Wunderwald v Randwick City Council

Texts Cited: H Luntz and S Harder Assessment of Damages for Personal Injury and Death (5th ed., 2021, LexisNexis)

Category: Principal judgment

Parties: Plaintiff: Lily Sara Wunderwald by her tutor Shannon Paul Wunderwald
Defendant: Randwick City Council

Representation: Counsel:
Mr A. Campbell (Plaintiff)
Mr S. McCarthy (Defendant)
Solicitors:
Longton Legal (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2022/00309177

Publication restriction: Nil

Judgment

1. Lily Wunderwald (“Lily”) is 12 years old. She was 6 years old when she was injured in the café of the Des Renford Leisure Centre at Maroubra, in Sydney, on Friday 31 January 2020. She brings these proceedings by her tutor, her father Mr Shannon Wunderwald.

2. Lily sues Randwick City Council for damages in negligence as the occupier of the café.

3. The Council denies liability, and in the event that it is found liable disputes the amount (or quantum) of damages.

4. Both liability and quantum must be determined in accordance with the framework provided by the Civil Liability Act 2002 (NSW). I will address the questions of liability and damages separately.

LIABILITY

A. THE FACTS

5. The relevant underlying facts concerning liability were not in issue.

6. The Council admits that it operated the Centre and that it was the occupier.

7. The Centre first opened in 1963. The café was opened in September 2012 or 2013 after significant renovations had been carried out adding the café, a gymnasium with a weights room and an aerobics room and a new administration office. The café is close to the front entrance of the Centre.

8. On the day of the accident (31 January 2020), Lily was in the café with her mother, Mrs Sara Wunderwald, and her younger sister, Ruby. Lily had finished her regular Friday afternoon swimming lesson. Lily and Ruby have an older brother, Marley, who was born in 2010. Mrs Wunderwald had been bringing one or other of the children to the Centre for swimming lessons on a regular basis since before the renovations.

9. Mrs Wunderwald could not remember if they ate in the café that particular afternoon. She thought maybe they had a drink. Sometimes they would stay back and have some chips in the café and sometimes they just liked to sit and regroup after the swimming lesson and changing. Usually Mrs Wunderwald would make a phone call to her husband who would be with their eldest son. Sometimes Mr Wunderwald would then come to the Centre or they would arrange to meet somewhere else.

10. By 6:07 PM, Mrs Wunderwald, Lily and Ruby were sitting together on separate stools around a table. What happened during the next 9 minutes and 56 seconds was recorded on CCTV. The accident happened during this time. The video uses a 24-hour clock and I will do the same.

The video

11. At the start of the video (about 18:07:21), Mrs Wunderwald is sitting facing the camera, Lily is to her left, which is to the right of the viewer, and Ruby is directly opposite Lily. Behind Mrs Wunderwald, in the picture diagonally to her left, can be seen 2 tall round rubbish bins and one tall round table. The tall round table is against a wall, as is one of the rubbish bins. The other rubbish bin is adjacent to the end of a countertop which forms part of the countertop in the serving section of the café – where people go to order and collect their food or drinks. There are no seats or stools around the tall round table. There is nothing on the tabletop. Behind Mrs Wunderwald, in the picture diagonally to her right, is a Peters ice cream display cabinet. To the right of the Peters ice cream display cabinet there is a sliding glass door which leads to the outdoor pools.

12. The tall round table I have identified is the one that injured Lily. I will refer to it as “the table”. The video shows that both the top of the table, which appears to be made of wood, and the base of the table, which appears to be metal, are round; the diameter of the top is larger than the diameter of the base, by a significant margin; and the top and base are joined by one round column, which appears to be metal. The table was one of 4 such tables in the café at the time of the accident. A still photograph of one of those tables which the parties agreed had been taken at 6:35 PM on Monday, 10 February 2020 was included in the court book (at page 53). The features of the table I have just described can be seen more clearly in that photograph. Mr Young also gave evidence that the tables had a metal base.

13. An expert witness called by the plaintiff, Mr Neil Adams, was able to identify the type of table and its manufacturer from photographs. His evidence about it was not disputed by the Council. If it was wrong, the Council could have disputed it quite easily because, it emerged during the hearing, the Council had kept the table in question in storage since the accident. I accept Mr Adams’ evidence about the physical characteristics of the table, and in particular the dimensions and weight of its various elements. According to Mr Adams, the height of the table from the floor to the upper side of the tabletop was 1.097 metres, the weight of the tabletop was 7.5 kg, the weight of the base 20.5 kg, the width of the tabletop was 0.7 of a metre and the width of the base was 0.55 of a metre.

14. I will not attempt to describe everything that happens in the video. However, returning to it, shortly after the video commences, Lily gets up from her stool and starts moving around. At about 18.08:50, a friend of Mrs Wunderwald, who Mrs Wunderwald had not seen for quite a long time, walked in with her 3 children through the sliding glass door from the outdoor pools and stopped to speak to Mrs Wunderwald. At that time Mrs Wunderwald was still sitting on her stool and Lily was on her mother’s lap. Mrs Wunderwald’s friend was standing. After about a minute Lily hops off her mother’s lap and starts moving around. At this stage, Mrs Wunderwald and her friend were still talking to one another. They continued to do so until the accident.

15. At about 18:10:17 Mrs Wunderwald stands up and continues speaking to her friend. The table is to the right of Mrs Wunderwald. Lilly plays on the floor with her sister Ruby.

16. Lily then goes to the table for the first time (at 18:11:01). She put the fingers of both of her hands on the top of the table. As she does this the top of the table is about level with the top of Lily’s head. In order to put her fingers on the top of the table, she reaches up. Each arm is bent at the elbow in a more or less right angle. With her fingers on top of the table she appears to lean back a little and to sink down, allowing her knees to bend. As she does this her head is well below the top of the table. While she does this, an adult walks past having come in from the outdoor pools.

17. Lily then moves away from the table briefly and returns to it for a second time (at 18:11:12). This time she puts the fingers of both her hands on top of the table again and moves away shortly afterwards. The image on the video at 18:11:16 shows a full view of Lily. At that time she has the fingers of both of her hands on top of the tabletop; both of her arms are bent at more or less right angles; and the table top is more or less in line with the top of her head. It follows that Lily and the table were about the same height as each other.

18. Whilst Lily is at the table for a 2nd time, Mrs Wunderwald is still speaking to her friend and Ruby climbs onto the stool next to her mother then across into her mother’s arms. Mrs Wunderwald is still holding Ruby when the accident happens.

19. Next Lily goes over to the Peters ice cream display cabinet, then she goes to speak to her mother, and returns to the ice cream display cabinet. She then comes back to her mother, who is speaking to her friend, before returning to the table for a third and last time – this is when the accident happens.

20. The view of Lily in the video is obscured by her mother (who is holding Ruby) and her mother’s friend. At 18:12:03 one can see the fingers of Lily’s right hand on the tabletop with what looks like a straight right arm. At 18:12:05 one can see the table starting to fall, Lily’s right arm, her head and her shoulders. At this stage her right arm is straight and her head is upside down, moving towards the floor as though trying to look back over her head. The top of the table hits the floor near her mother’s and her mother’s friend’s feet. As this happens one can see the fingers of Lily’s left hand move from the top of the table; the rest of Lily is obscured. Mrs Wunderwald and her friend then roll the table away and Lily can be seen on her back on the floor holding her forehead. Mrs Wunderwald then takes Lily into her arms. Within a very short space of time a lifeguard arrives.

After the video

21. After receiving first aid at the scene, Lily was taken to Sydney Children’s Hospital, Randwick by ambulance. With the aid of the hospital records, Dr Michael J McGlynn OAM, Plastic, Reconstructive and Hand Surgeon subsequently described the injury Lily had sustained and her subsequent treatment as follows. She had sustained a laceration to her forehead and anterior scalp. She was taken to the hospital with the laceration site bandaged. The hospital clinical notes described a 10 to 12 cm curved transverse laceration of her forehead and anterior scalp down to exposed bone. The next day (1 February 2020) the laceration was repaired in the operating theatre under general anaesthesia.

Mrs Wunderwald

22. Mrs Wunderwald gave oral evidence.

23. She was not asked either in examination in chief or in cross-examination whether she saw the accident happen. No doubt that is because it is reasonably clear from the video that Mrs Wunderwald was not in a position to see Lily when she went to the table on any of the 3 occasions she went there.

24. Mrs Wunderwald said that she had not seen the table in that position before the date of the accident. She said that she had seen tables similar to it at the front of the café where you order and collect your food and drinks. When she had seen the table before, or the similar tables, she had seen it with chairs around. She had seen lots of people sitting at the table or tables waiting for their order or sometimes sitting there to eat. In comparison to the table and stools that she, Lily and Ruby had been sitting around on the day of the accident, the tables at the front of the café were taller as were the seats around them. She said that there was no way that she would put Ruby on the tall stool and leave her independently because it was too high and she would fall.

Mr Young (the Council’s Aquatics Services Supervisor)

25. Mr Young, Randwick City Council Aquatics Services Supervisor, gave oral evidence.

26. Mr Young is based at the Centre and has held the same position for 21 years. His core responsibilities relate to the operations part of the aquatics side of the Centre, whether that be water quality or maintenance and work health and safety. He has people who report to him, and he reports to the Centre manager.

27. Mr Young described the renovations I have already referred to. He was not quite sure, but he said that the new café was opened at the same time as the gymnasium in either September 2012 or September 2013. He was familiar with the table involved in Lily’s accident. He said that it was one of 4 of the same tables purchased just before the opening of the new café.

28. Mr Young’s evidence was that between 2012 or 2013 and 2020 the 4 tables were located in the foyer, near the café. Either side of where the tables were located in this part of the foyer, was the indoor pool and the change rooms.

29. During a short break in giving his oral evidence Mr Young drew a diagram, not to scale, showing the location of the 4 tables relative to the indoor pool, the change rooms, the café, the main entrance and the exit to the outdoor pools, amongst other things. His diagram became Exhibit 1. Three of the tables I have just mentioned are shown on the diagram with symbols that resemble small lollipops outside and to the lower right of the incomplete rectangle marked with the words “INDOOR POOL”. The diagram also shows a rectangle opposite with the words “CHANGE ROOMS”. On the right of the diagram about halfway down the page there is another incomplete rectangle with the word “CAFÉ” written inside. Directly underneath that incomplete rectangle is another with the words written inside “EXIT TO OUTDOOR POOLS”. On the diagram, immediately adjacent and to the left of the café and “EXIT TO OUTDOOR POOLS” a similar lollipop symbol appears which is more readily recognised as a round topped table with a round base - this represents the table involved in the accident. The main entrance to the centre is marked at the bottom of the diagram with the words “FRONT ENTRANCE”.

30. Mr Young gave evidence that between 2013 and 2020 the 4 tables were not always in exactly the same positions but they had moved around. They were, however, centralised to a specific area outside the café and foyer area. When asked to agree that as at the date of the accident and beforehand the table involved in the accident was “not normally” in that location, Mr Young said “not always”. When asked whether it was generally around where you order the food and it generally has chairs around it, Mr Young said “It would be more likely next to the other 3, on the other side”. He agreed that the other 3 tables, being the tables at or adjacent to the indoor pool, had stools around them. Mr Young’s evidence was that the position of the table Lily pulled down on herself as shown in the CCTV footage and as marked on Mr Young’s diagram was not the usual position for the table at the start of each day.

31. Mr Young said that in the years between 2013 and January 2020 between 800,000 and 900,000 people on average visited the Centre. At least a quarter of those were children aged about 12 and under. Between 2013 and 2020 a few hundred people used the café each day. He said weekly it was over a thousand people using the café.

32. Mr Young said that as part of his responsibility for work health and safety there was a procedure in place for him to be made aware of accidents, other incidents and injuries at the Centre. The procedure in place between 2013 and 2020 was that the duty manager or the first person on the scene would prepare a written document called an incident report. The incident report would be handed to Mr Young to investigate and follow up. If the incident occurred outside core hours, Mr Young would be informed about it. The sorts of incidents reported to Mr Young were: “Heart attacks, medical emergencies. If a lifeguard had to do a rescue, if, if, if we, if, if a lifeguard referred someone to the doctors or hospital for stitches if they cut themself. So if they referred someone to someone, if they did first aid, they would do an incident report with more information.”. As part of his core responsibilities, Mr Young became aware of every reported incident. Between the period of 2013 to 2020, no incident at any time had been brought to Mr Young’s attention which involved an accident relating to a high table at the centre.

