the duty owed to pedestrians, which is a duty to make a path safe not in all circumstances but for users taking reasonable care for their own safety: [9]. However, having identified that the step was not readily visible to a person exercising reasonable care for her own safety, it was necessary to identify a basis for the conclusion that Mr Williams in part failed to see the step because he was not exercising such reasonable care: [10]. In the present case, there was no evidence to that effect. Any assumption made by Mr Williams (to the effect that there were no steps along the path) was based on his perception of the pathway and was an assumption that, for the reasons relied on for the primary finding of liability, could have been reached by a person exercising reasonable care for his or her own safety: [12]-[14].

The appellant’s farm, “Myack”, was extensively damaged by fire in September 2012. The appellant claimed that the fire started on the adjoining property, “Doran”, resulting from a controlled burn conducted there in August 2012 at the request of the owners, the respondents. The respondents acknowledged that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished, and for notifying adjoining landowners of the burn, which they did not do. The RFS identified that a tree on the boundary of Doran was the source of the 5 September fire, reigniting after not having been fully extinguished after the controlled fire.

The owners were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the owners or the RFS. The appellant also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.

The appellant sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The respondents denied the claims and alleged contributory negligence on the appellant’s part.

On s 5R: Because the respondents’ duty to the appellant was non-delegable, s 5Q requires that the extent of the respondents’ liability for such negligence be determined as if they were vicariously liable for the RFS’ acts or omissions: [249]. However, s 5C does not make the owners vicariously liable for negligence on the part of the RFS: [252]. The non-delegable duty which the respondents owed the appellant required them to ensure that the RFS exercised reasonable care, in the sense that they would be liable if the RFS failed to do so, even if the RFS itself would have no liability in negligence to the appellant: [255].

Benjamin & Khoury Pty Ltd (‘B&K’) was an incorporated legal practice, engaged to act for two companies controlled by Mr Gabriel Rahme in proceedings in the Supreme Court. Those companies went into administration. Mrs Dana Rahme, Gabriel’s wife, entered into costs agreements with B&K, assuming responsibility for B&K’s past and future costs in relation to the proceedings, and giving security to support that commitment. B&K referred Mrs Rahme to a solicitor for independent advice, but that solicitor made it clear to her and B&K that he was not able to advise Mrs Rahme about the prospects of success in proceedings in the Supreme Court. Mrs Rahme then commenced separate proceedings in the Common Law Division, seeking, inter alia, declarations that her agreements with B&K were unenforceable, and reimbursement of the money she had paid to B&K in respect of legal costs. The primary judge rejected those claims and gave judgment for B&K. The key issues on appeal were: (i) whether B&K owed Mrs Rahme fiduciary duties at relevant times; (ii) if so, whether B&K breached those duties; (iii) whether the principal of B&K with carriage of the primary proceedings owed Mrs Rahme fiduciary duties; and (iv) whether the defences of contributory negligence and proportionate liability were available to B&K. The Court of Appeal allowed the appeal, holding that: (i) B&K owed Mrs Rahme fiduciary duties at relevant times; (ii) B&K breached those duties; (iii) the principal did not personally owe Mrs Rhame fiduciary duties; and (iv) neither defence was available as a defence to a claim of breach of fiduciary duties.

On s 5R: By operation of s 5A, part 1A of the Act is only applicable to claims for damages ‘for harm from resulting from negligence’. Negligence is not an element of a claim for breach of fiduciary duties. Therefore, a defence of contributory negligence is not available as an answer to a claim for breach of fiduciary duties: [124]-[131].

Ms Ayre was travelling north-west on Lake Road, Port Macquarie. She sought to make a right-hand turn across two lanes of traffic into a driveway. Mr Smith was travelling in the opposite direction in a car, and behind him, Mr Swan was travelling in the same direction on a motorcycle. Ms Ayre’s view of Mr Swan was entirely obscured by Mr Smith’s car. Ms Ayre commenced her turn without coming to a complete stop. As she was turning, Mr Swan increased his speed beyond the speed limit, passing Mr Smith on his inside. Mr Swan hit the back passenger side of Ms Ayre’s car, and suffered injuries to his left leg and knee. Mr Swan commenced negligence proceedings in the District Court against Ms Ayre. The trial judge found that Ms Ayre was liable for Mr Swan’s injuries, assessed his contributory negligence at 50%, and awarded him damages of $307,365.46. Ms Ayre appealed, challenging the finding of liability, the assessment of Mr Swan’s contributory negligence, and the quantum of damages awarded. By majority, the Court of Appeal allowed her appeal on contributory negligence only.

On s 5R: McCallum JA (with whom Macfarlan JA agreed) allowed the appeal on contributory negligence, holding that Mr Swan’s wholesale disregard for his own safety in riding at a speed of at least 100 kph in an area where the designated speed limit was 50 kph and the very significant contribution of that excess speed in causing the accident justified substantially reducing the liability of Ms Ayre. The primary judge’s determination that Mr Swan was 50% contributorily negligent was set aside, and substituted with a determination of 80% contributory negligence: [72]-[73].

High Court decision cited in discussion:

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

NSWCA decision cited in discussion:

Gordon v Truong [2014] NSWCA 97; (2016) 66 MVR 241

Mr Williams worked as a picker-packer in a product distribution centre operated by Metcash Trading Ltd. He brought proceedings against Metcash Trading Ltd in the District Court, seeking damages in respect of personal injury said to have been sustained while working at the centre. The primary judge found that Mr Williams suffered an injury while lifting two boxes of dog food from under a rack that was 1.4 m high. He held that Metcash breached a duty it owed to Mr Williams by requiring that cartons of dog food be picked from a rack measuring only 1.4 m high. But he gave judgment for Metcash on the basis that this breach did not cause Mr Williams’ injury; rather, the injury was caused by the fact that Mr Williams lifted two boxes, contrary to safe lifting practices. In the event that he was wrong on causation, the primary judge went on to consider quantification of damages and contributory negligence, finding that any award of damages would be reduced by 20% by reason of Mr Wiliams’ contributory negligence. Mr Williams appealed, challenging the primary judge’s finding that the negligence found did not cause his harm, and challenging the findings on contributory negligence. The appeal was allowed on causation.

On s 5R: for the purposes of contributory negligence, in determining the standard of care required, a plaintiff should not be treated differently from a defendant merely because the plaintiff is the person who suffered harm: [73].

NSW Court of Appeal cases cited in discussion:

Council of the City of Greater Taree v Wells [2010] NSWCA 147

The respondent was injured when he slipped on water on the floor of the below ground carpark of premises occupied by the appellant. The primary judge found that the respondent had not been contributorily negligent.

It was necessary for the appellant to establish that the respondent’s inattention causally contributed to the damage suffered by him. This flows from the abrogation of the defence of contributory negligence at law and the apportionment effected by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9. Section 5R is also relevant, and requires questions of culpability to be assessed by reference to ss 5B and 5C.

