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[2026] NSWCA 116
mixed. Appeal allowed in part. The judgment of $175,300 was set aside and judgment entered for the plaintiff for $125,300. The appellant was ordered to pay three-quarters of the respondent's costs in the...
The Council remained liable for the injury caused when a tall, unstable cafe table fell onto a young child. The Court held that the risk was not insignificant and that the Council's attempt to broaden the comparison to risks involving other cafe furniture did not succeed, because those risks did not have the same essential character. However, the evidence did not establish that the child's scar or psychological effects were likely to reduce her future earning capacity. The Court therefore removed the $50,000 future economic loss award and reduced the judgment to $125,300.
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2,493 words · generated 07/10/2026
Randwick City Council operated and occupied the Des Renford Leisure Centre, which included a cafe as well as four pool areas. On 31 January 2020, Lily Wunderwald, then six and a half years old, was in the cafe after a swimming lesson with her mother and younger sister. The cafe was busy, with other children and parents present and people moving through the area [2].
Lily left the low table where she had been sitting and wandered around the cafe. CCTV showed her approach a tall table with a circular wooden top, metal pole and metal stand. The table was approximately as tall as Lily. She held its edge, moved away, returned to it, and later held it again. The primary judgment records that she likely applied her weight to the edge. The table toppled, Lily fell onto her back, and the tabletop struck her head [2]. She suffered a deep laceration to her forehead and scalp, which was repaired under general anaesthesia. The judgment states that she would have a permanent forehead scar [2].
The Council admitted that it owed a duty of care to people coming into the centre, including Lily [10]. The District Court found negligence and awarded $175,300. That amount included $112,500 for non-economic loss, $12,800 for future out-of-pocket expenses, and $50,000 for future economic loss [33]. The Council appealed on the risk assessment, the precautions required and the future economic loss award [18], [33].
The Court of Appeal, constituted by Leeming JA, with Stern JA and Ball JA agreeing, allowed the appeal only in part. It left the liability findings undisturbed but removed the $50,000 future economic loss component, entering judgment for $125,300 [43]-[46]. It also ordered the Council to pay three-quarters of Lily's costs in the Court of Appeal [44].
A feature of the appeal was the state of the expert evidence. Lily's expert, Mr Adams, had not inspected the actual table and made assumptions in his calculations, including about the tabletop weight and the table's centre of gravity. Leeming JA identified those limitations [5]. However, the Council had not called expert evidence to contradict the report or cross-examined Mr Adams, and had accepted at trial that there was no issue with his application of the mathematics [7]-[9]. The appeal therefore proceeded on the basis of his unchallenged opinion, including that very modest horizontal force could make the table unstable [9].
The liability analysis applied ss 5B and 5C of the Civil Liability Act 2002 (NSW). Section 5B(1) provides that a person is not negligent for failing to take precautions unless the risk was foreseeable, not insignificant, and one against which a reasonable person in that position would have taken precautions. Section 5B(2) identifies matters relevant to that last inquiry, including the probability and likely seriousness of harm, the burden of precautions and the social utility of the activity [11].
The Council did not challenge the finding that the risk was foreseeable [13]. Its first relevant ground challenged the finding that the risk was not insignificant. The Court accepted that there had been no comparable incident involving the tall tables during the preceding six or seven years, and noted the Council's reliance on that incident-free history [19]. But the absence of earlier incidents was not treated as decisive. The risk assessment also had to account for the table's physical characteristics and the number of children who could interact with it.
The decisive feature for s 5B(1)(b) was the unchallenged evidence that this table could be toppled by applying “very modest levels of horizontal force” [21]. The table was in a cafe frequented by families, where children might move around without direct supervision. The Court considered that many thousands of children could interact with the tables, even though the exact number was disputed [19]-[23]. Given that evidence, Leeming JA found no error in the conclusion that the risk of the table falling onto a child was not insignificant [23].
The second liability issue concerned the precautions and the Council's reliance on s 5C(a). That provision requires the burden of taking precautions against a risk to include the burden of precautions against similar risks [11]. The Council argued that this required consideration of risks from other cafe furniture, including lower tables and stools, and risks from children climbing on furniture or falling from it [24].
The Court rejected that proposed comparison. It explained that a risk of harm must be formulated by reference to its essential circumstances and general causal mechanism, and that “similar” risks for s 5C(a) have the same essential character [25]-[27]. The realised risk was that a heavy, relatively unstable item of furniture would fall onto a young child [28]-[29]. The possibility that a child might fall from a low table or stool was materially different: the injury mechanism was a child falling from furniture, rather than furniture falling onto the child [28]-[29]. Treating every possible injury from every item in the cafe as a similar risk would have expanded the inquiry beyond the risk actually being assessed.
The Court also rejected the Council's submission that the incident-free history had been given inadequate weight. The primary judge had considered that evidence, alongside the potentially serious consequences and the evidence about the number of visitors and reported incidents [30]. The Court concluded that the evidence had been weighed as a whole and disclosed no error [30]-[32]. The liability grounds were therefore dismissed.
The future economic loss issue had a different evidentiary basis. Section 13 requires a claimant to satisfy the court that assumptions about future earning capacity or other events on which an award is based accord with the claimant's most likely future circumstances. It also requires adjustment by reference to the percentage possibility that the events might have occurred absent the injury, and requires the court to state the assumptions and relevant percentage [34].