33. Mr Young said that as part of his occupational health and safety responsibilities, several times a year, which could be with 2 or 3 or more months between them, either he or someone to whom he delegated the task would do what he called a walk around work health safety inspection audit. Mostly he did it himself. He said that this would be a check around the Centre “for any hazards, any work health safety things that we would identify”. He would look for “anything and everything that could be potential hazards”. In the course of doing that over a number of years he had not identified any hazards with respect to the high tables.

34. Mr Young said that there were also “regular day checks”. This included staff members checking tables: that they were clean and tidy and placed in their correct position before the centre opened and then again in the evening. Mr Young said they had a point to return the tables to if they were not already there each morning. Cleaners would move tables and chairs around to vacuum and to clean, and the Centre’s staff would put them back into the original position to start with.

35. When asked what qualifications he had in the area of occupational health and safety, Mr Young replied “The original 5-day work health and safety course, and updates from time to time for new legislation and, and things like that.”.

36. Mr Young was not aware of “any audit or focus or test of the stability of the high tables” from 2013 to 2020. He was not aware of any testing “about the propensity of the high tables to perhaps topple over” at any stage prior to the accident. Mr Young was not aware of any “ergonomic evaluation” or “consideration of the ergonomics” of the table before the accident. When doing his walk around work health safety inspection audit every 2 or 3 months there was no particular consideration given to the physical characteristics of the high table. It was more of a matter that they were back, placed in the position the defendant wanted them to be “rather than any particular analysis of the safety aspects of the table”. From Mr Young’s own observations he believed that the tall tables posed no more risks to entrants as opposed to the lower tables and he did not believe there were any added risks because of the different characteristics of the table. Before the accident, Mr Young “didn’t think there was a problem” and he thought “they were just as stable as the other tables which were lower to the ground”.

37. Mr Young agreed that it was not uncommon for “kids to be moving around (the) area” shown in the CCTV footage, and “not necessarily under the direct eye of their parents”. Mr Young disagreed that “around the café kids are sort of running around and doing their own thing from time to time”. Mr Young said that “staff would intervene if kids are running around”. When the question was put in terms of “walking around”, Mr Young agreed with the questioner that “They might be walking around, going over to the ice cream machine, going over to the tall table, going to the bins, perhaps walking around behind their mum rather than in front of them? They’re just sometimes left to their own devices, correct?”.

38. Mr Young said that it was a requirement of entry that around the pool area itself the Centre followed the Royal Lifesaving keep watch at public pools policy, which is that at certain ages parents need to be within arm’s reach or maybe in the water with the child. It depends on the age of the child.

39. Mr Young was not at the Centre when Lily had her accident, he had left work for the day. He received a phone call that evening and before he came back to work on the Monday he had been emailed a copy of the incident report. Sharleen, who was Mr Young’s equal, was the supervisor on-site at the time of Lily’s accident. In the box on the incident report under the heading “Proposed Preventive Action”, Sharleen wrote “Have tall tables checked for stability and/or have secured into ground.”. Above that, in the box on the incident report under the heading “Proposed Corrective Action” someone else had written “Table removed, and all similar tables moved under grandstand under Sharleen’s instruction.”. This was most likely written by Jack Owen, who signed the report.

40. Sometime after the accident, 3 of the tables were in fact secured into the floor. The 4th table, being the one involved in the accident, was kept in storage. The 3 tables secured into the floor were bolted into the concrete floor roughly where they are shown near the indoor pool on Mr Young’s diagram. The Council used its contractor to do this. The contractor first made 4 holes through the metal base of each table and then put 4 bolts through each base into the concrete floor below.

Expert evidence on liability

41. The plaintiff relied on 2 reports prepared by Mr Neil D Adams, an expert in ergonomics and safety management, one dated 14 December 2023 and a second dated 10 April 2025.

42. The defendant did not require Mr Adams to attend for cross-examination and presented no expert evidence on liability of its own.

43. Mr Adam’s evidence was therefore left unchallenged. In summary:

44. Mr Adams prepared his report “on the papers”, as he put it, without interviewing either Lily or Mrs Wunderwald, or undertaking an inspection of the incident location generally and tables of the type that were associated with the incident in particular. He was provided with documents, photographs and a copy of the video from the CCTV.

45. He was able to identify the supplier of the table from the photographs and obtain specifications of the most similar table base and most similar table top from the supplier’s website. He then used the weights and dimensions set out in those specifications to determine the approximate gross weight of the resulting table and the magnitudes of the horizontal forces that needed to be applied at the level of the tabletop to induce tilting of the table under various circumstances.

46. Mr Adams stated the basic measurements of the table in Annexure 2 to his report. I set those out earlier.

47. Mr Adams calculated that if the table (or a table of apparently very similar type) was positioned on a flat floor with adequate friction (e.g. carpet) without being secured other than by gravity, it could be induced to tilt with the application of a horizontal force at the level of the tabletop of only 7 kilograms (equivalent to 69 newtons). In his opinion, this demonstrated that very modest levels of force, such as those of a relatively young child in a position similar to that of Lily would be capable of exerting, would cause the table to tilt, to become unstable and ultimately to fall. Taking into account that the video shows that Lily was also exerting some vertical force on the tabletop as she leaned back, and on the assumption that she weighed 18 kilograms, Mr Adams was of the opinion that the level of horizontal force needed to induce instability of the table decreased very slightly from 7 to 6.5 kilograms (or from 69 to 64 newtons). The hospital records show that Lily actually weighed 20.2 kilograms. The difference between Lily’s assumed and actual weight was not addressed in the evidence. However I infer that using Lily’s actual heavier weight would decrease the level of horizontal force needed to induce instability still further, but only very slightly.

48. Elsewhere in his report Mr Adams described a little over 7 kilograms of horizontal force as involving the application of relatively gentle pulling forces. He said that to add a level of context to the magnitude of the force involved, the opening of the door of the domestic freezer in his kitchen required an exertion of a little over 8 kilograms of force.

49. Mr Adams also allowed for the possibility that the weight of the table base may have been different to that used in his calculations, such that the weight of a table base might have been disproportionately concentrated in the bottom section. I see 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.

50. Mr Adams said, which was not challenged by the defendant and I accept, that it was clear from the video footage that at the time of the accident the table was neither fixed to the floor by any means other than gravity nor secured to the wall or any other bracing structure.

51. Mr Adams said that no Australian Standard had specific relevance to tables, but that the handbook published by Standards Australia “SA HB 295.1: 2016: Product Safety Framework, Part 1: Hazard Assessment for Product Safety” provided relevant guidance or advice. If the table had been assessed prior to the accident under that framework, Mr Adams was of the opinion that the table would have been categorised as an item of furniture likely to impose levels of risk on users that are appropriately categorised as “intolerable” using the term provided in that framework. In Mr Adam’s opinion, that type of categorisation would have justified the implementation of preventative actions that were only undertaken after Lily’s accident.

52. In the absence of an Australian Standard, Mr Adams was of the opinion that the British Standard “EN 15372: 2016 Furniture – Strength, durability and safety – Requirements for non-domestic tables” and the European and Irish Standard “IS EN 1730: 2012 Furniture – Tables – Test methods for the determination of stability, strength and durability” allowed for an objective assessment of the stability of the table in the form of a horizontal static load test. As he explained in his 2nd report, Mr Adams was of the opinion that the table would have failed the horizontal static load test by a substantial margin, indicating that it would have been rejected as suitable for use in cafés and the like if the objective assessment stipulated in the British Standard had been performed.

53. Mr Adams was of the opinion that any person who interacts with a table that is unable to satisfy those stability tests, and so, which can be expected to become unstable with the application of very modest levels of horizontal force on one side of the tabletop, will be exposed to a significant risk of injury if that interaction involves either exerting horizontal pushing or pulling force of sufficient magnitude on the tabletop. This, he said, is because of the tendency of the table to be induced by that force to move rapidly towards an unstable position, leading to the table toppling over and possibly landing on the person with sufficient force to be potentially injurious.

54. Mr Adams said that the potential for people to sustain injury as a result of an item of furniture toppling and impacting with them is not a particularly new or unusual phenomenon. In this context he referred to the 2018 publication by the Australian Consumer and Competition Commission of an article entitled “ACCC targets quad bikes, button batteries and furniture safety”. In the article, the ACCC said that it was working with state and territory consumer agencies to improve the safety of baby walkers and toppling furniture. It said “(a)bout 50 children are in hospital each week due to furniture falling on them and again, there has been deaths following accidents”. The article quoted Melanie Courtenay, the CEO of Kidsafe Victoria, as saying that “children’s curiosity and lack of awareness of danger placed them at an increased risk of injury from TV and furniture tipovers”. Mr Adams also referred to a 2021 report published by the United States Consumer Product Safety Commission. Mr Adams did not suggest that the defendant should have been aware of these particular reports. As I understand it, he referred to them only to make good the proposition that the potential for people, and particularly young children, to sustain injury as a result of an item of furniture toppling on them is not a particularly new or unusual phenomenon.

55. Mr Adams expressed the opinion that it is quite obvious on general safety management principles, and should therefore have been within the knowledge of the defendant, that the table that was associated with the incident would be potentially unstable due to its size and weight distribution generally, and most specifically because it’s top was substantially larger than its base. He was of the opinion, accordingly it should also have been within the knowledge of the defendant that it would be inappropriate to make that type of table available in publicly accessible areas within the centre without also ensuring that it was appropriately secure (e.g. bolted to the floor) so that it would not become unstable with the application of very modest levels of horizontal force that the CCTV and calculations he had made demonstrated were necessary to make the table unstable.

56. Mr Adams considered that the provision in a publicly accessible section of the centre of a table of the type that fell onto Lily, without checking the stability of the table and then either modifying or securing its base to improve its stability sufficiently to ensure that it could not be pulled over by a child who was not even attempting to move it resulted in a situation in which the item of furniture had a genuine safety deficit. He said that his opinion on that matter was informed by his view that the reasonable attendee of the centre would have little, if any, expectation that a table in the café might fail in such a potentially catastrophic manner in response to the application of relatively gentle pulling forces.

57. Mr Adams was of the opinion that even if there had not been any previous incidents to put the defendant specifically on notice, it should already have been aware of the potential for injurious incidents involving café furniture if relatively basic hazard identification and risk assessment processes concerning the exposure of visitors to possible sources of harm had been implemented. Mr Adams said that specifically, any items of furniture that were purchased and made available in publicly accessible areas within the centre should have been assessed against the most relevant guide or guides produced by Australian Standards and ideally would have also been checked for conformity to international standards. Mr Adams was of the opinion that in addition, all such items of furniture should have been inspected and assessed proactively, with the intention of ensuring (to the extent reasonably practicable) that they were continuously capable of meeting relevant criteria concerning their stability, strength and durability.

58. Mr Adams was of the opinion that there were several reasonable preventative actions that were available and which could and should have been implemented to eliminate or control the risk of injury. Included amongst those, Mr Adams said that the table (and others of the same or similar type) could have been assessed for potential risk, with even a basic level of assessment likely to reveal that it was too hazardous to be made available in any of the publicly accessible sections of the centre without being modified, secured, or at least subject to suitable safety warnings/instructions. Following an assessment for that purpose, Mr Adams was of the opinion that at least one of the following actions could have been taken: (a) the tables could have been removed from the centre, with safe alternatives being provided instead; (b) the base could have been effectively secured to the floor (e.g. by means of blocks or suitably positioned weights).