Divergent views have been expressed as to whether s 5D is applicable to the determination of causal contribution for contributory negligence, or whether the “common sense” approach in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 applies. It was not necessary to resolve the point in the present case: [31].

The primary judge erred in finding that the respondent was not contributorily negligent. The respondent’s inattention and having only a single hand on the trolley while using his phone made it more likely that he could not save himself from his slip, and would instead fall to the ground. An apportionment where the respondent bore one quarter of responsibility was a just and equitable apportionment: [33]-[35].

High Court cases cited in discussion:

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; [1964] HCA 16

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

NSW Court of Appeal cases cited in discussion:

Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380

Verryt v Schoupp [2015] NSWCA 128; 70 MVR 484

Nominal Defendant v Rooskov [2012] NSWCA 43; 60 MVR 350

The appellant was the trustee of a self-managed superannuation fund, established for the benefit of two individuals, who were directors of the trustee company. The respondent was an accountant who had audited the accounts of the fund. The primary judge found that the respondent had been negligent, but that his conduct had not caused any loss. If he were wrong, the primary judge indicated his findings as to contributory negligence and proportionate liability. On appeal, the Court concluded that causation had been made out.

In considering contributory negligence, s 5R(2)(a) requires regard to be had to how a reasonable person “in the position of” the claimant would have acted. In making an apportionment based on a plaintiff’s contributory negligence, the Court must consider “the degree of departure from the standard of care of the reasonable man” and “the relative importance of the acts of the parties in causing the damage”: [80]-[84]; [89].

The appellant, through its director, departed from the standard of care that a reasonable person would have applied to protect their own interests, but to a very limited degree. Even a person with the director’s lack of financial sophistication should reasonably have considered the prudence of supplying significant amounts of money to Mr L’s company.  However, the respondent’s departure from the standards of a reasonable person in his position, that is, of an experienced accountant and auditor, was significant. The respondent’s negligence should be regarded as being of significantly greater importance in causing the damage than the negligence of the appellant: [89]-[90]. Responsibility for the loss should be apportioned 10% to the appellant and 90% to the respondent: [91].

High Court cases cited in discussion:

Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6

Rogers v Whitaker (1992) 175 CLR 479 at 487; [1992] HCA 58

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

NSW Court of Appeal cases cited in discussion:

Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139

T & X Company Pty Ltd v Chivas [2014] NSWCA 235 at [48]-[56]; (2014) 67 MVR 297

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

Daniels v Anderson (1995) 37 NSWLR 438

Mr Donald was employed by the second respondent, which hired out his labour to the appellant. He worked as a labourer, primarily, although not solely as a jackhammer operator, removing old railway sleepers and replacing them with new ones. The primary judge held that Mr Donald sustained a back injury due to the negligence of the appellant. He also entered judgment against the second respondent in accordance with the Workers Compensation Act 1987 (NSW). The appellant appealed and the second respondent cross-appealed with respect to the findings on liability.

There is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to determining contributory negligence, as the question of breach is directed to whether a person has breached a duty to another person, while contributory negligence requires a determination whether a person has taken reasonable care for their own safety. However, once this difference is recognised, consideration must be given to the statutory prescriptions in s 5B: [201]-[203].

In finding that Mr Donald was not contributorily negligent, the Court observed that the appellant’s essential position was that Mr Donald should have taken breaks himself and asked for help. However, the manner in which Rail Corp permitted an ad hoc system of work to operate and the fact that it permitted Mr Donald to do all the jackhammering work meant that it was unlikely that a worker in his position would ask for help. A quasi-employer in the position of the appellant could not expect an unskilled labourer such as Mr Donald to regulate his own work practices so that they were safe for him: [204].

High Court cases cited in discussion:

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34

NSW Court of Appeal cases cited in discussion:

Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72

Jurox Pty Ltd v Fullick [2016] NSWCA 180

The respondent was injured when the car in which she was a passenger, driven by the appellant, struck a tree. She was thrown from the back seat and suffered severe spinal injuries.

The issue for determination by the High Court was whether, in light of specific provisions of the Civil Liability Act 1936 (SA), the respondent was contributorily negligent in choosing to travel in the car despite knowing that the appellant was intoxicated and in failing to put on a seat belt. In resolving these questions, the High Court considered the operation of s 44(1) which is in similar terms to s 5R of the Civil Liability Act 2002 (NSW).

Section 44(1) imposes the same standard of care on both plaintiffs and defendants. It disqualifies any suggestion that the reasonable care and skill expected of a plaintiff to protect their own interests is different from that expected of a defendant to protect the interests of others.

The appellant was injured when the front wheel of her bicycle became stuck in a gap between the wooden planks of a bridge. She sued the respondent council for negligence but liability was not established at trial because the risk was an “obvious risk” under s 5F. On appeal, the council submitted that if it had been negligent, the appellant was guilty of contributory negligence.

There was no error on the part of the primary judge in reaching the conclusion that the respondent council was not liable. However, had the appellant been successful in establishing liability, a finding of contributory negligence would have followed as a matter of course because the questions posed by s 5R(2) are essentially the same questions as those which arise in determining the issue of “obvious risk”, an issue which had already been determined adversely to the appellant. [188]-[191]

The 13 year old respondent, not wearing a helmet, hitched a ride up a hill by holding on the back of a car driven by the appellant at a slow speed whilst on a skateboard. After a few hundred metres the respondent fell and struck his head on the bitumen, being severely injured. The primary judge found that the respondent had been contributorily negligent.

The primary judge erred in proceeding on the basis that s 5R(1) required the appellant to satisfy each of the elements in s 5D(1) in order to prove causation for the purposes of its contributory negligence defence. The “principles” referred to in s 5R(1) as applicable in determining negligence are those in s 5B and not those in s 5D(1) which are directed to a different question, namely, whether for the purpose of attributing liability, negligence caused particular harm.

The appellant must bear by far the greater responsibility for the injuries sustained by the respondent. A sufficient allowance for the respondent’s lack of care for his own safety is reflected in a reduction of his damages by 10%. [25]-[27]

NSW Court of Appeal cases cited in discussion:

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

The appellant police officer, whilst conducting an urgent security sweep, collided with a boom gate that had been lowered across a road in error by a motorway controller in the employ of the respondent. The appellant appealed against the primary judge’s finding of contributory negligence against him in the order of 15%.

Section 5R requires the court, in determining whether a person is contributorily negligent, to apply ss 5B and 5C. Consideration must be given to the statutory prescriptions in s 5B but s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d). Furthermore, the relevance of and weight to be given to each factor depends on the circumstances. Pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew.

Having regard to the urgency of the appellant’s task and the unexpected lowering of the boom, the finding of contributory negligence was overturned. [159]-[162], [173], [175]

The appellant slipped on a puddle of clear liquid on the floor of a shopping centre and sued the respondent as owner and occupier of the shopping centre. Liability was established at trial and the primary judge held that the respondent was not contributorily negligent, a finding against which the appellant appealed.

