CLA: Foreseeability & “not insignificant”

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

  1. In the present case, the source of the respondent’s injuries was the impact of the chair’s right armrest with her groin. In Shaw v Thomas [2010] NSWCA 169 at [43] Macfarlan JA said:

“Under the general law relating to the tort of negligence it is well established that it is unnecessary ‘for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable’ (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] – [43]).

  1. It is equally unnecessary to determine the precise source of the plaintiff’s potential injuries when identifying the relevant risk for the purposes determining negligence under Part 1A of the Civil Liability Act. For example, in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [123]) Tobias AJA (with the concurrence of Meagher JA) identified the relevant risk as “that of a person slipping on the painted surface of the crossing and thereby suffering an injury.” Importantly, his Honour found that it was unnecessary to articulate the risk “in any greater detail than that.”

David Cormack – Brisbane Barrister & Mediator

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