59. Mr Adams was of the opinion 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.

60. Mr Adams was of the opinion that having regard to the following factors:

(i) the amount of publicly available information about the high incidence of toppling furniture as causes of injury; (ii) the detailed specifications in documents such as the Standards Australia handbook 295.1 in relation to the general assessment of products to maximise consumer safety; (iii) the detailed specifications in documents such as the British Standard EN 15372 and the European and Irish Standard EN 1730 in relation to assessing the properties of non-domestic tables that have the potential to affect end user safety, and which are used for the purposes such as hospitality; (iv) the structural features of the table, and the fact that the size and weight of the tabletop relative to the size and weight of the base contributed to the unit being top-heavy; (v) the fact that the table was neither securely attached to the floor or some other suitable structure, and was consequently capable of becoming unstable with the application of quite modest levels of horizontal force; (vi) the likelihood, presumably readily observable to the defendant’s employees on a regular basis, that children would interact with furniture in ways that could result in the inadvertent application of forces of types and of sufficient magnitude to have the potential to induce instability; and (vii) the requirements of the Australian consumer Law, concerning the need for items to meet the reasonable expectations of consumers concerning their personal safety when interacting with those products;

18. it should have been foreseeable to the defendant that if a table of that type was simply made available in publicly accessible space without being secured in any way, that large numbers of people, including many children, could be expected to interact with the table over time, and that a visitor, and most likely a child, might eventually sustain injury as a result of the table becoming unstable and falling during an interaction of a predictable type.

B. GENERAL LEGAL PRINCIPLES

44. At this stage I will discuss the general legal principles applicable to Lily’s claim.

Duty of care

45. There was no issue about the fact that the Council was the occupier of the Centre, and as such owed Lily a duty of care. There was some disagreement about how the duty should be expressed, and I will address that when I give my analysis of liability in light of the parties’ submissions.

Breach of duty

46. The real issue raised by the parties on liability focused on the question of breach of the duty, and more particularly on the issues raised by section 5B of the Civil Liability Act 2002 and to a lesser extent section 5C.

47. Section 5B of the Civil Liability Act, 2002 provides:

(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.

48. Section 5C provides:

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.

Risk of harm

49. In order to apply these provisions it is first necessary to identify the relevant risk of harm.

50. As explained by Gordon, Edelman & Gleeson JJ in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 at [106]), the proper assessment of the alleged breach of duty depends on the correct identification of the relevant risk of injury, because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury.

The risk of harm was foreseeable – s.5B(1)(a)

51. Determining whether the risk of harm was foreseeable within the meaning of s.5B(1)(a) requires an application of the test for foreseeability identified by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at 47: Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267, per Payne JA & Simpson AJA said at [21]; Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57 per Mitchelmore JA (Stern JA & Harrison CJ at CL agreeing) at [60]. Stated shortly, a risk is foreseeable if it is not far-fetched or fanciful: Black Head Bowling Club at [21]. In the words of Mason J in Wyong Shire Council v Shirt at 47:

“… the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.”

The risk of harm “was not insignificant” – s.5B(1)(b)

52. The question of whether the risk of harm was not insignificant sets “a slightly more demanding standard” than one that is far-fetched or fanciful: Prouten v Chapman [2021] NSWCA 207 per Meagher & Leeming JJA at [24], referring to the decisions collected in Bunnings Group Ltd v Guidice [2018] NSWCA 144 per the Court (Leeming JA, White JA and Emmett AJA) at [53]-[54]. In Black Head Bowling Club at [24], Payne JA and Simpson AJA referred to it as being “only slightly more onerous than the common law test that the risk of harm be real and not far-fetched or fanciful”.

A reasonable person would have taken those precautions – s.5B(1)(c) & 5B(2)

53. Once the conditions in section 5B(1)(a) and (b) are established, the question under section 5B then becomes whether a reasonable person in the position of the defendant would have taken the precautions that the plaintiff alleges should have been taken (ss 5B(1)(c), 5B(2)): Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 per the Court at [28].

54. Whether a reasonable person would have taken precautions against a risk is to be determined prospectively, not with the wisdom of hindsight: Adeels Palace at [31] and [40]. For elaboration on what that means, see Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 at [105] and [126]-[129]; and Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [65]-[67].

55. Section 5B (2)(a)-(d) are mandatory considerations to be borne in mind in determining the critical conclusion in section 5B(1)(c), namely whether a reasonable person in the defendant’s position would have taken the precaution. Section 5B(2)(a)-(d) does not set out an exhaustive list of matters to be brought to bear in answering the question posed by section 5B(1)(c), “other relevant things” may be taken into account: Venues NSW v Kane [2023] NSWCA 192 at [60] & [62] per Leeming JA (Adamson JA & Simpson AJA agreeing).

56. The consideration mandated by section 5B(2)(c) – i.e. the burden of taking precautions to avoid the risk of harm – is required to be undertaken in accordance with section 5C(a) – i.e. the court must have regard to the burden of taking precautions to avoid similar risks of harm for which the person may be responsible: Venues NSW v Kane [2023] NSWCA 192 at [64] - [65] per Leeming JA (Adamson JA & Simpson AJA agreeing).

Causation

57. Causation must be determined in accordance with sections 5D and 5E.

58. It was not seriously put in issue and it is unnecessary for me to discuss legal principles.

C. WHAT WAS THE COUNCIL’S DUTY OF CARE?

59. By her Amended Statement of Claim Lily pleaded that as the occupier, the defendant “owed a duty of care to take reasonable steps to ensure that visitors, including the plaintiff, were safe” (paragraph 5).

60. In its Defence, the defendant admitted it was the occupier and owed a duty of care to visitors of the Centre. It asserted that “the duty of care it owed to visitors of the Leisure Centre was a duty to take reasonable precautions against foreseeable and not insignificant risks of harm to those visitors who were taking reasonable care for their own safety” (paragraph 5 d.).

61. The parties did not address these two different ways of stating the duty of care in their submissions. Their focus was on breach of duty, and more particularly, the application of section 5B of the Civil Liability Act 2002*,* to the circumstances.

62. To the extent that it is necessary for me to decide, I do not accept either party’s statement of the duty of care.

63. In Strong v Woolworths Ltd (2012) 246 CLR 182, the appellant slipped and fell on a potato chip in a sidewalk sales area outside the entrance to a Big W store at Centro Taree Shopping Centre. This area was under the care and control of Woolworths, which traded as Big W. In their joint judgment, French CJ, Gummow, Crennan and Bell JJ said (at [3]): “It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area”.

64. In Gomez v Woolworths Group Ltd [2024] NSWCA 121, the appellant slipped and fell on a piece of mango in the entrance to a Woolworths supermarket in Margaret Street in Sydney. It was admitted on the pleadings that as the occupier of the supermarket premises Woolworths owed a duty of care to the appellant. Gleeson JA (with whom both Bell CJ and Adamson agreed) said (at [12]): “There is no dispute that the content of the duty owed by the occupier of the premises is to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises …”.

65. Those two ways of stating the duty of care are equally applicable to the present case. On that basis, the Council owed a duty of care to take reasonable care for the safety of persons (such as Lily) coming into the Centre. Alternatively, the duty owed by the Council was to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons (such as Lily) coming on to the premises. As I understand it, there is no practical difference between the two in the present case.

D. WHAT WAS THE RISK OF HARM?

66. In her Amended Statement of Claim (paragraph 18), Lily identified “the foreseeable risk to a lawful entrant including children attending the leisure centre sustaining injury from pulling a table which was not adequately fixed to the ground”. The defendant denied this allegation in its Defence to the Amended Statement of Claim.

67. In oral closing submissions, counsel for Lily submitted that the pleaded formulation of the risk of harm was not general enough. Counsel submitted that the risk of harm needed to be defined with some generality and should not be unduly narrow and that it was more appropriately expressed as the risk of harm to children who could climb or pull on furniture which might topple over onto them when doing so. Counsel submitted that it was not necessarily the risk of harm of the particular table, but the risk of harm of furniture and structures within the premises which children might use which are unable to withstand the foreseeability of children using them in a manner which was unwise, such as the plaintiff did, and thereby coming to her harm. Ultimately, as I understood it, counsel submitted that it was the risk of harm associated with the use of the type of table involved in the accident that needed to be considered. Certainly, that was the focus of the evidence the parties called.

68. In closing submissions (written or oral), the Council did not take issue the submissions made for Lily about the relevant risk of harm and did not invite the Court to adopt a different formulation.

69. In those circumstances, I accept the plaintiff’s submission that the risk was the risk of harm to children who could climb or pull on a tall round table of the type used in the café which might topple onto them when doing so, causing them injury.

E. BREACH OF DUTY: THE PARTIES’ SUBMISSIONS

70. Counsel for both parties provided written submissions which they addressed orally.

The plaintiff’s (Lily’s) submissions

71. In terms of section 5B(1)(a), in light of the evidence of Mr Young, counsel for the plaintiff conceded that the Council did not know of the risk of harm, so that the question is whether the risk of harm was foreseeable because the Council “ought to have known”.

72. Counsel referred to the unchallenged analysis and opinion of Mr Adams about the low level of horizontal force required to cause the table to tilt and to topple over.

73. Counsel submitted that the table was very easy to topple over, and that it was an unsteady table which would foreseeably fall over.

74. Counsel referred to Mr Young’s concession in evidence that sometimes children were left to their own devices in the café area.

75. Counsel submitted that the defendant ran the Centre for the benefit of young families in the area, and knew it was to be frequented by children. It was foreseeable that children would perhaps be moving around the area, not always supervised strictly by parents.

76. Counsel submitted that the Council should have known that children are apt to do things that perhaps might be unwise, referring to Thompson v Bankstown Corporation (1953) 87 CLR 619 at 631. There Dixon CJ and Williams J endorsed previous judicial observations about the ”very inquisitive and frequently mischievous disposition” of young children, “likely to meddle with whatever happens to come their way”. Counsel also referred to the decision of the Court of Appeal in Lolomanaia v Rush (1996) 24 MVR 128, a case involving a 3 year old boy who “popped out in front” of the respondent’s car, for the discussion of principle concerning the standard of care of a driver to young children on or near the road. Counsel submitted that what came from the discussion for present purposes was that because children are unpredictable you have to be more careful than you might otherwise be.

77. Counsel submitted that the frequency of Australian children being injured by falling furniture and toppling televisions was illustrated by the Australian Consumer and Competition Commission article referred to by Mr Adams. Counsel emphasised the observation of the CEO of Kidsafe Victoria that “Children are naturally inquisitive and common household furniture can look very different and interesting from a toddler's perspective - for example, they may see items of furniture like bookcases and shelves as a ladder to gain access to reach an item that is stored up high.”. I note that the same person had observed that children's curiosity and lack of awareness of danger placed them at increased risk of injury from TV and furniture tip overs.

78. Counsel submitted that the question of whether the Council ought to have known of the risk of harm raised a fairly undemanding test when you have children with a propensity to perhaps climb over furniture and pull on tall structures.

79. Counsel submitted that the one single table seemed to be out of place on the day of the accident. It had no seats around it. To a child it may not have appeared to be a table let alone a table or structure that could not bear the weight of a child swinging on it. Counsel asked rhetorically what did Lily see in front of her eyes when she went to the table? Did she see a bar table which others might see as something that you can lean on and have a chat over? What was it to her? It was a structure. It’s got a lip. You can grab hold of it. The point being, counsel submitted, that in the eyes of a child, something might look completely different than to an adult. It’s there, by itself, up against the wall. It was not, for instance, in the middle of the room with chairs around it, which would identify perhaps its purpose and would form some sort of barrier to approaching it in the way that Lily did. It probably might have had other people sitting around it to say “Hang on, kid”.

80. Counsel submitted that according to the evidence the table was not normally there, it was normally used as a table with chairs around it.

81. The plaintiff submitted that in all the circumstances the risk of harm was foreseeable.

82. As I understand it, for more or less the same reasons, the plaintiff submitted that the risk of harm was not insignificant within the meaning of section 5B(1)(b). Counsel added that the ACCC articles demonstrated that falling furniture can cause catastrophic outcomes.

83. The plaintiff submitted that the precautions a reasonable person in the Council’s position would have taken were to either affix the 4 tables to the ground or to remove the 4 tables altogether.

84. Counsel for the plaintiff also submitted that there was a failure to properly assess whether or not the table was fit for its purpose. Counsel submitted that a proper safety audit ought to have taken place. Counsel did not necessarily put this forward as a “precaution”, but perhaps more as a “precursor” to taking one or other of the 2 precautions of fixing the tables to the floor or removing them. Counsel submitted that on the evidence of Mr Young, it cannot be said that an adequate risk analysis was performed, and the defendant never turned its mind to the appropriateness of the table from a safety point of view.