The primary judge erred in failing to find that the appellant was contributorily negligent. The relevant question was not whether the appellant’s response to the signs was reasonable, but whether her response was that of a reasonable person in her position.

The appellant failed to take precautions which a reasonable person in her position would have taken and therefore failed to take reasonable care for her own safety. Contributory negligence was assessed at 20%. [86]-[91]

A taxi owned by the appellant fatally struck a pedestrian crossing the street against a red pedestrian light. The respondent, the mother of the pedestrian, sued for nervous shock. Liability was made out at trial and contributory negligence was assessed at 40%.

There are difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent. It is also not clear whether the standard of care identified in s 5R(2) in relation to the injured person is that which applies to the person causing the injury.

The Act raises a doubt as to whether emphasis should be placed, as it has in the past, on the capacity for a motor vehicle to cause far greater damage when compared with the capacity of the plaintiff to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian. The conduct of the driver should not be judged against a higher standard than that of the pedestrian.

The fact that the deceased crossed the road against a red pedestrian light required a far higher level of contributory negligence, which was assessed at 75%. [6], [41]-[57]

Note: Beazley P dissented. The greater harm that may be done by a motor vehicle to pedestrians remains a relevant observation in determining contributory negligence. The likely seriousness of the driver’s conduct was such that he should bear a higher proportion of the blame and the primary judge’s apportionment should not be disturbed. [11], [16]-[17]

High Court cases cited in discussion:

Joslyn v Berryman [2003] HCA 34; 214 CLR 552

The respondent was hit by a forklift when exiting the appellant’s premises. The respondent was aware that forklifts operated in the area. The appellant submitted that the respondent was contributorily negligent.

Section 5R(2) deals with the “standard of care”, which may or may not affect the “just and equitable” test in s 9 of the Law Reform (Miscellaneous Provisions) Act 1965. Section 5R was intended to apply to the assessment of contributory negligence the general principles set out in s 5B (and arguably s 5C) in determining the negligence of the defendant. Like s 5B(1)(c), s 5R(2) adopts the qualified objective test of “a reasonable person in the position of [the plaintiff]”.

No distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted.

If both driver and passenger were equally careless, liability should be shared equally. Given that the respondent should have seen the forklift and knew that the forklift operated without looking behind him, the respondent was 30% contributorily negligent for the accident. [79]-[100], [118]

Note: McColl JA dissented. Her Honour found that s 5R says nothing about how the relative culpability of the plaintiff and defendant are to be apportioned. [47]-[48], [53]-[59]

High Court cases cited in discussion:

The respondent suffered serious injuries when he fell eight metres whilst dismantling scaffolding. The appellant was responsible for the supply, erection and dismantling of the scaffolding. The respondent brought proceedings for negligence against the appellant and his employer. The primary judge held that both the appellant and his employer were negligent, and that there was no contributory negligence on the part of the respondent. The appellant challenged those findings.

The test for contributory negligence under s 5R and the common law is an objective one notwithstanding that it differs from the test for negligence in that it focuses on conduct of the actor which exposes them to the risk of injury without necessarily exposing others to such a risk. Whether the appellant was guilty of contributory negligence was to be assessed against the risk of injury to which he was exposed if he did not act as a reasonable and prudent worker in his position would have acted. The appellant’s actions were incompatible with the conduct of a reasonably careful scaffolder and contributory negligence was assessed at 20%. [77]-[86]

High Court cases cited in discussion:

Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563

The respondent was struck by a car, driven by the appellant, whilst crossing a street on foot. The appellant conceded liability at trial and the only issues for determination were contributory negligence and damages. The trial judge found that there was no contributory negligence on the part of the respondent. On appeal, the appellant alleged that the respondent was contributorily negligent in failing to keep a proper lookout.

The principles applicable in determining whether a person has been negligent under s 5R include those set out in s 5B. The negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is to be assessed against a risk of harm to themselves. The harm which a motor vehicle is likely to cause to a pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.

As the options to a pedestrian in the circumstances may be more limited than that of a driver, and the culpability of the driver greater, the appropriate allowance of contributory negligence was 35%. [14]-[22]

Note:

Whilst Macfarlan JA agreed with Basten JA that contributory negligence should be assessed at 35%, his Honour took into account as relevant to the apportionment exercise the fact that the appellant was in charge of a fast moving vehicle whereas the consequence of carelessness on the part of the plaintiff was more likely to be harm to himself.

Simpson JA dissented, finding no error on the part of the primary judge in rejecting the appellant’s contention that the respondent was contributorily negligent.

Each of the three respondents was injured when the motor vehicle in which they were travelling left the road and collided with a power pole. The trial judge assessed contributory negligence at 35-40% to reflect the respondents’ knowledge or constructive knowledge that the driver of the vehicle was so affected by alcohol as to impair his ability to drive and the fact that none of them was wearing a seat belt. On appeal, the appellant submitted that contributory negligence should have been assessed at 80%.

An effect of s 5R is to apply to the conduct of the person who suffers harm, principles relevant to determining negligence on the part of the person owing a duty of care. This includes the general principles set out in ss 5B and 5C.

An intermediate appellate court should be reluctant to interfere with a trial judge’s finding as to contributory negligence as reasonable minds may differ as to where within a particular range the appropriate result is to be found. In this case there was no reason demonstrated which took the conduct of the respective parties outside a range of 35%-40%. [31]-[32], [55]

High Court cases cited in discussion:

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492

A factory owned and operated by the respondents was destroyed in an explosion caused by liquefied petroleum gas as supplied by installations supplied and constructed by the appellants. The respondents brought a claim alleging breach of common law, statutory and contractual duties of care in respect of the construction, maintenance and inspection of the gas installation. The appellants alleged contributory negligence with respect to the respondent’s failure to isolate a critical storage tank whilst shut down.

The terms of s 5R(2)(b) CLA require that actual knowledge has a part to play in the assessment of contributory negligence. The correct legal question is whether a reasonable person in the position of the respondents, i.e. having the knowledge which the respondents had or ought to have had, was negligent.

The respondents did not have actual knowledge of the need to isolate the tank and no evidence supported the proposition that the respondents ought to have known of that need. Accordingly, the respondents were not contributorily negligent. [216]-[219]

NSW Court of Appeal cases cited in discussion:

Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208

The appellant was injured when a motor vehicle driven by the respondent ran over her foot. The appellant brought proceedings against the respondent for negligence and, in the alternative, on the basis that her injuries were the result of a “blameless motor accident” pursuant to the Motor Accidents Compensation Act 1999 (NSW). The primary judge found that it was a “blameless accident” and assessed contributory negligence at 100 per cent.

Section 138(1) of the Motor Accidents Compensation Act provides that the “common law and enacted law as to contributory negligence” apply to an award of damages in respect of a motor accident. This includes s 5S.

Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence. This overcomes the decision in Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65. Contributory negligence was assessed at 80%. [23], [29], [43]

High Court cases cited in discussion:

Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65

A taxi owned by the appellant fatally struck a pedestrian crossing the street against a red pedestrian light. The respondent, the mother of the pedestrian, sued for nervous shock. Liability was made out at trial and contributory negligence was assessed at 40%.

Section 5S may constitute a reform to the common law in providing that a court may determine a reduction of 100 per cent if it considers it “just and equitable to do so”. It is possible that s 5S may articulate what was in any event already available having regard to the terms of the legislation governing apportionment, in this case the Motor Accidents Compensation Act 1999 (NSW). [3] (per Beazley P in dissent on the question of contributory negligence)

The appellant’s husband was killed when a shop awning collapsed on him. His widow claimed damages under the Compensation to Relatives Act 1897. The trial judge found that an award of damages pursuant to ss 3 and 4 of the Compensation to Relatives Act would be limited by the operation of s 12(2) of the Act. An appeal to the Court of Appeal was dismissed.

Section 12(2) directs a court, when awarding damages relating to the death of or injury to a person, to disregard the amount by which the “claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is three times the amount of average weekly earnings”. Despite the repeal of the definition of “claimant” within the Act, nothing evidences an intention to change the meaning from its ordinary meaning as “the person who makes or is entitled to make a claim”. To read s 12 as applying the s 12(2) limitation to the deceased’s gross weekly earnings cannot be reconciled with the language that Parliament has enacted. The phrase “the claimant’s gross weekly earnings” cannot identify the gross weekly earnings of the deceased. [1], [9], [41]-[44]

In January 2014, when she was 16 years old, a tennis ball hit Ms Redding’s left eye. The ball had been hit by Mr White while he was playing an informal game of cricket in the Function Room at Manly Lifesaving Club. Ms Redding was not participating in the game – she was at the Club because she had been assisting with a barbeque. The accident caused Ms Redding to suffer serious injuries, resulting in a 97% loss of vision in her left eye.  Ms Redding brought negligence proceedings against the Club and Mr White. The claim against the Club settled. In the claim against Mr White, a judge of the District Court found in favour of Ms Redding, and awarded her $692,806.30 in damages.  Mr White appealed. On appeal, there were three issues. First, whether the primary judge erred in assessing the severity of Ms Redding’s non-economic loss as 55% of a most extreme case. Second, whether the primary judge erred in assessing Ms Redding’s loss of future earning capacity. And third, whether the primary judge erred in making an allowance of $25,000 for the possible cost to Ms Redding of contact lenses. The appeal was dismissed.

On s 13: In applying s 13(1), a court must determine what the plaintiff’s future earning capacity would likely have been but for the accident. Then, though s 13(1) does not explicitly say so, the court must determine what the plaintiff’s future earning capacity is likely to be in light of the injury that they have suffered: [33], [57], [79].

NSWCA decisions cited in discussion:

New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13

Mr Bosevski was injured whilst working at a site operated by the appellant. The primary judge awarded Mr Bosevski $2,615,605.93 in damages, plus interest. The appellant challenged the assessment of damages with respect to, inter alia, future attendant care, lawn mowing, gardening and handyman services, and future medical expenses.

Section 13 applies to damages for future economic loss both in respect of “future earning capacity” and “other events on which the award is to be based”. The latter category includes damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses. The primary judge did not approach the assessment of damages falling within this latter category in the manner required by the section: [139]; [141]; [159]; [165].

Section 13(2) requires an approach to the assessment of damages which is consistent with the approach in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. This extends to the assessment of damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses, consistent with principle and the weight of authority in the Court of Appeal. The correct approach is to calculate the degree of probability of a future event occurring but for the injury, and then to adjust the award of damages according to that calculation: [128]-[137].

The Court reassessed the impugned heads of damage: [153]-[155]; [160]-[162]; [167]-[169]. In reassessing the award of damages for future attendant care, the Court found that an award of damages for future attendant care on a commercial basis was warranted because the required services were readily available and likely to be availed of by Mr Bosevski: [145]-[152].

High Court cases cited in discussion:

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54

Sharman v Evans (1977-1978) 138 CLR 563; [1977] HCA 8

NSW Court of Appeal cases cited in discussion:

Amoud v Al Batat [2009] NSWCA 333

Marsland v Andjelic (1993) 31 NSWLR 162

Miller v Galderisi [2009] NSWCA 353

White v Benjamin [2015] NSWCA 75

Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95

Sampco Pty Ltd v Wurth [2015] NSWCA 117

Gordon v Truong [2014] NSWCA 97

Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

The plaintiffs commenced proceedings under the Compensation to Relatives Act 1897 (NSW) alleging that the defendant’s negligence had caused the death of their father. A significant element of the damages claimed represented the loss of services that the deceased would have provided for the plaintiffs but for his death. The proceedings were resolved by agreement, subject to the Court’s approval by reason of the fact that one of the plaintiffs was a person under legal incapacity. Uncertainty as to the application of s 15 of the Civil Liability Act to the claimed loss of services was factored into the settlement by discounting the claimed damages. The Court approved the settlement of the proceedings on the basis that loss of gratuitous services provided by the deceased would likely not be compensable.

Mr Bosevski was injured whilst working at a site operated by the appellant. The primary judge awarded Mr Bosevski $2,615,605.93 in damages, plus interest. The appellant challenged the assessment of damages with respect to a number of different heads of damage.

The plaintiff, by his tutor, applied for approval of the settlement of his claim against the Transport Accident Commission. The plaintiff, a 12 year old boy, sustained injuries when struck by the hydraulic lift mechanism of a truck being operated by his 7 year old brother. The settlement was approved. The plaintiff’s mother requested that the sum for gratuitous care be released to herself and her husband.

On s 15: The claim for gratuitous care is that of the plaintiff and the recovered damages are those of the plaintiff. No identifiable case or principle supports a proposition that the amount for gratuitous care is payable to the people who provided the gratuitous care: [26]-[27].

Charles Rene Abegglen had brought proceedings seeking damages for negligence against the Respondents in the Dust Diseases Tribunal. A large component of the damages awarded were for the loss of his ability to care for his long-term partner, Mrs Piatti, who suffered from Alzheimer’s and dementia. The trial judge considered damages for the loss of capacity to provide domestic services (calculated under s 15B of the CLA) to be limited to the level of services provided at the time liability for the disease arose, rather than at the time of judgment. The Appellant challenged this finding on behalf of Mr Abegglen’s estate

The respondent sued the appellants for damages arising from his exposure to asbestos in around 1967 and 1975-6. He was diagnosed with mesothelioma in 2016. In 1996, one of his children had suffered a catastrophic motor vehicle accident, which led to the respondent and his wife providing around-the-clock care. The respondent’s wife had also previously sustained an injury leading to two back operations and other health issues. A dispute arose as to the amount the respondent was entitled to for loss of his capacity to provide gratuitous domestic services to his wife and son.

The primary judge did not err by including ‘passive care’ in the award of damages for “gratuitous domestic services”. Passive care includes forms of “protective attention” such as constant supervision and availability to step in in case of emergency: [160]-[163], [67]-[70].