The primary judge had relied on two possible consequences: that Lily's scar might disadvantage her in the labour market when changing jobs, and that she might experience anxiety or stress leading to time off work or reduced hours [33], [38]-[39]. The Court found no adequate evidence establishing either as a basis for the award. There had been no investigation of the types of employment in which the scar could disadvantage Lily or how that disadvantage might operate. The possible future psychological effects were also expressed as possibilities, while the evidence was that Lily's psychological condition had stabilised [38]-[39].
The Court emphasised that a buffer is not a substitute for establishing some loss of earning capacity. It rejected the idea that a court could hypothesise some diminution and then assign a buffer without supported assumptions [36]-[37]. Nor did the fact that $50,000 was described as modest cure the problem. The amount had no demonstrated connection to the evidence, assumptions or percentage assessment required by s 13 [40]-[41]. Ground 4 succeeded.
The judgment applies existing statutory provisions rather than describing a legislative change. Its significance in this case is its explanation of how ss 5B and 5C work together when a defendant invokes other risks to reduce the apparent burden of precautions.
Before this decision, the provisions in issue already required a court to identify the risk of harm, assess whether it was not insignificant, and consider whether a reasonable person would take precautions. Section 5C(a) already required attention to similar risks when assessing the burden of precautions [11]. The judgment's clarification is that similarity is not established merely because other risks arise in the same premises or involve some of the same objects. The risks must share the essential character of the risk being assessed [25]-[29].
That does not mean the risk can be framed so narrowly that only the precise sequence of events is considered. The Court explained that s 5C(a) recognises that there may be multiple ways to characterise similar risks and that the defendant cannot avoid liability through an unduly specific characterisation [27]. Here, however, the Court found that the Council's suggested examples were not simply alternative formulations of the same risk. Falling from a stool and being struck by a table falling onto a child involved different causal mechanisms [28]-[29].
The decision also reinforces the statutory threshold for future economic loss. A buffer may assist where the plaintiff has proved a loss of earning capacity but its extent is difficult to calculate. It cannot dispense with proof that some loss exists, or with the s 13 requirements for assumptions and percentage adjustment [35]-[37]. The Court applied that distinction to reject this particular award [38]-[42]. It did not hold that a permanent scar or psychological sequelae can never support future economic loss. Its conclusion was about the evidentiary basis and reasoning in this record.
At [21], Leeming JA identified the “critical consideration” as the unchallenged evidence that the table could be toppled with “very modest levels of horizontal force”. In plain English, the table's ease of movement mattered to whether the danger was more than insignificant. The Court did not treat the possibility of a serious injury, by itself, as enough. It considered that seriousness together with the table's instability and the likely interaction of children with it [21]-[23].
At [25], the Court stated that similar risks under s 5C(a) are those “which have the same essential character”. In plain English, the comparison is not with every danger a defendant might have to manage in the same location. It is with risks that are sufficiently alike in the essential circumstances that create the danger.
At [28], the Court identified the relevant risk as that presented by “a heavy and relatively unstable item of furniture falling upon a young child”. This formulation explains why the Council's examples did not qualify. A child falling off a low stool may be a foreseeable cafe risk, but the source and mechanism of the injury are different from furniture falling onto the child [28]-[29].
At [35], the Court described s 13 as a statutory command requiring the claimant to satisfy the court that assumptions for future economic loss accord with the claimant's most likely future circumstances. In plain English, a court cannot award future loss just because it is conceivable. The assumptions must have a sufficient basis in the evidence and must satisfy the statutory framework.
At [41], the Court said that either the plaintiff has established an evidentiary basis and complied with s 13, or no order should be made. This explains why the modest size of the requested buffer did not resolve the issue. The problem was not simply whether $50,000 was too much or too little. It was that the award was not supported by established assumptions about future financial loss.
The s 5C(a) reasoning is relevant where a defendant argues that the burden of precautions must be assessed against a wider set of risks than the one that materialised. The judgment directs attention to whether the proposed comparisons share the essential character of the identified risk [25]-[29]. A question raised by this reasoning is whether the other risks involve the same source of danger and general injury mechanism, rather than merely arising in the same premises.
The case's application of s 5B(1)(b) arose from a combination of specific features: a tall table, evidence that very modest force could topple it, a cafe with many child visitors, and potential for a falling table to cause serious injury [20]-[23]. The Court's conclusion was expressly based on the evidentiary record, including the Council's decision not to contradict the expert evidence [7]-[9]. The judgment does not establish that every tall table, or every item of cafe furniture, presents a not-insignificant risk.
The future economic loss discussion is relevant where an award is proposed on the basis of possible future disadvantage or intermittent psychological effects. The judgment highlights the need to identify the assumptions relied on, the evidentiary basis for them, and the statutory percentage adjustment [34]-[41]. It distinguishes uncertainty about the amount of an established loss from a lack of proof that any loss of earning capacity has occurred [36]-[37].
The supplied judgment does not identify any later court's treatment of Randwick City Council v Wunderwald. It is dated 23 June 2026, and the text provided contains no subsequent decisions discussing, applying or distinguishing it. No conclusion about later treatment can therefore be drawn from this source.