85. Insofar as concerns section 5(2)(a), counsel submitted that whilst there may have been no incidents regarding toppling tables causing injury recorded at the Centre since it was renovated in 2013, that did not mean the risk of harm was “improbable”. According to the evidence of Mrs Wunderwald and Mr Young, the table was not normally in that position. According to Mr Young, it was normally in another area with chairs around it. Counsel submitted that those chairs would have acted as a visual cue to a child that it was a table, and the chairs would have been a natural barrier for someone approaching the table from a child’s height. Further, it was submitted, there may have been people sitting around the table so as to stop a child pulling on it, or they may have been people nearby as it was next to the servery area. Counsel also submitted, in circumstances where we do not know exactly how many times the table was left in that position, the fact that it had not happened before was explained by the table being rarely there.

86. Counsel submitted that the cases referred to by the defendant in respect to “retrospectivity” concern fixed structures usually fixed in the one place, and the fact that no previous incidents might have occurred is relevant when the setup of the premises is the same, but not relevant when the tables are moved around and sometimes have chairs next to them and sometimes not. Whilst counsel for the plaintiff identified them as cases in respect of “retrospectivity”, I understand that he was referring to a number of cases cited by counsel for the defendant in his opening address and referred to again in closing submissions about the relevance of there being no prior accidents or no prior incidents.

87. As to section 5B(2)(b), the plaintiff submitted that the likely seriousness of the harm was clearly borne out by the nature of the injury sustained by Lily.

88. As to section 5B(2)(c) and 5C(a), counsel submitted that there was no relevant burden placed on the defendant to take the suggested precautions against the risk of harm. There were only 4 high tables at the Centre and it is now known that the remaining 3 tables were bolted to the floor. Mr Young gave evidence that contractors altered the tables to the floor. There is no evidence that this was an overly expensive task. Section 5C(c) means that it is impermissible to use the subsequent taking of action of bolting the tables to the floor as an admission of liability in connection with the risk. However, it is permissible to use it to illustrate a feasible alternative available to the defendant prospectively: Izzard v Dunbiar Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [97]. (I would add that the same point is made in Venues NSW v Kane [2023] NSWCA 192 at [52].)

89. As to s.5B(2)(d), counsel submitted that whilst the defendant undoubtedly provides services which have a social utility, there is nothing in the nature of the activity that would preclude the defendant from having to take reasonable precautions in circumstances.

The defendant’s (the Council’s) submissions

90. The submissions for the Council had 2 broad themes. The first was to emphasise that no accident of a similar kind had happened before. The second was to say that the plaintiff’s case was based entirely on “retrospective reasoning”, rather than being viewed prospectively.

91. In summary, as I understand it, the defendant submitted that the plaintiff failed at each of the 3 hurdles of section 5B(1).

92. In the context of responding to the submission of counsel for the plaintiff that Mr Adam’s calculations demonstrated that very modest levels of force such as those of a relatively young child in a position similar to that of Lily would be capable of exerting would cause the table to tilt, to become unstable and ultimately fall, counsel for the defendant conceded that the video somewhat spoke for itself that the table was able to be toppled with the application of minimal force (Transcript 106).

93. In written submissions (paragraph 8) counsel submitted that due to the existence of the CCTV, there is very little doubt as to how the accident occurred. Counsel submitted that although the plaintiff’s mother was in attendance, she was not watching the plaintiff at the time of the accident; the plaintiff became interested in the table; she reached up to touch its top a few minutes before the accident; she placed her hands up on the top of the table “and lifted herself off the ground, forcing the table to topple over on her”. (I do not accept that the video shows that Lily “lifted herself off the ground”. I described earlier what the video shows.)

94. Counsel emphasised the evidence of Mr Young about the number of visitors to the centre who had the opportunity, so it was submitted, “to interact with any of the 4 tables”. I have already referred to Mr Young’s evidence about this. He said that in the years between 2013 and January 2020 between 800,000 and 900,000 people on average visited the Centre. At least a quarter of those were children aged about 12 and under. Between 2013 and 2020 a few hundred people used the café each day. He said weekly it was over a thousand people using the café.

95. Based on those figures, counsel submitted that if one takes 800,000 visitors per year for 6 years prior to the accident there were 4,800,000 people moving through the area with the opportunity to interact with any of the 4 tables. If 25% of that total number were children aged about 12 and under, it meant that there were 1,200,000 children aged 12 and under over that 6 year period having the opportunity to interact with the tables. Counsel submitted that even those visitors who did not divert to the café had to walk through it or very close to it, with the consequent opportunity to “interact” with the tables.

96. Counsel submitted that Mr Young had a very strong knowledge of the centre and how it operated and practised. Counsel submitted that if anyone would be expected to know that there had been either another accident or another incident involving the table, which would include toppling tables even in the absence of someone suffering injury, it would be Mr Young because he walked through the area 25 to 30 times a day, had a CCTV showing the area in his office and was the person to whom anything that happened was reported.

97. Counsel submitted that if there was an inherent problem with the tables falling over becoming unstable, Mr Young would be the person who would be expected to have known about it. This was because he did audits of the facility. Counsel submitted that he did not notice anything about tables.

98. Counsel submitted that based on Mr Young’s evidence there had never previously been an incident of this kind. Counsel submitted that Mr Young would know; his job required him to know; and his office was located very close to the table.

99. Counsel submitted that the plaintiff’s case was based entirely on “retrospective reasoning”. Counsel submitted that with the benefit of hindsight, literally everything is foreseeable. With the benefit of that same hindsight, it would, naturally have been possible to bolt or otherwise affix the table to the ground or to have removed all the tables from the café. But when the occurrence is viewed “prospectively”, counsel submitted, the position drastically changes.

100. Counsel submitted that the evidence of Mr Young was very important and referred to a number of cases in which the relevance of the absence of prior warnings or accidents had been considered. Counsel referred to:

101. Cruise Group Pty Ltd v Fullard [2005] NSWCA 161. In that case the plaintiff tripped on the coaming as she went through a doorway on a ferry-like vessel operated by the defendant. The coaming was a raised portion about 4 inches in height and about one and half inches in depth across the bottom of the doorway. Its purpose was to prevent water running through the opening. The accident occurred in February 1999. Mr Saunders, the managing director of the respondent, gave evidence that in the operation of the vessel since 1987 she had carried about 10,000 passengers annually and he was not aware of anyone falling over any of the coamings. He had travelled on about 80% of the cruises. He accepted that he would probably learn of a fall only if it was reported to him, and that it was possible that that there had been falls of which he was not aware ([7] per Giles JA). Counsel quoted the last paragraph of the reasons from the judgment of McClellan AJA who had agreed with the reasons of Giles JA, but added additional observations. McClellan AJA said (at [62]) “To my mind, the fact that so many passengers have been carried on the vessel since 1987 without a fall being reported to Mr Saunders leads inevitably to the conclusion that no more was required to be done by the appellant to discharge its duty of care to passengers.”. Giles JA had taken Mr Saunders’ evidence into account in determining that the probability of injury occurring was very small or slight. Giles JA said (at [15]) “Mr Saunders would surely have been made aware of any fall of significance. With 10,000 or so passengers annually over 12 years, that no falls had come to his knowledge was powerful reason to conclude that there was a minimal degree of probability that the foreseeable risk would eventuate.”. In his dissenting judgment Basten JA took the view that the primary judge had not erred in giving Mr Saunders’ evidence limited weight in the circumstances (at [34]).

102. Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2008] NSWCA 330. In that case, the plaintiff tripped and fell heavily in an area outside the main entrance to the defendant’s aged care facility. That area was used by vehicles and pedestrians to move between the entrance and a visitors’ car park. The plaintiff tripped because there was a difference between the height of the edge of a concrete slab and a row of slightly sunken brick pavers which ran across the direction in which she was walking. The difference was somewhere between 10 and 20 mm. Counsel referred to paragraph 27 in the reasons for judgment of Meagher JA (with whom Leeming and White JJA agreed). In that paragraph, his Honour addressed the question of whether the primary judge should have held that the risk of harm was “not insignificant”. In his Honour’s view, the evidence before the primary charge supported the conclusion that the risk of someone tripping and falling was “insignificant” because of the obviousness of that risk and remoteness of the likelihood that people using the area would fail to observe and take account of the uneven surface. Counsel for the defendant emphasised Meagher JA’s statement that “The evidence as to the absence of any reported falls, or other complaints, for the period of at least 15 years … is wholly consistent with an assessment of the risk of tripping as being insignificant; as was the fact that Mrs Bruce herself had walked across the area ‘for the 9 months prior to the accident including up to about 100 times without any difficulty’.”.

103. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. That case is well known for Heydon JA’s exposition of the legal principles concerning the admissibility of expert evidence. The plaintiff fell at her place of employment on stairs leading from the car park on the roof of the building to the offices below where she worked. The trial judge’s conclusion was that the plaintiff’s fall was because of the slipperiness of a tread on the stairs rather than because she simply lost her footing. This conclusion was based on the expert opinion of Professor Morton that the stairs were slippery. On appeal, all 3 members of the court preferred the lay history of incident-free use of the stairs to conclude that the stairs were in fact not slippery, rather than accepting the expert opinion of Professor Morton. Counsel for the defendant referred to the summary of that lay evidence given by Priestley JA at paragraph 5. His Honour calculated that between the time that she commenced work and the accident over a 2.5 year period, the plaintiff had walked down over the step on which she fell at least 575 times. Allowing for absences from work his Honour reduced the number to 500. His Honour said that since all the steps seem to have had the same composition, the relevant figure was probably at least 7000 times. The plaintiff fell once. She gave no evidence that she had ever slipped. There was no evidence that anyone else ever slipped. His Honour concluded that one in more than 500 uses of a step (or 7000 uses of all of the steps in a stairway) is not evidence that the step (or the steps in the stairway) is (or are) slippery in any relevant sense of the word, but it is evidence of the opposite. Powell JA applied similar reasoning, but without the numbers (at [10]), Heydon JA referred to the numbers (at [55]) and applied similar reasoning (at [102]).

104. Counsel also cited Council for the City of Sydney v Bishop [2019] NSWCA 157 “as to foreseeability more generally”, but more particularly for Macfarlan JA’s quotation and endorsement of the observations of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74. In the passage quoted by Macfarlan JA, Mahoney JA had said:

“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.”

102. Counsel also emphasised that Macfarlan JA went on to say (in Bishop at [20]) that Mahoney JA’s observations were cited with approval by Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [24], who added at [23]:

“There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective.”

103. In concluding his written submissions on liability, counsel submitted (paragraph 16, under the heading “Analysis”) that a fair analysis of the plaintiff’s case is that it contends that a perfectly safe cafe could have been made a bit safer if it had the benefit of retrospective knowledge. It is of course factually correct that the table could have been bolted to the floor or replaced altogether, but it does not follow that the failure to do so amounts to a breach of duty of care on the part of the occupier. Rather, there was no breach. There was no breach of duty because there was no breach of section 5B of the Civil Liability Act 2002. The occasion of a young child, unsupervised, to pull a table down upon herself was an extremely unlikely occurrence. Not surprisingly, nothing of the kind had ever previously occurred. Viewed prospectively, and in the light of thousands of other children having suffered no like misadventure, the accident simply was not reasonably foreseeable to the defendant.

104. In oral submissions (Transcript 119), counsel submitted that the table was not unstable. Counsel submitted that there was nothing unstable about the table when it was used for its proper purpose. This was a table that was literally pulled over by a child. And it's true when used for that purpose, which is so alien to its proper purpose, it could fall over and did fall over. Counsel submitted that it was alien to the other 1.2 million children who one can infer came through the premises in that time and saw no reason or purpose or inclination to pull it down upon themselves.

105. In oral submissions (Transcript 120), counsel submitted that in terms of (or perhaps having regard to) the complete absence of previous incidents or accidents, pursuant to section 5B(1)(b) the risk was genuinely insignificant, and that a reasonable person in the defendant’s position could not have taken the precaution because they did not know there was a risk and did not take precautions, and it was not unreasonable to have done so.

106. Counsel submitted (Transcript 120), addressing section 5B(2)(a), that the probability of harm occurring was extremely low because the table “had been there to be touched and dealt with and pulled upon by millions of people and over a million children, and nothing like that had ever happened”.