Even if gratuitous domestic services are provided jointly, the task remains one of identifying both the number of hours of the services provided by the respondent and the reasonable need of the dependants for those services to be provided by the respondent. Section 15B(2)(d) is not directed to the identity of the provider of services being either the wife or the potential workers’ compensation insurer. The availability of alternative care was not relevant to the question of the dependent’s need for the services previously rendered by the respondent: [83]-[84]; [92]; [147]-[148].

High Court cases cited in discussion:

Van Gervan v Fenton (1992) 175 CLR 327

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

NSW Court of Appeal cases cited in discussion:

State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149

Dionisatos (for the estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281

Amaca Pty Ltd v Phillips [2014] NSWCA 24

Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338

The applicant booked a holiday cruise tour in Europe for himself and his wife, supplied by the respondent. The tour was severely disrupted by adverse weather conditions. Representative proceedings were commenced in the Supreme Court. The primary judge held that Scenic had failed to comply with the consumer guarantees in the ACL and awarded the applicant damages for disappointment and distress. On appeal, the issue was whether s 275 of the ACL applied s 16 of the CLA, being the state law applicable to the contract, to proceedings in federal jurisdiction, precluding liability for personal injury arising from the failure to comply with a consumer guarantee for services. The applicant was granted special leave to appeal the Court of Appeal decision.

On s 16: Section 275 picks up and applies State laws such as s 16: [38]. In this case, this section did not apply to preclude the recovery of damages for disappointment and distress not consequential upon physical or psychiatric injury. The High Court did not rule on whether s 16 applies to loss suffered outside of NSW, as held in Scenic Tours Pty Ltd v Moore [2018] NSWCA 238.

Mr Wharekawa was employed as a labourer by Building Partners Pty Ltd (‘BP’). He was working on a residential site in Paddington. AEA Constructions Pty Ltd (‘AEA’) occupied a neighbouring site. An employee of AEA, working on the site occupied by AEA, fired a nail from a power tool. The nail pierced a wooden block and a wall, and travelled through to the site on which Mr Wharekawa was working, where it struck him in the head. Mr Wharekawa commenced personal injury proceedings against AEA on the basis of its vicarious liability for the negligent conduct of its worker. In separate proceedings, BP claimed an indemnity from AEA for such compensation as BP had paid to Mr Wharekawa. The primary judge gave judgment for Mr Wharekawa against AEA, awarding him damages a little under $1.5 million. The primary judge gave judgment for BP against AEA. AEA appealed from both sets of orders. With respect to Mr Wharekawa’s claim, AEA submitted that the primary judge had made an excessive award for non-economic loss and for future economic loss. With respect to BP’s claim, AEA submitted that the primary judge had erred in failing to find that BP was in breach of its duty of care to its employee, Mr Wharekawa. The appeals in both proceedings were dismissed.

On s 16: Basten JA considered that three matters of principle are in play when making an assessment of damages for non-economic loss under s 16. First, it is necessary to have in mind the injury or harm for which damages are assessed, referring to the definition of ‘non-economic loss’ in s 3. Second, because assessments under s 16 of a proportion of a most extreme case involve evaluative judgments involving questions of fact and degree, and matters of opinion, impression, speculation, and estimation, in the absence of demonstrable error of fact or law, an appellate court will not interfere with an assessment of a proportion which was reasonably open on the material before the trial judge. Third, the range of reasonable opinion is to be assessed by reference to the task being undertaken, and not by the financial consequences of a particular assessment: [8]-[11]. Gleeson JA and White JA agreed with Basten JA’s reasons on non-economic loss: [22], [112].

Early one Monday morning, Mr Thornbury slipped and fell into a hole in the backyard of residential premises he was renting. He claimed to have suffered neck and lower back injuries as a consequence of the fall. The hole was one of several that had been dug the week before for the purpose of resolving a drainage problem. When the hole was dug, Mr Thornbury was present, as was a local plumber and the owner of the premises, Mr Lloyd. Mr Thornbury commenced negligence proceedings in the District Court, seeking damages from the plumber. Mr Lloyd was also joined as a defendant. The plumber and Mr Lloyd filed cross-claims against one another. Three years after the trial, the primary judge delivered an oral judgment, finding in favour of Mr Thornbury against Mr Lloyd, though finding 40% contributory negligence on the part of Mr Thornbury. On the cross-claims, the primary judge gave judgment for the plumber against Mr Lloyd. It was agreed that an award of damages of $345,043.17 was to be made to Mr Thornbury. Mr Lloyd appealed against the whole of the decision. Mr Thornbury cross-appealed, primarily challenging the findings on contributory negligence. The plumber sought to uphold the finding of liability against Mr Lloyd. There were various issues on appeal. Two issues presently relevant were: (i) whether the primary judge erred in failing to determine under s 5B(2) of the CLA the precautions which a reasonable person in Mr Lloyd’s position would have taken against the identified risk of harm; and (ii) whether the primary judge misdirected himself as to the evidence concerning Mr Thornbury’s residual earning capacity and failed to provide sufficient reasons for his findings with respect to non-economic loss. The Court of Appeal allowed the appeal in part on damages, and dismissed it as to the other issues.

On s 16: the disagreement from White v Redding [2019] NSWCA 152 as to the standard and principles of appellate review to be applied to a determination under s 16 was noted, but in this case, whichever approach was taken, the primary judge’s assessment could not stand: [1], [173].

In January 2014, when she was 16 years old, a tennis ball hit Ms Redding’s left eye. The ball had been hit by Mr White while he was playing an informal game of cricket in the Function Room at Manly Lifesaving Club. Ms Redding was not participating in the game – she was at the Club because she had been assisting with a barbeque. The accident caused Ms Redding to suffer serious injuries, resulting in a 97% loss of vision in her left eye.  Ms Redding brought negligence proceedings against the Club and Mr White. The claim against the Club settled. In the claim against Mr White, a judge of the District Court found in favour of Ms Redding, and awarded her $692,806.30 in damages.  Mr White appealed. On appeal, there were three issues. First, whether the primary judge erred in assessing the severity of Ms Redding’s non-economic loss as 55% of a most extreme case. Second, whether the primary judge erred in assessing Ms Redding’s loss of future earning capacity. And third, whether the primary judge erred in making an allowance of $25,000 for the possible cost to Ms Redding of contact lenses. The appeal was dismissed.

s 16: Gleeson JA and White JA considered that the test for appellate review of an assessment of the severity of non-economic loss under s 16 is the ‘deferential’ standard from House v The King (1936) 55 CLR 499. Macfarlan JA considered that the test is the ‘correctness’ standard from Warren v Coombes (1979) 142 CLR 531: [19]-[26], [61]-[78], [80].