The judgment itself draws on earlier authorities. It cites Uniting Church in Australia Property Trust (NSW) v Miller and Finniss v State of New South Wales in relation to formulation of the risk of harm [12]. It considers Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd on the need to identify the essential circumstances of the risk [25], and explains guidance reproduced from De Martin & Gasparini Pty Ltd v Bartlett on the formulation of risk [26]-[27].
For future economic loss, the judgment considers Brown v Hewson on the need to establish some loss of earning capacity before a buffer can be awarded [36]. It also applies the statutory approach discussed in Chen by her tutor Huang v Kmart Australia Ltd [35], Venues NSW v Kane [37], and Malec v JC Hutton Pty Ltd [41]. These are the authorities the judgment itself uses; they do not establish how later courts have treated this decision.
The judgment does not determine how the same-risk analysis would apply where the proposed comparisons share more of the relevant causal mechanism. It holds that falling from low furniture was not similar to being struck by heavy furniture falling onto a child, but does not provide a catalogue of all risks that would or would not have the same essential character [25]-[29].
The expert evidence also limits the reach of the factual conclusion. The Court noted significant assumptions and gaps in Mr Adams' calculations, including the centre of gravity and the absence of modelling of a vertical or near-vertical force [5]. It nevertheless decided the appeal on the unchallenged evidence and the Council's position at trial [7]-[9]. The judgment does not decide how the risk assessment would differ if the table's stability were disputed and supported by competing expert evidence.
On future economic loss, the decision identifies the evidentiary shortcomings in the two propositions relied on by the primary judge, but does not specify what evidence would have been sufficient in a different case. It notes the absence of investigation into relevant employment types, the way a disadvantage might manifest, and the percentage possibility of the suggested events [38]. It also notes the evidence that Lily's psychological condition had stabilised [39]. The appropriate evidentiary foundation will therefore depend on the particular claim and evidence.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Randwick City Council v Wunderwald [2026] NSWCA 116
Hearing dates: 12 June 2026
Decision date: 23 June 2026
Before: Leeming JA at [1]
Stern JA at [45]
Ball JA [46]
Decision: 1. Appeal allowed in part.
2. Set aside the judgment in favour of the plaintiff ordered on 4 December 2025, and in lieu thereof, enter judgment for the plaintiff in the sum of $125,300.
3. Order the appellant to pay ¾ of the costs of the respondent in this Court.
Catchwords: NEGLIGENCE — occupier’s liability — breach — risk of harm — similar risk — easily toppled table injured girl in cafe at leisure centre — whether risk of harm not insignificant — nature of other risks of harm which presented similar risks — whether reasonable occupier would have taken steps to fix or remove table
DAMAGES — future economic loss — plaintiff sustained permanent scarring — buffer for chance that plaintiff might in future be at disadvantage in workforce, or suffer apprehension or stress leading to reduced hours — evidentiary basis for award of future economic loss not established
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 13
Cases Cited: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56; 339 IR 419
Finniss v State of New South Wales [2023] NSWCA 292
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Kwong v Abdulwahab [2016] NSWCA 107
Phillis v Daly (1988) 15 NSWLR 65
Prouten v Chapman [2021] NSWCA 207
Russell v Carpenter [2022] NSWCA 252
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320
Venues NSW v Kane [2023] NSWCA 192
Category: Principal judgment
Parties: Randwick City Council (Appellant)
Lily Sara Wunderwald by her tutor Shannon Paul Wunderwald (Respondent)
Representation: Counsel:
D Lloyd SC, J Smith (Appellant)
J Sexton SC, A Campbell (Respondent)
Solicitors:
Mills Oakley (Appellant)
Longton Blackwell (Respondent)
File Number(s): 2025/482587
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The plaintiff, then six and a half years old, was seriously injured in the cafe of Des Renford Leisure Centre at Maroubra. The Centre was occupied and operated by the defendant. The plaintiff approached a table, approximately as tall as she was, with a circular wooden top attached to a metal pole on a metal stand. She held onto its edge with her hands, and applied her weight to the edge of the table. She fell onto her back, with the table coming down on top of her. The edge of the table top collided with her head and her forehead was cut open to the bone.
The primary judge awarded $175,300 in damages to the plaintiff, which included $50,000 for future economic loss. The defendant appealed, contending that the primary judge erred in reaching the following conclusions: (1) that the risk was not insignificant; (2) that, having regard to the burden of taking precautions to avoid similar risks of harm, a reasonable person in the defendant’s position would have taken the precautions of either affixing that table and similar tables to the floor or removing them all together; (3) that the plaintiff was entitled to an award of $50,000 for future economic loss by way of a buffer.
The Court (Leeming JA, Stern and Ball JJA agreeing) held**,** allowing the appeal in part:
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56; 339 IR 419; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, considered.
Brown v Hewson [2015] NSWCA 393*, Chen by her tutor Huang v Kmart Australia Ltd* [2023] NSWCA 96, Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20, considered.