107. Counsel conceded (Transcript 120), addressing section 5B(2)(b), the likely seriousness of the harm in that if a table was pulled over onto a child, serious harm could occur.

108. Counsel conceded (Transcript 120), addressing section 5B(2)(c), that there was no particular burden to taking the suggested precautions.

109. Counsel conceded (Transcript 120), addressing s.5B(2)(d), that the defendant did not take any point that the social utility should be deployed somehow to the defendant’s advantage.

110. Counsel submitted (Transcript 120) that viewed prospectively when the objective evidence of Mr Young is given its full effect, what happened was “something of such a unique incident, literally unique”. Counsel submitted that “we’re dealing with high probabilities here. One in millions, at least with children, one in 1.2 million”.

The plaintiff’s (Lily’s) submissions in reply

111. In reply, counsel for the plaintiff referred to Waverley Council v Ferreira [2005] NSWCA 418 on the question of what needs to be foreseeable.

112. Counsel submitted that in the present case the risk that needed to be foreseen was children climbing up onto structures that potentially were not stable.

113. Counsel submitted that different considerations may well apply concerning the foreseeability of risk of harm to an adult and risk of harm to a child. Counsel submitted that the risk of harm where a child is involved may fall into the “not insignificant” risk category, when for an adult it may not.

F. DID THE COUNCIL BREACH ITS DUTY OF CARE? MY ANALYSIS AND FINDINGS

114. The first question is whether the risk of harm was foreseeable within the meaning of section 5B(1)(a).

115. The relevant risk of harm was the risk of harm to children who could climb or pull on a tall round table of the type used in the café which might topple onto them when doing so, causing them injury.

116. The plaintiff conceded that the defendant did not know of the risk. The question is whether the risk was foreseeable because the Council “ought to have known” (s.5B(1)(a)).

117. In my view the risk of harm was foreseeable because the Council ought to have known for the following reasons:

118. 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.

119. It was readily foreseeable in ordinary human experience that a falling table of that size and weight would likely generate considerable force, sufficient to cause injury to a child.

120. The Council knew that the Centre was used by families with young children. It knew that at least a quarter of the annual visitors to the Centre were children aged 12 and under. It knew that a significant proportion of the families and children that visited the Centre used the café and area in which the 4 tables were kept.

121. The Council knew that it was not uncommon for children to be moving around the café area, not necessarily under the direct eye of their parents, and sometimes left to their own devices. This was readily observable to the Council and its employees.

122. The Council knew, or ought to have known, that at 1.097 metres high, the table would have been taller than a good number of the children who visited the Centre.

123. The observations endorsed by the High Court about the general disposition and tendencies of children in 1953 remain as valid today as they were then. They were echoed in the ACCC’s references to children’s curiosity and lack of awareness of danger in 2018. They are ordinary aspects of human nature. The Council ought to have been aware that young children are very inquisitive and frequently mischievous by disposition. They are likely to meddle with whatever happens to come their way. The Council ought to have known that children’s curiosity and lack of awareness of danger places them at an increased risk of injury.

124. The precise sequence of events leading to the injury need not be foreseeable: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 336-337 [58]-[60] per Gummow J (Heydon J agreeing); Tapp per Gordon, Edelman & Gleeson JJ at [108]-[109].

125. Having regard to all of those matters, the risk of harm was not far-fetched or fanciful.

126. The next question is whether the risk of harm was “not insignificant” within the meaning of section 5B(1)(b).

127. The question of whether the risk of harm was “not insignificant” sets a slightly more demanding or slightly more onerous test than that the risk be real and not far-fetched or fanciful.

128. As counsel for Lily submitted, the ACCC articles cited by Mr Adams demonstrated that falling furniture can cause catastrophic outcomes for children in particular. As counsel also submitted, the risk of harm to children is likely to be higher than to adults. That is because children’s curiosity and lack of awareness of danger places them at an increased risk of injury.

129. The defendant relied heavily on Mr Young’s evidence about the fact, which I accept, that he was not aware of any prior incidents involving the tall tables and the fact, again which I accept, that he did not consider that the tables posed a risk to safety.

130. 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 café. Visitors who used the café 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 café weekly. Using that figure, over 52,000 people a year used the café 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 café 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.

131. Bruce v Apex Software Pty Ltd ta/s Lark Ellen Aged Care [2008] NSWCA 330, cited by the defendant, shows that the absence of any reported incidents or other complaints may be consistent with an assessment of the risk of harm as being insignificant. However, Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [20]-[25] (per Macfarlan JA; Giles JA agreeing) demonstrates that it may not be determinative. In Jandson Macfarlan JA quoted what was said in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 as applicable, “the weight that will attach to an accident-free history involves a question of fact to be determined in light of all the relevant circumstances (at 309)”.

132. Having regard to all of those matters, together with my reasons for finding that the risk of harm was foreseeable, I find also that the risk of harm was “not insignificant”.

133. The conditions in section 5B(1)(a) and (b) having been established, the question under section 5B then becomes whether a reasonable person in the position of the defendant would have taken the precautions that the plaintiff alleges should have been taken, considering the matters stated in section 5B(2) and anything else relevant.

134. The precautions that the plaintiff alleges should have been taken were to either affix the 4 tables to the ground (or floor) or to remove them altogether.

135. The probability that the harm would occur if care were not taken (s.5B2(a)) was not high bearing in mind Mr Young’s evidence of not being aware of any previous incidents. However, the weight to be given to Mr Young’s evidence is undermined by the considerations I mentioned earlier. Further, it should 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.

136. I accept the plaintiff’s submission that the likely seriousness of the harm (s.5B(2)(b)) was borne out by the nature of the injury sustained by Lily. In my view, there was potential for an injury to a child to be much worse than the injury suffered by Lily, considering the size and weight of the table relative to a child. The defendant conceded that serious harm could occur if a table was pulled over onto a child.

137. I also accept the plaintiff’s submission that there was no relevant burden placed on the defendant to take the suggested precautions (s.5B(2)(c)). The defendant conceded as much.

138. The plaintiff submitted that whilst the defendant undoubtedly was providing services which had a social utility, there was nothing in the nature of the activity that would preclude the defendant from having to take reasonable precautions in the circumstances (s.5B(2)(d)). The defendant conceded that it did not take any point that the social utility should be deployed somehow to its advantage. In light of those submissions, in my view no relevant considerations arise under section 5B(2)(d).

139. Having considered all of those matters, I find that a reasonable person in the defendant’s position would have taken the precautions of either affixing the 4 tables to the floor or to removing them altogether.

140. It follows that for all of those reasons I find that the defendant was negligent in failing to take those precautions. In other words, I find that it breached its duty of care to Lily.

G. CAUSATION

133. Causation must be determined in accordance with sections 5D and 5E.

134. Causation was not seriously put in issue.

135. I find that on the balance of probabilities the defendant’s negligence was a necessary condition of the occurrence of the injury to Lily. That is to say, Lily would not have been injured but for the defendant’s negligence.

136. It follows that I am satisfied Lily has established factual causation (s.5D(1)(a)).

137. As this is a case falling within an established class (occupier’s liability), I am satisfied that it is appropriate for the scope of the defendant’s liability to extend to the harm so caused (s.5D(1)(b)).

138. For those reasons I find that Lily’s injury was caused by the defendant’s negligence.

H. MY CONCLUSION ON LIABILITY

139. It follows, for all of those reasons, I find that the defendant is liable to pay damages to Lily for breach of its duty of care.

DAMAGES

140. As with liabilitiy, the underlying facts relating to damages were not in dispute.

Medical evidence and my observations regarding Lily’s scarring

141. Dr Michael J McGlynn OAM, Plastic, Reconstructive and Hand Surgeon, saw Lily on 2 August 2021 and provided a medico-legal report on 4 August 2021 at the request of her solicitors. At the time, Lily was 8 years old. Dr McGlynn reported that when he saw her, Lily was conscious of visible scarring across the upper forehead and anterior scalp; her mother styled her hair to cover the scarring; and the scarring attracted comments from others affecting her self-confidence. Dr McGlynn reported that on examination:

“There was a transverse curved scar 120 mm x 5 mm, running across the upper forehead at junction with anterior scalp. The lateral segments of scarring within the hairline. The central 80 mm on the upper forehead was covered by a short fringe of thin scalp hair and remained readily visible. Central up at forehead scar was readily visible. The scar was hypopigmented with distinct colour contrast, slightly indented, with no visible stitch marks and no adherence.

She had normal sensation of the anterior scalp above the scar.”

142. Dr McGlynn commented that Lily had visible scarring of forehead and anterior scalp causing disfigurement. He said that the scarring was due to the laceration sustained in the incident on 31 January 2020. He said that her prognosis was fair and that she had permanent visible scarring causing disfigurement. In his opinion the scarring was stable and unlikely to deteriorate in the future. He did not recommend any further surgical treatment for the scarring at that time. He expressed the opinion that the scarring would remain visible and she may seek further treatment when she is older. At that time it would be reasonable to discuss options for surgical scar revision with the aim of producing a less conspicuous narrower scar with better colour match. The best outcome would be scarring that was still visible. He estimated that the probable costs of surgical scar revision done at that time (August 2021) would be approximately $8000 including day surgery facility fee, surgical and anaesthetic fees.

143. Dr McGlynn included a photo of Lily’s scar with his report. He did not refer to the photo in the body of his report. I assume that it was taken in his rooms on the day of examination (2 August 2021).

144. At the invitation of the parties I looked at Lily’s scar myself during the course of the hearing (on 9 April 2025). As the transcript records (T45), I left the bench and sat on a chair to the side of the courtroom and Lily’s mother brought Lily over. Lily sat opposite me on a chair and Lily’s mother pulled Lily’s hair back over her head to show the full extent of the scar across the top of her forehead. Counsel for the defendant was also shown Lily’s scar from the same perspective.

145. Comparing my own observations in court with Dr McGlynn’s photo, the scar looked more prominent, that is to say more noticeable or easier to see, when I looked at it in court than appears from Dr McGlynn’s photo. That is possibly because the perspective from which the photo was taken and the perspective from which I observed the scar were different. The photo had been taken from an angled top-down view, whilst I looked at Lily’s face, forehead and scarring front on.

146. Associate Professor Peter Haertsch OAM, Plastic Surgeon, saw Lily on 29 June 2023 and provided a medico-legal report on 28 July 2023 at the request of the defendant’s solicitors. Associate Professor Haertsch reported his findings on examination as follows:

“Please see photograph attached below, there is a barely discernible scar in the anterior aspect of her forehead at the junction of the hairline. It is 12cm in length, it is soft, flat, white, non-tender and non-adherent to the under lying structures.”

147. Associate Professor Haertsch had been provided with a copy of Dr McGlynn’s report. He said he agreed “totally” with the report of Dr McGlynn and had “no issues” with it. He said he did not believe Lily will require any further treatment.

148. Comparing my own observations in court with Associate Professor Haertsch’s photo, the scar looked more prominent, that is to say more noticeable or easier to see, when I looked at it in court than appears from Associate Professor Haertsch’s photo. The difference is possibly explained by the perspective from which the photo was taken, the exposure setting of the camera or lighting in the room.

149. Having seen the scar myself, I would not describe it as “barely discernible”, as did Associate Professor Haertsch. Dr McGlynn described it as “readily visible” when he examined Lily. It was readily visible when I observed it in court and appeared to me to be quite prominent and noticeable.

Lily’s parents’ evidence: Mr Wunderwald

150. Mr Wunderwald, Lily’s father, is a music teacher. He and Lily’s mother own a tutoring centre business. They started the business in the year that Lily had her accident. Mr Wunderwald has a Bachelor of Music and a Bachelor of Teaching (Secondary Education). Mrs Wunderwald has a Bachelor of Education (Primary Education) and a Bachelor of Early Childhood Education.

151. On the day of the accident, Mr Wunderwald went with Lily in the ambulance to the hospital. In his words, Lily had “a massive gash that was all the way across and you could see her skull exposed”.

152. Mr Wunderwald observed that Lily was in constant pain and discomfort for a long time. She also had a loss of sensation that took years to resolve.

153. Mr Wunderwald said that before the accident Lily was a very high achiever in all of her results for kindergarten and preschool. Even at age 5 and 6 she was very articulate.