High Court decisions cited in discussion:

House v The King (1936) 55 CLR 499; [1936] HCA 40

Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65

Wilson v Peisley (1975) 7 ALR 571

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30

NSWCA decisions cited in discussion:

Costa v The Public Trustee of New South Wales [2008] NSWCA 223

Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370

Hall v State of New South Wales [2014] NSWCA 154; (2015) 71 MVR 1

McKenzie v Wood [2015] NSWCA 142

Hornsby Shire Council v Viscardi [2015] NSWCA 417

State of New South Wales v Naaman (No 2) [2018] NSWCA 328

The respondent commenced representative proceedings on behalf of himself and persons who had booked and paid for certain European river cruises with the appellant. The primary judge found that Mr Moore was entitled, inter alia, to damages for distress and disappointment caused by the appellant’s failure to comply with certain guarantees under the Australian Consumer Law.

The respondent should not have been awarded damages for distress and disappointment. This was because the Australian Consumer Law, s 275, picked up and applied s 16 as a surrogate federal law. The respondent could not satisfy the statutory threshold for damages for non-economic loss under ss 15-16: [364].

Section 16 applied notwithstanding that the contraventions in the respondent’s case had occurred outside Australia: [388].

High Court cases cited in discussion:

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16

NSW Court of Appeal cases cited in discussion:

Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137

The appellant was injured when helping to release a 5 year old boy who had become stuck in play equipment. The primary judge assessed non-economic loss under s 16 as 26% of a most extreme case on the basis that the appellant suffered a significant wrist injury, injury to his ribs and chest and shock, distress, upset and anxiety. The appellant argued that the assessment was manifestly inadequate.

The cap on general damages for non-economic loss is a significant amount, and under the table of apportionment in s 16, small variations in the proportion can have significant financial consequences for a plaintiff. This is because of steep increase in the award of damages where the proportion is between 15% and 34% of a most extreme case. Nevertheless, appellate courts will not intervene in the discretionary or evaluative judgment as to the appropriate proportion, except on the well-established grounds that the judge has in some way mistaken the facts of the legal principles to be applied or otherwise demonstrated error, which may only be discernible on the basis that the result is outside a reasonable range. [38]

The appellant underwent unsuccessful reconstructive breast surgery that led to serious infection and breast asymmetry. At first instance the appellant was awarded damages including for non-economic loss which was assessed under s 16 at 30% of a most extreme case. On appeal the appellant argued that the assessment was manifestly inadequate and that the damages should have been assessed as 40% of a most extreme case.

The assessment of s 16 non-economic loss is an evaluative assessment made by a trial judge. It is not appropriate for the court to engage in relatively minor alterations of such percentages or take account of the monetary consequences of such adjustments. The Court did not alter the award made by the primary judge under s 16. [39]

NSW Court of Appeal cases cited in discussion:

Dell v Dalton (1991) 23 NSWLR 528

The appellant suffered major psychiatric injury after witnessing a fight at a juvenile correctional facility. The primary judge found that non-economic loss was 25% of a most extreme case under s 16. On appeal, the appellant argued that the primary judge erred in finding that the appellant would be greatly assisted by the conclusion of the litigation and contended for a finding of 40%.

Section 16 calls for no exercise of “discretion” such that its review is governed by the principles in House v King (1936) 55 CLR 499. Rather, it imposes an obligation to determine the severity of the non-economic loss and to do so by reference to a proportion of a most extreme case. The purpose is to replace the former process of awarding a money sum by way of general damages with an obligation to evaluate the severity of the non-economic loss by reference to a proportion of a most extreme case. That proportion is translated into a monetary amount. The court should not look through s 16 and approach the exercise by reference to the dollar amounts which correspond to the percentages. That would be to subvert the statutory regime and would be legally erroneous.

Whilst some authorities refer to s 16 as involving an exercise of discretion, they do not go so far as to suggest that a House v King error needs to be established. They do suggest that the determination under s 16 is neither scientific nor normative and that it is not readily susceptible to appellate review. That is plainly so and the description of the task as “discretionary” may be seen in the oft cited proposition that the assessment involves matters of “opinion, impression, speculation and estimation” (Dell v Dalton (1991) 23 NSWLR 528 at 533). However, whilst the task involves some inevitable imprecision, it remains conceptually distinct from the exercise of a discretionary power and therefore its review on appeal is subject to different principles.

The primary judge, in the immediate case, was not called upon to exercise a discretionary power but, rather, to make a finding of fact as to the severity of the non-economic loss by reference to a proportion of a most extreme case. Ordinary principles of appellate review apply to that finding, although the intrinsically imprecise nature of the statutory task will have the effect that in most cases nothing will turn upon the different formulation of the applicable principles of appellate review. This was such a case and there was no error in the primary judge’s findings as the challenged finding of fact played no part in the s 16 finding of 20% of a most extreme case. [5], [28]-[33]

NSW Court of Appeal cases cited in discussion:

Clifton v Lewis [2012] NSWCA 229

The respondent suffered an injury whilst working as a cleaner at an abattoir operated by the second appellant. Damages for non-economic loss were assessed at 33% of a most extreme case. The appellants submitted that the assessment was so excessive that it must have been brought about by error.

Tobias JA found that, in order to displace a trial judge’s assessment under s 16, the appellant must establish an error of principle, a misapprehension of the facts or a wholly erroneous estimate of the damage suffered. The assessment of damages is more like an exercise of discretion than an ordinary act of decision. In the present case it could not be said that the primary judge’s assessment of the severity of the damage was so inordinately high as to be wholly erroneous.

Basten JA agreed with Tobias JA’s ultimate finding but observed that whilst an assessment of general damages under the general law was to be reviewed on principles analogous to those applied to the exercise of a discretionary power, the assessment of general damages is now reduced by statute to a determination of the severity of the injuries as a proportion of a most extreme case. This involves to translation of pain and suffering into a cash payment and on this approach, the assessment is not to be seen as analogous to a discretionary judgment but rather to be subject to general principles for appellate review. Therefore, if the appellate court’s assessment of the facts satisfies it that the primary judge’s assessment was erroneous, it should substitute its own view for that of the trial judge. If this permits a higher level of intervention in respect of damages awards under s 16, it is because of the significant change which has been made from the common law principles governing general damages. [5]-[19], [77]-[80]

NSW Court of Appeal cases cited in discussion:

Moran v McMahon (1985) 3 NSWLR 700

The respondent was hit and seriously injured during a motorcycle race training circuit. The primary judge assessed damages for non-economic loss under s 16 as 50% of the most extreme case. The appellant submitted on appeal that this assessment was manifestly excessive.

For an appellate court to reconsider a primary judge’s award of non-economic loss under s 16, the appellant must show error in the House v The King sense, or at least that the assessment was outside the reasonable range for such a decision.

In the present case, the primary judge was entitled to take into account the respondent’s exceptional pre-accident health, physical prowess and lifestyle when assessing the impact and extent of the respondent’s injuries and disabilities as a percentage of the most extreme case. The appellant failed to demonstrate relevant error. [203]-[207]

The appellant broke her ankle when she fell in a shopping centre carpark owned and operated by the respondent. The primary judge assessed non-economic loss as 25% of a most extreme case. The appellant submitted that the assessment was flawed because the primary judge wrongly determined the likely duration of the appellant’s condition and failed to give adequate weight to her depressive illness.