When Lily was six and a half years old, she was seriously injured in the cafe of Des Renford Leisure Centre at Maroubra, which was occupied and operated by the Council. In addition to the cafe, the centre contains four pool areas. Shortly after 6pm on 31 January 2020, Lily, her younger sister and her mother were in the cafe following a swimming lesson. They were seated at a low table, on stools. There were a number of other children and parents in the cafe, and people were moving through the area between various parts of the centre. Lily left the table where she had been sitting and wandered generally around the cafe precinct. At 6:11pm, Lily approached a tall table – essentially, a circular wooden top attached to a metal pole on a metal stand. It was approximately as tall as she was. She held onto its edge with her hands. She moved away from the table and returned to it some 12 seconds later, and again held its edge. Lily then left the table, went to an ice cream display cabinet, and returned to the table some 50 seconds later. Once again, she held onto the edge of the table. It is likely that she applied her weight to the edge of the table, and it is clear that it began to fall onto her. Ultimately, she fell onto her back, with the table coming down on top of her, and the edge of the table top colliding with her head. Her skull was not fractured, but her forehead was cut open to the bone. She was taken to hospital where the clinical notes described a 10-12cm curved transverse laceration of the forehead and anterior scalp. The laceration was repaired the following day under general anaesthesia. She will have a scar on the top of her forehead for the rest of her life.
The entirety of the incident was captured on high quality CCTV footage which was in evidence at trial. It is clear that the circumference of the metal base is narrower than the wooden table top and thus more likely to overbalance if a child’s entire weight were placed on its edge.
In the District Court, Lily served an expert report by Mr Neil Adams, an expert in ergonomics and safety management. His report stated that he had not been permitted to access the table at the premises, but, by relying on another photograph with which he had been briefed, he observed that the base had a sticker indicating that it had been supplied by a company whose name suggests it supplied furniture to cafes. By reference to a website with that name, Mr Adams identified what he assumed were the components of that table. The principal reason for doing so was to determine how readily the table might be pushed over.
To my mind, there are many difficulties with the calculations relied upon by Mr Adams. They include the following.
First, the metal stand identified from the website is stated to have a weight of 23kgs. But Mr Adams’ calculations are based on the stand having a weight of 20.5kg. There is no explanation of why the weight of the stand was reduced by some 10%.
That the Council owed a duty of care was admitted. The primary judge stated at [65] that its duty was to take reasonable care for the safety of persons (such as Lily) coming into the centre, or alternatively that it was to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons (such as Lily) coming onto the premises. There was no challenge to either of those formulations, which his Honour regarded as identical for practical purposes.
The proceeding was governed by the Civil Liability Act 2002 (NSW). Sections 5B and 5C provide:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The formulation of the “risk of harm” is central to the operation of (inter alia) ss 5B and 5C: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]; Finniss v State of New South Wales [2023] NSWCA 292 at [31]. There was no challenge to the formulation of “risk of harm” put forward by the plaintiff which was adopted by the primary judge at [69]: “the risk of harm to children who could climb or pull on a tall round table of the type used in the cafe which might topple onto them when doing so, causing them injury.” Although there was no challenge on appeal to his Honour’s formulation of the appropriate risk of harm, that did not prevent a dispute between the parties as to the nature of “similar” risks regard to which was required to be had under s 5C(a) of the Civil Liability Act, to which it will be necessary to return.
The primary judge found in favour of Lily in relation to each of the three elements of s 5B(1), namely, that the risk be foreseeable and not insignificant and that a reasonable person in the Council’s position would have taken those precautions. There was no challenge to the primary judge’s conclusion that the risk of harm was foreseeable, for reasons identified by his Honour at [117]. These commenced with the finding based on Mr Adams’ opinion that only a modest level of horizontal force was required to put the table in motion, and once in motion, it could rapidly move towards an unstable position, leading to it toppling over. To this were added the propositions that (a) the size and weight of the table could generate sufficient force to cause injury to a child, (b) the cafe was used by families with young children, who (c) not uncommonly would move around the cafe area, not under the direct eye of their parents, (d) some of the children would not have been as tall as the table, (e) children were apt to be curious, frequently mischievous, and apt to be unaware of the dangers presented by objects, and (f) the precise sequence of events leading to the injury need not be foreseeable.
The finding by the primary judge that the risk was not insignificant relied on the reasoning that it was foreseeable, but his Honour also had regard to certain additional matters. First, his Honour referred to the potential of serious and catastrophic outcomes to children. Secondly, his Honour addressed the fact that in the previous six or seven years there had been no incident with the table, and the Council’s evidence that the table did not pose a risk, and the various submissions which had been made of this. It is necessary, in light of some of the Council’s submissions on appeal, to reproduce a third aspect of his Honour’s reasoning on this issue, which was at [122], and which drew upon evidence from Council’s only witness, Mr Brian Young, the aquatic services supervisor, whose role included assessing risks in the centre, as to the patronage of the centre and the cafe:
The following considerations somewhat undermine the weight to be given to Mr Young’s evidence on these matters. Firstly, contrary to the submissions of counsel for the defendant, the more important figures given by Mr Young were those that concerned the number of visitors who used the cafe. Visitors who used the cafe were more likely to linger in that area and potentially “interact” with the tables. Mr Young’s evidence was that over a thousand people used the cafe weekly. Using that figure, over 52,000 people a year used the cafe giving a total of 312,000 people for the 6 years prior to the accident. If 25% of those people were aged 12 and under, on those figures over 78,000 children aged 12 and under used the cafe in the 6 years prior to the accident. This is a much lower number than the 1,200,000 children aged 12 and under with the opportunity to interact with the tables as submitted by counsel for the defendant. Secondly, the evidence does not disclose how many times a tall table had been left in the same position, without stools or chairs around it, prior to Lily’s accident. Mrs Wunderwald’s evidence was that she had not seen the table in that position before. Mr Young’s evidence was that it was not always in that location, it was more likely to be with the other 3 tall tables and stools, and the position it was in when Lily encountered it was not its usual position at the start of the day. Their evidence on those matters drastically reduces the number of opportunities for children to have “interacted with” the table, as counsel for the defendant put it, in the way that Lily encountered it on the day of the accident – that is on its own, against the wall and without other tall tables or stools around it. Thirdly, one has to bear in mind Mr Young’s evidence about the types of incidents that were reported to him. I have referred to his evidence about that. Fourthly, it would appear that Mr Young had not been given any particular training about the identification of risk. This somewhat undermines any conclusions that should be drawn from his walk around work health safety inspection audits.