154. In the first 6 months after the accident, Mr Wunderwald observed that emotionally it was very difficult every day for Lily. She found it hard being withdrawn from normal activities with friends. She found it hard having the scar to look at and found it difficult putting up with the pain.

155. In order to protect her and allow the scar to heal in the best way possible, Mr and Mrs Wunderwald asked Lily not to go out in the sun.

156. Prior to the accident she did sporting activities, swimming, dancing and gymnastics. All of these activities stopped for a year and a half after the accident. Mr Wunderwald did not want to put her in a position where she could possibly bump her head whilst it was healing. She started returning to extracurricular activities at the end of year 2.

157. In 2021, Mr and Mrs Wunderwald were concerned that Lily was not performing well at school and may have been having problems with her memory. Their concerns led to Lily seeing Dr Natasha Fernandes and Professor Gary Browne. I refer to their reports below.

158. In late 2022 or early 2023 Mr Wunderwald sought psychological help for Lily. He asked his GP and she directed him to a program called “Cool Kids” run by Macquarie University. As at 11 December 2023, when Lily was assessed by Dr Mark Sabaz, Clinical Neuropsychologist, she just completed 8 weeks of self-guided treatment under the Cool Kids program. In his report of 22 December 2023, Dr Sabaz said the Cool Kids program was a research project being undertaken at Macquarie University. Lily was allocated to the self-guided treatment arm of the study whereby her parents received a package of instructive materials to guide them in providing psychological support to Lily.

159. I refer to the treatment and reports of Angel Lee Aube, Clinical Psychologist, later in these reasons. Mr Wunderwald gave evidence that he thought the sessions with Ms Aube were helpful in that Lily ended up back at school and quite happy.

160. When giving his evidence on 9 April 2025, Mr Wunderwald said that Lily had improved “a fair bit” in 2025. He said that she was very popular at school and had been voted school captain at Coogee Public School. He said that she involved herself in extracurricular activities. For example, she was part of the debating team. Even before becoming school captain she was part of the student council. She was always chosen to speak at school assemblies because she was one of the better speakers. She was very proactive in helping others and being part of the school. Mr Wunderwald said that Lily’s academic performance was “definitely improving”. Mr Wunderwald agreed that he believed that Lily’s performance at school was related to how she was feeling emotionally and that if there had been some times in the past where she had been struggling with anxiety and other issues, that affected her academic performance. Mr Wunderwald was concerned that Lily was going to be a teenager soon and she could well start worrying about her scars. He was concerned that someone may say something that sets her off and makes her feel really self-conscious. He said that they would most definitely seek out further psychological assistance if it was required in the future.

161. In cross-examination Mr Wunderwald agreed that he was very proud that Lily had become the school captain. He agreed that she had lots of friends and made friends easily. He agreed that she got on well with her siblings. He agreed that she went to parties and did normal things that children of her age do. He explained however that it was different whilst she was recovering. During that time she did not like big crowds and she did not like to go to her friend’s place where she might feel uncomfortable. Mr Wunderwald agreed that “now she’s good. She’s great”. Mr Wunderwald said that Lily played soccer now. He agreed that she was a very well-behaved child and obviously happy. Mr Wunderwald said that Lily played the piano and violin very well and she was very advanced. He said that she was confident to speak in front of people and was a very good speaker. He agreed that she had been elected by her schoolmates and some teachers to be a member of the school council.

Lily’s parents’ evidence: Mrs Wunderwald

162. When asked to give her observations of Lily before the accident, Mrs Wunderwald said that Lily was “Vibrant, smart, active, she was just a happy, happy go lucky girl. Like, she was just happy and smart, intelligent, you know, beautiful little girl.”.

163. Mrs Wunderwald then gave the following evidence:

“Q. How did it affect your daughter? Can I ask what you observed as a mother moving forward? You described her as confident and doing well. Did that change?

A. I, I personally believe that, yeah, it definitely did change her. Obviously immediately after the, the incident the, the trauma of it happening - she was obviously quiet and you know quite withdrawn and obviously because it was such a huge accident. But going - you know moving forward after that, I feel that she never kind of really - she never recovered from it. It was - it was – you know obviously after, after the accident we all had to be very careful with her. She, she had to stop swimming, she had to stop all, all activities because she had to be mindful of her head, and it just - just her spirit was - it was - it was just, you know - she just wasn’t the same child afterwards.

So that’s - you know, I think it - and then, you know when you go months and years after, you know, later on, I, I feel that, you know, not only did it affect her emotionally, you know, psychologically, academically too, because, you know, I - I’ve seen. I know firsthand how smart she was prior to the accident. I’m a teacher, you know, I’m a teacher. So, from a professional point of view I know what she was capable of. As a parent I know, you know, as - you know, as her mum I know how switched on she was, and, and just the potential she had.

She was just such a beautiful awesome girl who had, you know, everything ahead of her, and after the accident obviously things paused and, you know, obviously it affected her emotionally. But I also saw, like, in year 1, like her grades went down in year 1. She - in kindergarten she was at the top of her class. Her, her, her teacher actually said “Lily’s going to be prime minster one day.” She was just so switched on, you know. She was always on task doing everything right. She had top grades.

After the accident, just, you know, obviously due to the, the accident itself, you know, a few things were going on, but academically I feel that she - it never recovered. Like, she just - she just went, you know, it, it affected her. It affected her, her, her work, her concentration, yeah.”

164. Mrs Wunderwald thought that Angel Lee Aube (clinical psychologist) was really great for Lily and really did help her get through a few issues. Mrs Wunderwald explained that they took Lily to see Ms Aube because Lily just cried a lot and was quite sad; she felt quite emotional; she didn’t like going to school; in particular in year 4 she virtually cried every single day in term 1 and then progressively she got a little bit better.

165. As at the time of the hearing, Mrs Wunderwald thought that Lily had improved a lot emotionally and academically. She believed that emotionally it was going to take some time and that Lily was still going to have ups and downs.

166. When asked about her concerns for Lily’s future, Mrs Wunderwald said:

“A. Just, just that, having you know, having ongoing issues with, with you know her emotional control. So yeah, definitely, and, and also you know academically, obviously that's going to have significant impact on you know where she - like she's a bright child, she's just - it - yeah, it's, it's very disheartening to, to see what she was to - through, through this whole, whole experience, to see what she's like now. She's just had lots of hurdles and you know, lots of battles along the way, but she's you know she's getting through there with support.”

167. Mrs Wunderwald agreed that Lily wears her hair a particular way to try to hide the scar. She said that Lily went through a period where she was a bit embarrassed about it but she was not so self-conscious at the time of the hearing. However, Mrs Wunderwald feared that as Lily got older having the scar could be an issue. As she put it: “Cause she’s, she’s a girl, you know that’s – we all worry about these things, especially when she goes through puberty and everything.”.

Additional medical evidence

168. According to the clinical records of Lily’s GP, Dr Salwa Kyrillos:

169. On 3 February 2020: Lily complained of headache. The family was concerned about scarring. Dr Kyrillos discussed the matter with them and provided counselling.

170. On 12 May 2020: Dr Kyrillos provided Lily with advice on scar management.

171. On 14 July 2020: Lily complained of pain around the scar area. Dr Kyrillos provided her with advice on scar management.

172. On 13 August 2020: Lily complained of recurrent headache and nightmares. Dr Kyrillos recorded “post traumatic headache”.

173. On 13 October 2020: Dr Kyrillos recorded “Hair loss on the scar. Discuss with parents surgical correction of the scar.”.

174. On 4 December 2020: Dr Kyrillos recorded “Recurrent headache. Difficult initiating sleep. Counselling.”.

175. On 19 January 2021: Dr Kyrillos noted “improving headache” and “healing scar”.

176. On 1 February 2021: Dr Kyrillos recorded

“PERSISTENT HEAD SCAR

LILY CONCERNED ABOUT THE LOOK

LOSS OF HAIR AT SCAR LINE

PERSISTENT DIFFICULTY INITIATING SLEEP

HEADACHE IS MORE WHEN SHE IS SICK

NIL NIGHT MARES

PARENTS ARE DISTRESSED ABOUT SCAR ON LONG-TERM

ADVICE ON COUNSELLING TECHNIQUE FOR SLEEP

ALSO CONCERNED ABOUT HER ACADEMIC PERFORMANCE”

169. Lily saw Dr Natasha Fernandes, physician, in the Child Development Clinic in Clarence Street Sydney on 29 July 2021 for an assessment of her general cognitive and learning skills. At this time, Lily was assessed by Helen Myung, a “Provisional Psychologist” whose psychometric report was reviewed by Amber Takhar-Stapleton, a Registered Psychologist.

170. Dr Fernandes referred Lily to Professor Gary Browne at the Children’s Hospital Westmead. In her letter of referral dated 6 August 2021 to Professor Browne, Dr Fernandes set out the reasons for Lily’s assessment:

“Lily presented for an assessment of her general cognitive and learning skills. Her parents have been concerned that after a traumatic head injury that Lily sustained in February of 2020, they have noted a decline in her learning capabilities in the classroom.

…

Lily attends … and is in year 2 this year.

In kindergarten, Lily was well above average compared to her peers academically and was very much involved in extracurricular activities as well. Since the injury and the beginning of last year, there was a decline academically in year one with Lily now falling within the average range. She also can present to be much less attentive at times in class and can also often demonstrate word finding difficulties during verbal conversation with family and at school.

She is noted to have some mild features of inattention, again after the injury with more repetitions of daily instructions required.”

171. Dr Fernandes asked Professor Browne to review Lily with regards to her learning decline and mild features of inattention that had been noted by her parents and teachers, and if this may be in relation to her head injury.

172. Professor Browne assessed Lily on 7 September 2021 and reported back to Dr Fernandes on the same day. Professor Browne is a Paediatric Sports and Exercise Physician. He saw Lily accompanied by her parents via Telehealth in the Complex Concussion Clinic. In his report to Dr Natasha Fernandes, Professor Browne said that Lily was bright and alert and showed no concussion deficits on formal testing. His impression was that Lily was suffering “post-traumatic stress further exacerbated by lockdown”. He said “We have given Lily a self-care routine and she is clearly in a safe nurturing family environment. We do think that once out of lock down and Lily can socialise F2F and that most if not all of these issues will resolve.”. He advised that should Lily’s parents have any ongoing concerns, then he strongly suggested referral to a psychologist or the local MH team for appropriate support.

173. Lily saw Dr Mark Sabaz, Clinical Neuropsychologist, with her father on 11 December 2023. Dr Sabaz provided a report to Lily’s solicitors on 22 December 2023. She was then 10 and a half years old. Dr Sabaz performed a detailed neuropsychological assessment of Lily which included interviewing her with Mr Wunderwald, performing psychometric testing and analysing her pre and post accident school reports. He also compared his findings with the psychometric testing carried out in July 2021.

174. In reviewing Lily’s school reports, Dr Sabaz said it was noted in the general comment at the end of Lily’s year in kindergarten that Lily was a cheerful, confident, motivated and collaborative learner with strong communication skills, although it was noted that she had been demonstrating a weakness and was working on her organisational skills. Lily had just started year one at the time of her accident. Lily had a high rate of absence from school in Year 1 Semester 1 – 14 full days absent and 15 partial days absent. Dr Sabaz noted that Lily’s teacher in Year 1 Semester 1 described her as an enthusiastic and conscientious learner who was “gradually developing the confidence to make contributions”. Dr Sabaz commented that this was quite different to kindergarten when she was described as a confident learner with a “can do attitude”. In Year 1 Semester 2, Lily appeared to have returned to achieving above expected grades generally. Dr Sabaz commented that her confidence appeared to have rebounded. In Year 2 Semester 1 Lily’s grades were again generally high and teacher comments were glowing. In Year 2 Semester 2, learning took place at home during the Covid-19 pandemic and an abbreviated school report was supplied for the key learning areas of English and mathematics. Lily achieved a mixture of grades for her learning outcomes in these subjects, graded either working above or achieving learning outcomes. Thereafter from Year 3 Semester 1 to Year 4 Semester 1, Lily’s grades generally reflected achievement at sound levels, with the occasional high or outstanding grade awarded. Teacher comments remained consistently positive in relation to her learning, academic and social interactions at school.