In order to displace the judge’s assessment that, in terms of s 16 of the Act, the severity of the appellant’s non-economic loss was 25% of a most extreme case, the appellant must establish an error of principle, a misapprehension of the facts or a wholly erroneous estimate of the damage suffered. The assessment of damages is more like an exercise of discretion than an ordinary decision and the settled rule is that an appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. No such error was demonstrated in the present case. [11], [28]

NSW Court of Appeal cases cited in discussion:

The respondent was awarded $10,000 in ‘nominal damages’ for breach of a Deed despite failing to prove that the relevant breach caused her loss. The primary judge also said that, in any event, the respondent had not established that the non-economic loss suffered was at least 15% of a most extreme case under s 16. The appellant submitted on appeal that s 16 left no room for an award of nominal damages where the respondent could not meet the s 16 threshold.

Part 2 of the Act does not apply to the award of nominal damages in respect of the breach of contract unless that award is itself of “personal injury damages” as defined in s 11. Even then, Part 2 would not preclude an award of nominal damages for breach of contract in the present case unless the award could be classified as “damages … for non-economic loss” with s 16(1). An award of true nominal damages is made precisely because the plaintiff has not sustained any loss or is unable to prove loss by reason of the breach. An award of nominal damages is not an award of damages for non-economic loss within s 16(1). [70]-[75], [79]

The respondent was injured after the railing he was sitting on gave way and caused him to land heavily on his buttocks and roll into an embankment. The respondent alleged that he suffered non-economic loss as a result.

Section 17A of the Act provides that, in determining damages for non-economic loss, a court may refer to earlier decision of that or other courts for the purpose of establishing the appropriate award. For that purpose, the parties of their legal advisors may bring the court’s attention to the awards of damages for non-economic loss in those earlier decisions. [12]

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery. An issue which fell to be determined on appeal was whether the operation of s 21 of the Act was excluded under s 3B(1)(a).

It is not clear that conduct which is reckless – even if it amounts to an intentional tort such as battery – will engage s 3B(1)(a). A battery which involves merely negligent conduct will not engage s 3B(1)(a) because the section looks to the nature of the conduct found to occur rather than to the cause of action which has been pleaded. Sections 3B(1)(a) and 20 operate upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is necessary to look at the character of the underlying conduct rather than whether the claim is in respect of an “intentional tort”. [33]-[35], [117]

NSW Court of Appeal cases cited in discussion:

Mr Sica was injured during a physical altercation with his neighbour, Mr Brophy, and sought damages for personal injury. It was accepted that Mr Brophy had struck Mr Sica, but was argued for Mr Brophy that he did so acting in self-defence. The primary judge found that Mr Sica had come close to Mr Brophy and lunged at him, and accepted that Mr Brophy reasonably believed that his actions were necessary to defend himself. Mr Sica appealed.

On s 52: Mr Brophy was entitled to rely on the defence in s 52. Even without finding that Mr Sica had first struck Mr Brophy, it was open to the primary judge to find that Mr Sica had at least assaulted him, and that that conduct was unlawful. Mr Brophy was responding to that unlawful conduct in striking Mr Sica, believing it necessary to do so in order to defend himself, and acted reasonably in doing so.

Ms Brighten attended the Sting Bar in Cronulla with her friend, Mr Provan. Mr Provan became intoxicated and disruptive. Mr Traino, the licensee, asked his friend Mr Richardson to help remove Mr Provan. Mr Richardson was trained as a security guard, but was not an employee. Mr Provan was evicted, and a skirmish occurred on the path. Ms Brighten left the venue to observe. Mr Richardson was moving backwards towards Ms Brighten at one point. She raised her hands and held the back of his shirt. He turned and struck her in the face, causing a fractured jaw. Ms Brighten commenced proceedings in the District Court, claiming damages for battery against Mr Richardson, in negligence against Mr Traino, as the licensee, and against the company operating Sting Bar, on the basis that they owed her a duty to protect her from the actions of other patrons. The primary judge held that Mr Richardson was not liable in battery because his actions were taken in self-defence, and also dismissed the negligence claims. Ms Brighten appealed. The Court of Appeal allowed the appeal with respect to the claim in battery, and dismissed it with respect to the negligence claims.

On s 52: Mr Richardson could not rely on the protection against civil liability in s 52 and the damages limitation in s 53, because Ms Brighten’s conduct was not unlawful: [43], [135], [145].

NSWCA decision cited in discussion:

State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery and found that self-defence was not made out. On appeal, the appellant submitted that the act was one of self-defence to which s 52 applied.

Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was “unlawful”. “Unlawful” conduct extends to conduct which is merely tortious as opposed to criminal. Further, the onus of establishing the elements of self-defence lies on the defendant. Section 52 then prescribes two necessary and sufficient conditions to establish a defence of self-defence: demonstrating, first, that the requisite subjective belief on the part of the defendant and, second, that the defendant’s conduct was a reasonable response to the circumstances as perceived by him or her. The second limb of the test contains both subjective and objective elements.

In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages which can be lifted if the court considers that circumstances are exceptional.

In the immediate case, the findings of the primary judge disclosed error in several senses – the primary judge treated the reasonable response limb as dispositive and confined attention to crime, not dealing with the possibility that the respondent was committing an assault. Further, the primary judge applied the wrong test for the appellant’s subjective state of mind, proceeding on the basis that his state of mind could not be inferred from the circumstances of the case but could only be sourced from direct evidence.

However, there were insufficient factual findings as to the appellant’s state of mind to determine whether the defence should be made out. A retrial was ordered. [42]-[45], [109]-[114]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v McMaster [2015] NSWCA 228

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204

The first respondent was shot by a police officer who was responding to a violent home invasion occurring at the premises at which the first respondent was living. The first respondent brought claims against the State in negligence and trespass to the person. The trial judge found that the State was liable in battery. On appeal, the State contended, among other things, that the defence of self-defence was made out pursuant to s 52 of the Act.

There were three elements of the defence for which s 52 provides which were relevant in the present matter: first, the conduct of the other person must have been unlawful; second, the person must have believed the conduct was necessary to defend another person; and third, the conduct must have been a reasonable response in the circumstances. The critical question in the immediate case was whether the first respondent was acting unlawfully. The answer to that question was “yes” – the first respondent was acting unlawfully by committing an assault in contravention of the Crimes Act 1900 (NSW) s 61 at the time he was shot. The first respondent was not acting in self-defence and, therefore, responsibility for the assault was not precluded by s 418 of the Crimes Act. The State therefore successfully made out the defence of self-defence under s 52 of the Act.

Furthermore, “unlawful” conduct extends to purely tortious conduct under s 52 of the Act such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort. As the first respondent was at least negligent in committing a civil assault when he was shot, s 52 would also apply on that basis.