In relation to the absence of reported incidents, his Honour said that the weight attaching to an accident-free history was a question of fact to be determined in light of all the circumstances, in accordance with what was said in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309; [1986] HCA 20.
Turning to s 5B(1)(c), in relation to whether a reasonable person in the position of the Council would either bolt down the tables or else remove them, his Honour started with the proposition that the probability that the harm would occur if care were not taken was not high, in light of the absence of previous incidents, but this fell to be “considered against the unchallenged evidence of Mr Adams that given the inherent instability of the tables and the presumed substantial numbers and frequency of the presence of children at the centre, there was in his view a high likelihood that eventually a child in the position of Lily would sustain injury in the manner she did”. The primary judge found that the likely seriousness of the harm was borne out by the serious injury sustained by Lily, and that there was potential for much worse injury to be sustained, considering the size and weight of the table relative to a child. His Honour noted that the Council had conceded that serious harm could occur if a table was pulled over onto a child, and that there was no relevant burden in taking the precautions, and that no aspect of social utility bore upon the assessment. On that basis, his Honour concluded that a reasonable person would either have affixed the tables to the floor or removed them.
Having found the Council liable, his Honour assessed damages. Only one aspect of that is in issue on appeal, and it may be deferred until dealing with ground 4.
Ground 1 of the appeal challenged his Honour’s conclusion that the “risk was not insignificant” within the meaning of s 5B(1)(b), and ground 2 was a challenge to his Honour’s conclusion for the purposes of s 5B(1)(c) that a reasonable person in the Council’s position would have taken the precautions of either affixing that table and three others to the centre of the floor or removing them all together at [126]-[131]. No separate submissions were addressed to ground 3 which was the ultimate conclusion that the appellant had been negligent.
The Council emphasised the fact that on the evidence, there had never been any comparable incident involving one of the tall tables (there were in fact four in the centre) over the previous six or seven years since the redevelopment of the centre, that many thousands of people used not only the centre but also the cafe and then that there was no suggestion that Mr Young was not to be believed when he said it had never occurred to him that the tables presented a risk. There is some force in the appellant’s submission that there is a measure of conservatism in the calculations contained in [122] of his Honour’s reasons. But his Honour was responding to a submission made on behalf of the Council that there had been more than a million children aged 12 or under who had had an opportunity to interact with the table. His Honour using figures derived from Mr Young’s cross examination stated that the better figure was something over 78,000. It is fairly clear, and Mr Sexton (who appeared in this Court, but not at trial, for Lily) did not dispute that, on the evidence, the true figure was somewhere between those extremes. But nothing material turns on that. On any view, a very large number of children could interact with the tables.
The first matter relied upon by the primary judge in concluding that the risk of harm was foreseeable, which (expressly) contributed to the conclusion that the risk was not insignificant, was at [117](1):
The tables were tall with round bases narrower than their tops requiring the application of very modest levels of horizontal force in order to be put in motion. Once in motion they had a tendency to move rapidly towards an unstable position, leading to the table toppling over. Once in motion the tables were difficult to control due to their shape (round), height and weight. All of these attributes were established by the evidence of Mr Adams. Those attributes are also consistent with ordinary human experience of similar types of tall tables with round bases narrower than their tops.
His Honour went on to note that it was readily foreseeable that a falling table of the size and weight of that table would likely generate considerable force sufficient to cause injury to a child, in circumstances where families with young children were common in the centre, it was not uncommon for children to be moving around the cafe area, not necessarily under the direct supervision of their parents, and sometimes left to their own devices (as much is plain from the CCTV footage as well as ordinary experience), that the table would have been taller than a number of the children who visited the centre, and that children are naturally inquisitive, sometimes mischievous, and often unaware of the potential danger posed by objects. All of those matters resulted not merely in the risk of harm from the toppling of the tall tables upon a child not being far fetched or fanciful and instead being foreseeable, but also that the risk was “not insignificant”, that being a slightly more demanding standard: Prouten v Chapman [2021] NSWCA 207 at [24]; Russell v Carpenter [2022] NSWCA 252 at [20]. The critical consideration for the purposes of s 5B(1)(b) was the unchallenged opinion of Mr Adams that it was relatively easy for this particular tall table to be toppled over, through the application of “very modest levels of horizontal force”.