175. In addressing the history given to him when interviewing Lily and her father, Dr Sabaz said that Lily returned to swimming after the accident, but did not engage to the same degree as she had in the past. There were other sports she wanted to engage in such as gymnastics, but was not permitted to do so for 2 years after the accident in order to allow the scar to heal properly. She was also not permitted to play in the sun with other children at school for the same reason. Instead, Lily sat in the shade at school, restricted from engaging in the other activities of the playground. She sat in the shade with 2 other friends. This restriction was reported to bother her a lot. Lily also developed anxieties about objects falling on her. Her sleep was affected for about 1.5 years after the accident, needing to be cradled to sleep because of her anxieties. As at the time of the interview she was generally able to sleep on her own, although she would occasionally still wake and go to her parents’ bed to sleep. Mr Wunderwald described that on the approach to the end of 2022 and particularly during the first half of 2023, Lily was experiencing significant anxieties about going to school. She would often cry, find it difficult to separate from her parents and she would have panic attacks, impeding her independent functioning.

176. Dr Sabaz said that at the time of his assessment (December 2023), Lily had just completed the 8 weeks of self-guided treatment under the Macquarie University Cool Kids Program. Mr Wunderwald reported that Lily had made significant gains with the self-guided therapy. The issues with anxiety, crying, panic and school avoidance noted earlier in 2023 had “now improved”. Mr Wunderwald also told Dr Sabaz that he felt Lily’s academic functioning had bounced back and she was once again doing quite well academically. Mr Wunderwald told Dr Sabaz that he did not “now notice” any problems with Lily’s attention, memory nor capacity for solving problems.

177. Towards the end of his report, under the heading “Impressions”, Dr Sabaz said that the psychometric testing undertaken as part of his neuropsychological assessment found Lily was “of very high (superior) intellectual ability”. He said that Lily’s intellectual ability “was found to be stronger (superior) on the current assessment compared to an assessment in 2021 (high average)”. He said that it was not likely the improvement was due to a measurement error and a possible explanation was that in 2021 Lily was more affected by anxiety and emotional distress, which is known to have suppressive effects on psychometric test performance.

178. Dr Sabaz said that it is always challenging to get a precise sense of a child’s academic level from school reports because these reports are ultimately not recognised as standardised indicators of academic performance. Nonetheless, Lily’s school reports do suggest that she is not consistently maintaining high grades within the context of having superior intellectual ability, which can be understood as reflecting her academic potential. A possible cause of this may be the interfering effects of pain/discomfort initially and emotional distress later that Lily experienced following the head injury sustained on 31 January 2020. These aspects of her post head injury function have contributed to periods of high school absence.

179. Dr Sabaz ended his report by saying that Lily would benefit from engaging with a clinical psychologist when there are indicators of apprehension, anxiety, worry or increased stress that is not responding to support being provided by her parents or teachers. He recommended that Lily have a bank of 16 therapy sessions available to engage with a clinical psychologist during such periods.

180. In July, August and September 2024 Lily saw Angel Lee Aube, Clinical Psychologist, on 5 separate occasions for treatment. Ms Aube saw Lily’s parents without Lily on a further occasion. Ms Aube provided 2 reports concerning her treatment. The initial reason for seeing Lily was that she was having significant difficulties falling asleep on Sunday nights and would stay up hours past her bedtime and required her parents presence or assistance to fall asleep. Lily told Ms Aube that this was because she was anxious about going to school. Sleeping problems were not present during school holidays or when Lily was not expected to go to school. Mr Wunderwald asked Ms Aube to work with Lily to provide her with strategies to help understand and manage her emotions and worries, so that she could return to falling asleep without parental assistance. Mr Wunderwald also asked Ms Aube to explore with Lily whether there were any emotional or anxiety issues that were affecting her learning.

181. In her report dated 9 August 2024, provided after the first 3 sessions of treatment, Ms Aube said that Lily was reporting symptoms of anxiety and stress-related responses, specifically about attending school. In Ms Aube’s opinion, the severity and pervasiveness of Lily symptoms did not meet the diagnostic threshold of a psychological disorder at that time. She said that some worries about attending school can be considered developmentally normal. She said that Lily’s accident and subsequent adverse consequences in the years following provided important context for her then current perceptions and experience at school. Ms Aube was of the opinion that it was important for Lily to receive appropriate treatment for her anxiety symptoms to ensure that they did not get worse. Ms Aube’s prognosis was that “Lily presents with a number of protective factors that bode well for improvement if the appropriate supports are in place. Lily is cognitively sound; she is highly verbal and expressive. She has a supportive family, her education and living circumstances are currently stable. Lily is keen to engage in therapy and over the sessions we had together she and Shannon has reported some improvements in her symptoms. I am hopeful that with ongoing psychological support, Lily and her family can be equipped with skills to manage school and life stress.”.

182. Asked in a report of 9 August 2024 whether Lily’s psychological injuries had stabilised, Ms Aube said “Recovery from psychological distress stemming from a traumatic event (such as the accident in Lily's case) is often not linear, and she has experienced a return of emotional distress in recent months that has not responded sufficiently to support provided by her parents and school. This indicates that Lily's psychological injuries has not stabilised and needs additional professional support. … It is my opinion that Lily will benefit from ongoing psychological therapy in line with what was recommended in the neuropsychological assessment provided by Dr Sabaz dated December 2023.”

183. Ms Aube provided an updated treatment report on 2 December 2024. When Ms Aube saw Mr and Mrs Wunderwald without Lily on 19 August 2024, they reported that Lily had made significant improvements, was going to sleep without assistance and had been happy with school. When Ms Aube saw Lily and her mother on 30 September 2024, Mrs Wunderwald reported a further stabilisation of mood and anxiety, and gave the example of how Lily overcame initial anxiety to participate in a public speaking competition at school. Ms Aube agreed that given the progress, regular sessions may not be needed. Ms Aube said in her report: “It would appear that Lily has made significant progress in learning to manage her anxiety and stress. Lily’s parents have also been provided with strategies to manage symptoms should they arise.”. As to whether Lily’s psychological injuries had stabilised, Ms Aube said “I believe that Lily’s psychological injuries resulting from the accident are stabilised at present.”. As for future treatment, Ms Aube recommended that Lily and her parents attend psychological therapy sessions as needed.

NON-ECONOMIC LOSS

184. Lily seeks damages for non-economic loss assessed at 28% of a most extreme case. The defendant submitted that they should be allowed at 16%.

185. Damages for non-economic loss are to be assessed in accordance with Part 2 Division 3 of the Civil Liability Act, 2002. That is to say, they are to be assessed in accordance with sections 16, 17 and 17A.

186. Non-economic loss is defined in s.3. It means any one or more of the following – (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement. These are all heads of damage known to the common law.

187. There is no suggestion that Lily’s injuries have caused a loss of expectation of life. Her non-economic loss encompasses pain and suffering, loss of amenities of life and disfigurement.

188. The amount of damages for pain and suffering is not to be reduced because the plaintiff bore the pain bravely, or has no present recollection of it: H Luntz and S Harder Assessment of Damages for Personal Injury and Death (5th ed., 2021, LexisNexis) at [3.2.3]. The sum awarded must take account of pain and suffering already undergone and to be undergone by the plaintiff in the future: Luntz at [3.2.3].

189. Luntz describes “loss of amenities” as follows, at [3.3.1] omitting footnotes:

“‘Loss of amenities’ is the name ‘commonly and conveniently (but not ... very happily)’ given to the non-economic consequences of the destruction or diminution, permanent or temporary, of a faculty, which deprives the injured person ‘of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer’. It invites a comparison between the plaintiff’s ability to enjoy life before and after the injury. Thus, damage of this sort is also sometimes called ‘loss of enjoyment of life’. The award under this head is usually encompassed in the general damages for pain and suffering and in the ordinary case there is no need to distinguish this loss from pain and suffering as such. Indeed, it may be improper to make a separate award under this head.”

190. The note to section 16 sets out the 3 steps required to be followed in the assessment of economic loss in accordance with section. Step one is to determine the severity of the claimant’s non-economic loss as a proportion of a most extreme case. The proportion should be expressed as a percentage. Step 2 is to confirm the maximum amount that may be awarded under the section for non-economic loss in a most extreme case. This amount is indexed each year under section 17. Step 3 is to use the Table included in section 16 to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under the section for non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table.

191. The general principles to be applied in undertaking that process are identified in Stanberg v State of New South Wales [2025] NSWCA 127 at [112]—[114] per Griffiths AJA (Mitchelmore & McHugh JJA agreeing).

Other decisions

192. Section 17A provides that the court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings and for that purpose the parties may bring the court’s attention to the awards of damages for non-economic loss in those earlier decisions.

193. The defendant submitted the decisions of the Court of Appeal in Kurrie v Azouri (1998) 28 MVR 406 and Doubleday and Anor v Kelly [2005] NSWCA 151 provided relevant guidance. The plaintiff did not point to any cases.

194. I drew the parties’ attention to the decision of the Court of Appeal in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 and invited their submissions.

195. In Kurrie, the plaintiff was injured in a car accident when she was 10 years old. By the time of the hearing before the primary judge she was 13. Shepherd AJA described the principal injury as a severe laceration to her lower right leg which had left her with permanent scarring. The scar was a prominent stretched scar roughly in the shape of the “7”. It was on the front of her right leg, commenced just below the knee and extended a considerable distance down the leg. The horizontal arm was 8 cm in length and an average of 5 centimetres wide. The vertical part of the scar was 10 cm long tapering in width from 1.8 cm at the angle with the horizontal arm to 4 mm at its lowest extremity close to both the scar edges layer series of fine but visible suture marks. The primary judge assessed the plaintiff’s non-economic loss as 29% of a most extreme case. Shepherd AJA (with whom Beazley JA agreed) considered that this was too high and the primary judge had fallen into error. Shepherd AJA said that he had the greatest difficulty in selecting any percentage other than one ranging between the 15% threshold and 20% and concluded that 18% was the appropriate percentage.

196. In Doubleday, the plaintiff was 7 years old when she suffered a supra-condylar fracture of the right humerus with associated damage to the right medial nerve and right brachial artery. By the time of the hearing before the primary judge she was 13. The injury caused her to lose sensation in the thumb, index and middle fingers of her right hand, to have pins and needles in them and to lose strength in her hand as a result. These changes were regarded as permanent. The primary judge assessed her non-economic loss at 28% of a most extreme case. On appeal this was reduced to 20%.

197. In Chen, the plaintiff had just turned six years old at the time she was injured. She was eight at the time of trial. The injury occurred when she ran into a clothing rack at a Kmart store in Chatswood. She suffered a severe injury to her right eyelid. It was almost torn off. The hospital record on her admission records that her eyelid was hanging by a small piece of skin on the outermost side of her eye. Her eyelid was expertly repaired and she was left with what one doctor (Dr Michael Delaney, ophthalmic surgeon) described as a “very mild impairment due to the small amount of ptosis and the very small scar on the right eyelid”. She did not suffer any ongoing damage to her vision. Ptosis refers to a droopy eye. The primary judge assessed non-economic loss at 25% of a most extreme case. The plaintiff’s appeal, seeking to have that assessment increased, was dismissed.

The parties’ submissions

198. The defendant submitted that Lily suffered a 10-centimetre laceration to her forehead. (I note that this is not correct. Both Dr McGlynn and Associate Professor Haertsch measured the scar as being 12 cm long.)

199. The defendant submitted that the scarring is very high up on Lily’s forehead and close to her hairline; while it is unwelcome, the positioning of the scar is fortuitous because it will be rarely seen throughout the course of her life. The defendant submitted that the scarring is quite stable and unlikely to deteriorate in future, and surgery is not recommended.

200. The defendant referred to the psychometric report of Helen Myung, “Provisional Psychologist” dated 12 August 2021 reviewed by Amber Takhar-Stapleton, Registered Psychologist and quoted from p.6. What Ms Myung and Ms Takhar-Stapleton had said there was: “Based on Lily’s history, assessment results, and observations made at the Child Development Clinic, it is understood that Lily’s current presentation does not meet the criteria for any diagnosis based on DSM-5. However, it was recommended to take further assessment at the Children’s Hospital Institute of Sports Medicine (CHISM) to investigate the impact of her previous head injury.”.