[190]-[199], [200]-[209]

Ms Brighten attended the Sting Bar in Cronulla with her friend, Mr Provan. Mr Provan became intoxicated and disruptive. Mr Traino, the licensee, asked his friend Mr Richardson to help remove Mr Provan. Mr Richardson was trained as a security guard, but was not an employee. Mr Provan was evicted, and a skirmish occurred on the path. Ms Brighten left the venue to observe. Mr Richardson was moving backwards towards Ms Brighten at one point. She raised her hands and held the back of his shirt. He turned and struck her in the face, causing a fractured jaw. Ms Brighten commenced proceedings in the District Court, claiming damages for battery against Mr Richardson, in negligence against Mr Traino, as the licensee, and against the company operating Sting Bar, on the basis that they owed her a duty to protect her from the actions of other patrons. The primary judge held that Mr Richardson was not liable in battery because his actions were taken in self-defence, and also dismissed the negligence claims. Ms Brighten appealed. The Court of Appeal allowed the appeal with respect to the claim in battery, and dismissed it with respect to the negligence claims.

On s 53: Mr Richardson could not rely on the protection against civil liability in s 52 and the damages limitation in s 53, because Ms Brighten’s conduct was not unlawful: [43], [135], [145].

NSWCA decision cited in discussion:

State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery and found that self-defence was not made out. On appeal, the appellant pleaded that the act was one of self-defence to which s 52 applied.

Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was “unlawful”. “Unlawful” conduct extends to conduct which is merely tortious as opposed to criminal. Further, the onus of establishing the elements of self-defence lies on the defendant. Section 52 then prescribes two necessary and sufficient conditions to establish a defence of self-defence: demonstrating, first, that the requisite subjective belief on the part of the defendant and, second, that the defendant’s conduct was a reasonable response to the circumstances as perceived by them. The second limb of the test contains both subjective and objective elements.

In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages which can be lifted if the court considers that circumstances are exceptional.

In the immediate case, the findings of the primary judge disclosed error in several senses – the primary judge treated the reasonable response limb as dispositive and confined attention to crime, not dealing with the possibility that the respondent was committing an assault. Further, the primary judge applied the wrong test for the appellant’s subjective state of mind, proceeding on the basis that his state of mind could not be inferred from the circumstances of the case but could only be sourced from direct evidence.

However, there were insufficient factual findings as to the appellant’s state of mind to determine whether the defence should be made out. A retrial was ordered. [42]-[45], [109]-[114]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v McMaster [2015] NSWCA 228

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204

An altercation occurred when the respondent caught the appellant breaking apart his staircase with a sledgehammer. The applicant submitted that the primary judge applied the incorrect test and incorrect onus for the defence of self-defence.

The effect of s 53 is that, ordinarily, no award for damages can be made if the defence of self-defence is not available only because the defendant’s conduct was not a reasonable response to the circumstances as perceived by the defendant. However, this is subject to an exception where the Court is satisfied that the circumstances of the case are exceptional and a failure to award damages would be harsh and unjust. Even where the exception applies, s 53(2) limits the award of damages.

The onus of proof is on the plaintiff since the provision operates to prevent a court awarding damages against the defendant unless the court is satisfied of the two matters required to make out the exception. [65]-[66]

A struggle had taken place between SW and the Respondent taxi driver during which the taxi had begun to move forwards, ultimately reaching a speed of between 22 and 28 km/h before the SW fell out of the passenger side doorway. SW suffered serious spinal injuries and sued the driver, claiming that she had been pushed from the moving taxi. The driver told police that SW had produced a knife and threatened him, attempting to rob him, and a large kitchen knife was found by police under a nearby hedge. The trial judge concluded that SW was engaged in an illegal enterprise, being the commission of a robbery involving the use of a knife, with the consequence that she was prevented from recovering damages by reason of s 54 of the CLA. SW appealed.

On s 54: Though the trial judge did not explicitly address the second element of s 54(1), namely whether the conduct of the Appellant contributed materially to her injury, it went without saying that that element was satisfied in light of the judge’s finding for s 5D(1) that the commission of the offence was the dominant and immediate cause of SW’s harm: [82]. It followed inexorably from the primary judge’s finding of facts concerning the robbery that s 54 was satisfied: [85]. Even if SW had abandoned the criminal enterprise at the moment in which she fell from the taxi, s 54 prevents recovery for injury suffered “following” conduct constituting a serious offence, which was the case here: [86]. That the Respondent’s conduct may have materially contributed to the injury sustained is irrelevant: [88].

Ms Bevan, Mr Coolahan, and two others were taking illicit drugs, including crystal methamphetamine (‘ice’). Having run out of drugs early one morning, they drove to the house of a drug dealer. Ms Bevan obtained more ice by giving the dealer her brother’s iPod. All four of the young people then smoked it in a car park, using Ms Bevan’s ice pipe. When Mr Coolahan was driving them back from the car park, he lost control of the car on a corner and crashed into a telegraph pole shortly after 3:30am. Ms Bevan was seriously injured. She commenced negligence proceedings in the District Court against Mr Coolahan and the owner of the car (who was one of the other passengers at the time). The primary judge dismissed Ms Bevan’s claim on the basis that she was involved in a joint criminal enterprise (‘JCE’) with the defendants which precluded her from recovering damages from them. The primary judge then went on to notionally assess Ms Bevan’s contributory negligence at 25%, and determined damages contingently. Ms Bevan appealed. The defendants cross-appealed against the notional assessment of contributory negligence. By majority, the appeal and the cross-appeal were dismissed.

On s 54: the principles from Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 concerning when a duty of care will not be imposed on the basis that to do so would be incongruous or inconsistent with the policy of the law were not displaced or altered by s 54. Basten JA arrived at that conclusion on the basis that s 54 is directed to the availability of damages, whereas the general law principles are directed to the existence of a duty: [24]. Leeming JA did not consider that distinction to be decisive; rather, after attending to the substance of s 54 and its relationship to s 3A and surrounding provisions, his Honour concluded that s 54 should not be read so as to displace the operation of the general law principles: [74]-[92].

High Court decisions cited in discussion:

Miller v Miller (2011) 242 CLR 446; [2011] HCA 9

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The appellant alleged that the respondent’s actions amounted to breaches of the Crimes Act 1900 (NSW) and Crimes (Domestic and Personal Violence) Act 2007 (NSW) and invoked s 54 of the Act.

A “serious offence” is an offence that is punishable by imprisonment for six months or more. The onus of proof lies on the defendant and the standard of proof is the civil standard pursuant to s 54(1)(a). Under s 54(2), the prohibition in s 54(1) does not apply if the conduct of the defendant is itself an offence. In circumstances where the plaintiff suffers actual bodily harm, it is clear that the availability of s 54 will be inter-related with questions of self-defence. [50]-[51], [114]

NSW Court of Appeal cases cited in discussion:

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204