The Council relied on what had been said by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, and cited with approval by Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [24]:
There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.
So, we say that 5C(a) calls for an inquiry as to the burden of precautions that would include at least other tables, whether high or not, being pulled over; other chairs being pulled over; other tables and chairs being climbed on and pulled over; or, certainly, we respectfully submit that it would include other tables and chairs being climbed on and the person - the child, relevantly - falling off. But it wouldn’t be limited just to tables. It would extend, we would submit, to other items of furniture, again being pulled over or climbed on, because that was consistent with the broad identification of the similar risks concept in the authorities.
I do not accept the Council’s submission. Section 5C(a) requires regard to be had to “similar” risks of harm as that which is the focus of the inquiries demanded by s 5B. The “risk of harm” for the purposes of s 5B requires attention to the essential circumstances which presented the danger and in respect of which a reasonable person would take precautions: see Tapp v Australian Bushmen*’*s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 at [114]-[125]. The “similar” risks of harm to which the inquiry extends by reason of s 5C(a) are risks of harm which have the same essential character.
This Court stated in De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56; 339 IR 419 at [22] that
Guidance on the formulation of risk may be found in Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [52], where it was noted that:
(1) the formulation of risk of harm should identify the “true source of potential injury” (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith at [98]);
(2) “the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred”: Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at [55];
(3) “What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney ... at [67]), or because it fails to capture part of the plaintiff’s case (as in Garzo).”
The word “similar” in s 5C(a), and the obligatory extension of the inquiry demanded by the provision, recognises that there will often be multiple ways of characterising the relevant risk of harm, each similar to each other, regard to all of which must be had in order to determine the burden of taking precautions. It also reflects the fact that the precise mechanism which eventuates need not be foreseeable; rather it is the materialisation of a more generally described risk of harm which nonetheless captures the essential aspect of the case which is determinative. The effect of s 5C(a) is that a defendant cannot avoid liability by a characterisation which is unduly specific: Tapp at [108].
Of course, in the cafe there was a multitude of ways in which unsupervised young children could injure themselves. They could climb on the furniture and jump from it. They could climb on the counter at which beverages were served, if it were unattended. If they were running around, they could collide with various items of furniture if they fell. But the critical aspect of the risk of harm for present purposes was that presented by a heavy and relatively unstable item of furniture falling upon a young child. Insofar as the Council invoked the possibility of children falling off the stools and low tables which were also present in the cafe, that is not as a matter of ordinary experience “similar” to the risk of being injured by furniture falling on a young child nor is it similar for the purposes of s 5C(a).
To reiterate this point, the essential aspect of the risk which was realised on 31 January 2020, was a child climbing or pulling on furniture which then fell on top of the child then causing injury. That was a risk which was presented only by the tall, relatively unstable, table in the cafe and the other three such tables nearby in the premises. That is also a natural reading of the formulation by the primary judge. I do not accept the Council’s submission that his Honour was intending to include the risk of a child climbing onto an elevated surface (a table or the ice-cream display or the counter on which coffee was served) and falling from that surface. The words “which might topple onto them” captured the “general causal mechanism of the injury sustained” and are to be read distributively, applying to all risks captured by his Honour’s formulation. Nor do I accept the Council’s submission that in order to determine what a reasonable response to the risk would be, it was necessary to consider fixing all of the furniture, including the obviously stable low stools at obviously stable low tables, to the floor or removing them from the cafe premises. The risk that the low stools or low tables would overbalance and fall upon a child causing injury was not a relevantly “similar” risk of harm which is the subject of the analysis in ss 5B and 5C. Nor was the risk that a child might climb onto an elevated surface, fall from it and be injured by the fall.
The Council also submitted that the primary judge did not give adequate weight to the incident-free record of the table at the premises. His Honour attended to this aspect of the evidence in terms, noting that the risk was low, but the seriousness of the harm potentially very high, and also that the numbers based on Mr Young’s evidence were inflated, and did not record “near-misses”. There is no error in that reasoning. The evidence was to be weighed as a whole, and his Honour did precisely that.
237. The defendant is correct to say that in Lily’s case there is no recognised psychiatric disorder, but that does not mean it will be plain sailing for her into the future. I have addressed the effects that Lily’s scarring is likely to have on her emotional state and mental well-being when considering non-economic loss and future out-of-pocket expenses. The very same matters are likely to have a negative impact on her earning capacity such that they will be productive of financial loss from time to time.
238. The evidence demonstrates that Lily is a bright and conscientious young student. Both of her parents are tertiary educated and are educators themselves. Lily is highly likely to follow in the footsteps of her parents and attend university. As with the rest of modern society, she is likely to change jobs many times over the course of her life. In my view the scarring itself may well put her at a relative disadvantage on the open labour market when changing jobs. Once in employment she may well have periods of apprehension, anxiety, worry or increased stress as foreshadowed by Dr Sabaz requiring her to take time off work, reduce her hours or take other steps that will be productive of financial loss.
239. In my view Lily’s scarring and the emotional and mental consequences of it for her are likely to cause her future economic loss.