201. The defendant also referred to the fact that in her report of 9 August 2024 Angel Lee Aube, Clinical Psychologist, said that in her opinion “the severity and pervasiveness of Lily's symptoms do not presently meet the diagnostic threshold of a psychological disorder”.

202. Regarding the decision in Kurrie, in oral submissions, counsel for the defendant submitted that the relevant aspects of that case were that it was a young girl who was a little bit older than the plaintiff at the time of the accident, but she suffered “a really awful scar”, which was on her leg. Counsel referred to the graphic description of the scarring in the judgment, in the shape the numeral 7. Counsel submitted that it was rough and “it was a really embarrassing place for a young girl to have a scar”. Counsel submitted that in that case the plaintiff also had a secondary psychiatric condition because of it. Counsel submitted that in Kurrie the plaintiff was “more significantly injured” than Lily and that there the Court of Appeal found her most extreme case to be 18%, and on that basis a fair valuation of Lily’s injuries would be 16% of a most extreme case. In the supplementary written submissions, counsel submitted, somewhat contradictorily, that Lily’s injuries were “much closer to the injuries sustained by the plaintiff in Kurrie”, after referring to Chen.

203. Regarding the decision in Chen, in supplementary written submissions counsel for the defendant submitted that at the time of the trial, the plaintiff in Chen was suffering from “persistent pain”. She also suffered a significant psychological injury which was “at the threshold of a formal psychiatric diagnosis of adjustment disorder”. The plaintiff in Chen faced further surgery. The scarring in Chen was to the young plaintiff’s face (eyelid) and could not be hidden by hairstyling as in the case of Lily. The injury also caused “slight droop to her right eye”. She had also undergone “remedial ophthalmic surgeries”. Counsel submitted that while the Court of Appeal did not consider the appellant had established House v The King error White JA commented: “Indeed, I would regard the assessment of 25% of a most extreme case as being somewhat generous to the applicant”.

204. The plaintiff submitted, in supplementary written submissions, that the salient features of the decision in Chen were that it involved a child who was in year 3 at the time of the judgment and sustained her injury in January before she started year one at school. The injury concerned a scar over her right eye which was described by Dr McGlynn, consistent with the trial judge’s observations as follows: “A full thickness transverse tear of the right upper eye lid detaching it save for a narrow lateral attachment, and a division of the upper eye lid tear duct.". The Plaintiff was left with two horizontal scars separated by 5mm which extended 2/3 of the way across the eye lid and a 15mm scar which ran obliquely in the mid upper lid region. Two of the scars were visible with the eye open although one covered by eye lashes. The scars were lighter in colour than the surrounding skin. The scarring was described by His Honour as "hairline" but observable to a person 1 metre away from the child. His Honour thought the scars may have been discernible to someone in normal conversation with the Plaintiff.

205. Counsel submitted that the scarring sustained by Lily is far more extensive than the eye lid scarring sustained by Ms Chen. Lily's scar extended across the top of her forehead and could not be described as hairline. The scars were observed in Court allowing the Court to form an impression of the nature of the scars. Counsel submitted that the scars are significant and would be more observable and significant than scarring to the eyelid due to the prominence and size. In those circumstances taking into account the psychological sequelae outlined in the medical evidence the submission of 28% of a most extreme case is maintained.

Discussion and findings

206. In determining the severity of Lily’s non-economic loss as a proportion of a most extreme case, I have had regard to the reports of Dr McGlynn and Associate Professor Haertsch (which I summarised above), my own observations of Lily’s scar (which I noted when referring to those reports), the unchallenged evidence of both Mr and Mrs Wunderwald about the immediate and lasting impacts of the injury on Lily, particularly on her emotional well-being and difficulties adjusting to her new circumstances, the additional medical evidence (which I summarised above) and the parties’ submissions (which I also summarised above).

207. Without being exhaustive, some particularly relevant considerations in my view are:

208. Lily’s scar is permanent. It won’t go away. Even if she chooses to have surgery, Dr McGlynn said that the “best outcome would be scarring that was still visible”. To date, Lily has had to learn to live with it as best she can. That will remain the case into the future.

209. Lily is only 12 years old. She has a long life ahead of her. A 12 year old female has a life expectancy of 73.44 years according to the Australian Life Tables 2021-2023 published by the Australian Bureau of Statistics. Lily’s damages must be assessed now, once and for all, for the past and for the future.

210. Both Dr McGlynn and Associate Professor Haertsch measured the scar as being 12 cm long. It is not 10 cm as counsel for the defendant submitted.

211. Lily’s scar is in a place where she herself will see it every day when she looks in the mirror.

212. It is in a place where other people will notice it from time to time and make comment or perhaps make her feel awkward or embarrassed, even if she can and does choose to cover it with the fringe of her hair.

213. There will be periods during her life and occasions on which she will be more sensitive to her own appearance, as will other people around her. The evidence demonstrates that her sensitivities about her scarring have already had practical consequences – she has suffered embarrassment, she has avoided going to school, she has had trouble sleeping, she has suffered anxiety, she has suffered a lack of confidence. Whilst many of these effects had abated or been reduced by the time of the hearing, ordinary human experience suggests that she is most unlikely to pass through life without the same or similar consequences arising again from time to time. Lily’s experience since the accident already demonstrates this – an example is provided by the need for treatment by Ms Aube in 2024 (see paragraph 182 above) - and is confirmed by Mrs Wunderwald who said that “She's just had lots of hurdles and you know, lots of battles along the way, but she's you know she's getting through there with support.”. I share Lily’s mother’s view that Lily is still going to have ups and downs into the future. Those up and downs are likely to affect her emotional and mental equilibrium and wellbeing from time to time.

214. As for comparing Lily with the plaintiffs in Kurrie and Chen, I do not consider that Kurrie provides a relevant comparison because of the position of the scar. A scar on a young person’s leg is quite a different proposition to a scar on their forehead. Of the 2 cases, in my view Lily’s situation comes much closer to the plaintiff in Chen than to Kurrie.

215. Having regard to all of those matters and in all the circumstances I accept the plaintiff’s submission and determine the severity of Lily’s non-economic loss at 28% of a most extreme case.

216. The maximum amount that may be awarded under s.16 for non-economic loss in a most extreme case is $804,000 as of 1 October 2025: Civil Liability (Non-economic Loss) Order 2010.

217. According to the table in s.16, where the severity of the non-economic loss is 28% of a most extreme case, damages for non-economic loss may be awarded at 14% of a most extreme case.

218. 14% of $804,000 is $112,560. Under s.16(4) this sum is to be rounded to the nearest $500, that is to say, to $112,500.

219. For all of those reasons I find that Lily is entitled to $112,500 as damages for non-economic loss.

PAST OUT-OF-POCKET EXPENSES

214. In her schedule of damages (Court Book p.293), Lily claimed past out-of-pocket expenses “to be agreed”.

215. I was not informed of any agreement or provided with evidence of past out-of-pocket expenses. I therefore make no allowance for them.

FUTURE OUT-OF-POCKET EXPENSES

216. Lily sought damages for future out-of-pocket expenses for the cost of psychological counselling and scar revision surgery in the future. In her schedule of damages, she sought $12,800 under this head.

217. The defendant allowed “$Nil” for future out-of-pocket expenses in its Schedule of Damages (Court Book p.296).

218. In his report of 22 December 2023, Dr Mark Sabaz said:

“Children in remission from psychological (emotional) disorders are at risk and may experience a return of emotional distress that can interfere with function. This can be seen in situations that act as reminder of past trauma or situations that are perceived as stressful or challenging (e.g., transition to high school). Lily would benefit from engaging with a clinical psychologist when there are indicators of apprehension, anxiety, worry or increased stress that is not responding to support being provided by her parents or teachers. I recommend that Lily has a bank of 16 therapy sessions available to engage with a clinical psychologist during such periods.”

219. In the same report Dr Sabaz said that the cost of clinical psychology sessions based on the Australian Psychological Society recommended fee schedule at the time of his report was $300 per 50-minutes. On that basis he said that a bank of 16 sessions will cost $4,800.

220. In her report of 9 August 2024, Ms Aube agreed that Lily will benefit from ongoing psychological therapy in line with that recommended by Dr Sabaz. In her report of 2 December 2024, Ms Aube said that she would recommend that Lily and her parents attend psychological therapy sessions as needed.

221. Neither Dr Sabaz’s nor Ms Aube’s evidence was challenged by the defendant.

222. I therefore allow $4,800 for future psychological therapy.

223. In his report of 4 August 2021, Dr McGlynn said:

“I do not recommend any further surgical treatment for the scarring at the present time. The scarring will remain visible and she may seek further treatment when she is older. At that time it would be reasonable to discuss options for surgical scar revision with the aim of producing a less conspicuous narrower scar with better colour match. The best outcome would be scarring that was still visible. The probable cost of surgical scar revision done now would be approximately $8000 including day surgery facility fee, surgical and anaesthetic fees.”

224. In his report of 28 July 2023, Associate Professor Haertsch said he agreed totally with the report of Dr McGlynn and had no issues with it but somewhat paradoxically said he did not believe Lily will require any further treatment.

225. In my view Lily is quite likely to seek treatment when she is older along the lines suggested by Dr McGlynn.

226. I will allow $8,000 for future surgical treatment of the scar.

227. The total I allow for future out-of-pocket expenses is therefore $12,800.

PAST ECONOMIC LOSS

228. Lily makes no claim for past economic loss.

FUTURE ECONOMIC LOSS

229. Lily seeks a buffer of $50,000 inclusive of superannuation to represent a diminution of earning capacity on the open labour market due to her physical and psychological injuries.

The parties’ submissions

230. Counsel for Lily submits that in the circumstances of the case damages are recoverable for a loss of capacity to earn income. It is not in issue that the court may award a buffer for future economic loss in circumstances where the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. Counsel submits this is such a case. Counsel submits that Lily seeks only a modest award as compensation for the chance that she may be disadvantaged in the future because of her injury.

231. Counsel submitted that such an allowance is permissible pursuant to section 13 of the Civil Liability Act 2002, citing Penrith City Council v Parks [2004] NSWCA 201 per McClellan AJA at [58].

232. Section 13 provides that the 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. 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. 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.

233. The defendant opposes this part of Lily’s claim.

234. The defendant submitted in Lily’s case there is no recognised psychiatric disorder. The defendant submitted that there is no evidence of any kind that Lily is vulnerable on the open labour market. Counsel submitted that there is therefore no evidentiary basis for the awarding of a buffer. Counsel submitted that in the absence of evidence, any economic loss awarded would overcompensate Lily.

235. Finally, before the court can award any such buffer it must be satisfied that the requirements of section 13 are made out. The plaintiff has made no submissions as to the relevant “assumptions” of the court should make, counsel submitted that viewed through the lens of section 13, it is not open to the court to award any future economic loss damages to the plaintiff.

The relevant legal principles

236. The relevant legal principles regarding the assessment of future economic loss by way of a buffer or cushion for children, including the consideration of section 13, are discussed in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96, particularly at [38], [41]-[44] and [48]-[49] per White JA (Griffiths AJA and Weinstein J agreeing) and in Stanberg v State of New South Wales [2025] NSWCA 127 at [96]-[101] per Griffiths AJA (Mitchelmore and McHugh JJA agreeing.

Discussion and findings

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.

SUMMARY OF DAMAGES

243. In summary, I have determined that Lily is entitled to the following:

244. $112,500 for non-economic loss;

245. $12,800 for future out-of-pocket expenses; and

246. $50,000 for future economic loss.

247. The total is $175,300. Lily is entitled to judgment against the defendant in that amount.

J. ORDERS

245. Because Lily is under 18 years of age, and therefore a person under legal incapacity, the money recovered in these proceedings on her behalf must be paid in accordance with section 77 of the Civil Procedure Act 2005 (NSW).

246. The default position under section 77 is that all money recovered be paid into court in the first instance. As neither party sought a different order, I will order that the judgment sum be paid into court to await further order.

247. Costs should follow the event.

248. For those reasons I make the followings orders:

249. Judgment for the plaintiff in the sum of $175,300.

250. Order pursuant to section 77 of the Civil Procedure Act 2005 (NSW) that the judgment sum be paid into court to await further order.

251. Defendant to pay the plaintiff’s costs.

**********