240. I do not accept the defendant’s submission that it is not open to the court to award a buffer.
241. Having regard to the above considerations (or assumptions), I accept the plaintiff’s submission that $50,000 is a modest sum in all the circumstances.
242. For all of those reasons I find that Lily is entitled to a buffer of $50,000 for future economic loss.
13 Future economic loss—claimant**’s prospects and adjustments**
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Section 13 is a statutory command. No award for future economic loss may be made without the claimant first satisfying the court that the assumptions accord with his or her most likely future circumstances. The reference to “most likely” is a reference to what may be the most likely possibility, rather than the most likely probability: Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [43].
Critically, it is necessary to establish some loss to earning capacity by reason of the defendant’s negligence. Sackville AJA explained the position in Brown v Hewson [2015] NSWCA 393 at [85]-[86]:
It is no barrier to a plaintiff’s claim for damages that it may be very difficult to assess the extent of his or her loss. Evaluating the worth of a loss of capacity to earn is usually an imprecise inquiry. Provided that the plaintiff has proved that his or her earning capacity has been reduced, a Court is not entitled to abandon the task of assessing damages because the evidence is meagre or imprecise. The award of a “buffer” may be appropriate if the impact of the injury upon the plaintiff’s earning capacity is difficult to determine.
There is, however, an important qualification. A plaintiff must establish, on the balance of probabilities, that he or she has suffered some loss of earning capacity. The difficulty confronting the Plaintiff in the present case is that the evidence does not establish that he has suffered a loss of earning capacity by reason of the injury to his elbow.
Even so, it is not possible, consistently with s 13, to hypothesise some diminution to future earning capacity, and leap to the conclusion that an amount of money, designated as a “buffer”, should be awarded. Such reasoning was criticised in Venues NSW v Kane [2023] NSWCA 192 at [87]-[88]. It is necessary to state the assumptions which are being made.
Two matters were relied upon by the primary judge in order to discharge the obligation in s 13 of the Civil Liability Act to make findings or state assumptions justifying amounts of future economic loss. One was the proposition that the scarring “may well put her at a relative disadvantage on the open labour market when changing jobs”. There was no evidence for that. Mr Sexton did not abandon its defence, but relied principally upon the sufficiency of the second ground. The finding was not, in terms, expressed as an actual disadvantage but merely the possibility. There was no investigation of the sorts of employment which might place Lily at a relative disadvantage, nor any analysis of how that relevant disadvantage might manifest itself. Still less was there any attempt at identifying the percentage possibility of these events occurring. The reasons are insufficient to support a finding of future economic loss on that basis.
The second aspect of the finding was the possibility that Lily might have “periods of apprehension, anxiety, worry or increased stress” requiring her to take time off work or reduce her hours or take other steps which might lead to financial loss. That too lacked any secure foundation in the evidence. It fell short of a finding of what would happen, but instead was expressed in terms of a possibility. It is to be borne in mind that the evidence was that her psychological condition had stabilised.
The $50,000 component presents as a figure plucked out of the air, purportedly to address the possibility that at some time in the future Lily might be employed and sustain economic loss because of some psychological sequelae of the injury. It is best regarded as a speculative possibility. I do not mean to be overly critical, but the roundness of the amount is suggestive of its being a guess, unconnected with any particular assumptions and percentages, contrary to s 13. If there were a basis for an award of future economic loss, there was nothing in the evidence to suggest that an award of $20,000, or $10,000 would not be equally justified. It is telling that no aspect of the reasons supports the award of $50,000 as opposed to an amount of $20,000 or $10,000.
In defence of the award, it was said that the $50,000 as a “very, very modest amount” equating very broadly to an amount of $1,000 per year at a time when average weekly earnings were about $100,000 per year. It was said that “We’re talking about an assessment that there may be a 1% impairment over time. I can’t put it any higher than that”. But the fact that the amount is “modest” does not, contrary to the submission accepted by the primary judge at [241], greatly bear on the exercise. Either a plaintiff has established an evidentiary basis for the award of damages for future economic loss, and has complied with the requirements imposed by s 13, or a plaintiff has not. If not, no order should be made. On the evidence, the most likely outcome by far is that there will be no financial disadvantage to Lily from a serious injury in her early childhood. The possibility that that is not so, and there will be sequelae which lead to pecuniary loss – which is concededly in the order of 1% – is best characterised as wholly speculative. That approach accords with what was said in (1990) 169 CLR 638 at 643; [1990] HCA 20 and decisions such as [2016] NSWCA 107 at [63]-[66] and [108].
For those reasons, I would uphold ground 4 of the appeal, but dismiss grounds 1-3. The result is a judgment in Lily’s favour of $125,300. Based on the material presently known to the Court, that result would not warrant any different exercise of the discretion as to costs at trial. In this Court, the appellant had limited success. The submissions, both written and oral, in relation to ground 4, were a relatively minor aspect of the appeal. In order to reflect that limited measure of success, I would order that the Council pay ¾ of the respondent’s costs in this Court. If there are other matters which should inform the exercise of the costs discretion, application may be made within the period specified under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).
I propose these orders:
Appeal allowed in part.
Set aside the judgment in favour of the plaintiff ordered on 4 December 2025, and in lieu thereof, enter judgment for the plaintiff in the sum of $125,300.
Order the appellant to pay ¾ of the costs of the respondent in this Court.
STERN JA: I agree with Leeming JA.
BALL JA: I agree with Leeming JA.
**********
Randwick City Council
Wunderwald
[2017] VSCA 301
(1986) 160 CLR 301
(1990) 169 CLR 638
(2000) 205 CLR 166
(1988) 15 NSWLR 65
(2022) 273 CLR 454
(2015) 91 NSWLR 752
(2020) 103 NSWLR 103
(2007) 234 CLR 330
Appeal allowed in part. The judgment of $175,300 was set aside and judgment entered for the plaintiff for $125,300. The appellant was ordered to pay three-quarters of the respondent's costs in the Court of Appeal: [44].
Secondly, an extract of the website provided in Mr Adams’ report does not include the specification of the antique tabletop. Mr Adams proceeded on the assumption that its diameter was 35cms and its thickness was 3cms. Based on the further assumption that the density of the wood was 650kg/m3, he concluded that the tabletop weight was 7.5kg. If all those assumptions are correct, his calculation of the weight of the tabletop is correct. However it is more than a little regrettable that the weight of the tabletop – a critical integer to the stability of the table which in turn was critical to the assessment of whether the Council had been negligent – has been determined by calculation when, it might be assumed, it would be one of the specifications on the website.
Thirdly, and to my mind by far more importantly, the calculations undertaken by Mr Adams make no assumptions about the centre of gravity of the table. A great deal turns on how much of the weight of the metal stand is found in its base resting on the floor, as opposed to being distributed in the vertical pole on which the tabletop rests. It is easy to imagine different ways in which the stand might be constructed, and in particular, the base might merely be sheets of metal, but it might also have internal reinforcing struts, or be otherwise weighed down. It is obvious that the lower the centre of gravity, the more stable the table is. Instead, parts of Mr Adams’ calculations appear to proceed on the basis that the only relevant consideration is that the lip of the tabletop extends further than the edge of the base. To be fair, Mr Adams was conscious of this, and carried out further calculations with an assumption that the table was lower than it was. That is better than nothing, but it is far short of what ought to have been an easy and indeed uncontroversial exercise to determine how readily the table which in fact caused serious injury to Lily would respond to horizontal and vertical forces applied to it by children.
Fourthly, Mr Adams did not seek to model the effect of the application of a vertical or near-vertical force to the edge of the table, which is how Lily caused it to topple over. Instead, he modelled the effect of the application of a horizontal force on the edge of the table, doing so in accordance with various international standards, none of which was applicable in Australia.
The foregoing is not necessarily critical of Mr Adams. This Court is unaware of precisely why Mr Adams was unable to access to the actual table in question, and it is quite possible that any errors were immaterial, especially having regard to the approach taken by the Council to Mr Adams’ report.
The foregoing points were raised during the hearing of the appeal, which proceeded on the basis, correctly, that nothing turned on them. That is because in this trial, the defendant Council did not adduce any expert evidence to contradict Mr Adams report, nor did it seek to cross examine him. Indeed, when the primary judge asked junior counsel who then appeared for the Council whether there was any issue that Mr Adams had “used the wrong table or wrong weights or anything he mentions”, his Honour was told that “there’s no issue that he has misapplied the mathematics underpinning his opinion”. Further, counsel then appearing for the Council positively submitted “I’m not going to be making a contrary submission that a very large amount of force was required” (which, in the context, must mean that he was not going to submit that a very large amount of force was required).
The stability or instability of the table was a critical aspect of the mechanism of Lily’s accident. The defendant Council chose to litigate that issue while positively accepting the plaintiff’s case that very modest levels of horizontal force were required to topple the table. No application was made for this appeal to be conducted on any different basis, and it is easy to see the difficulties, which in all likelihood would be insuperable, standing in the way of that course. Further, the primary judge was alert to at least some of the difficulties and assumptions in Mr Adams’ report, but appropriately took the view that there was “no reason to allow for this possibility in circumstances where the table had been preserved by the defendant and the defendant did not challenge Mr Adams’ basic measurements”: at [43(6)].
Accordingly, this appeal falls to be heard or determined on the basis of the unchallenged opinion evidence of Mr Adams, including that:
the table would be expected to become unstable “with the application of very modest levels of horizontal force” on one side;
if the table had been proactively assessed, it would have been categorised prior to the incident as “an item of furniture likely to impose levels of risks on users that are appropriately categorised as intolerable” using the language of HB295.1.2016 Product Safety Framework; and
the table had not been “designed so as to minimise the risk of injury to the user… so that physical injury and damage are avoided” within the meaning of an international standard EN1730:2012 Furniture – Tables – Test methods for the determination of stability, strength and durability.
There is nothing remotely surprising in the result reached by the application of ss 5B and 5C to this litigation. Cafe-operators should not use high tables which can topple upon the application of only very modest force in areas frequented by young children, as was the case (on the evidence) in the Council’s cafe. There is no difficulty in the conclusion that a reasonable cafe-operator should use a table which is more stable, or else if the unstable table must be used, should fix it in some way to prevent its fall.
No error has been established in the conclusion of the primary judge.
This ground of appeal is made out.