Court of Appeal considers risk of harm and award for future economic loss in claim involving minor

Randwick City Council v Wunderwald [2026] NSWCA 116  

The Plaintiff, by her tutor, brought a claim for damages against the Defendant for the injuries she suffered at a café that formed part of a leisure centre occupied and operated by the Defendant. 

The Plaintiff, who was six and a half years old, approached a round table of approximately the same height. Using her hands, the Plaintiff applied her weight to the edge of the table causing it to fall and cut her forehead. The Plaintiff required surgery and was left with a scar.

The Plaintiff relied on the evidence of Neil Adams, an expert in ergonomics and safety management. Mr Adams concluded that the table could topple over with very modest levels of horizontal force.

The Defendant did not obtain evidence in reply and Mr Adams’ opinion was accepted by the primary judge who awarded the Plaintiff $175,300 in damages including a buffer of $50,000 for future economic loss.

On appeal, the Defendant accepted that it owed the Plaintiff a duty of care.

The Court of Appeal upheld the primary judge’s decision that the risk of harm was not insignificant for the purposes of s 5B(1)(b) of the Civil Liability Act 2002 (NSW) (CLA). In so finding, the Court considered the unchallenged evidence of Mr Adams of the inherent instability of the table and that it was in a café where many thousands of children would potentially interact with it. The Court held that the primary judge did not err in concluding that the risk of the table falling onto a child satisfied the undemanding test in s 5B(1)(b).

In relation to the taking of precautions to avoid a risk of harm, s 5C(a) of the CLA requires the court to have regard to the burden of taking precautions to avoid ‘similar’ risks of harm. The Defendant argued that s 5C(a) requires them to consider the risk posed by other items of furniture in the café, including low tables and stools and the risk of a child climbing and jumping off furniture, causing themselves injury.

The Court rejected the Defendant’s argument on the basis that s 5C(a) requires regard to be had to ‘similar’ risks of harm as that which is the focus of the inquiries demanded by s 5B.

The ‘risk of harm’ for the purposes of s 5B requires attention to be given to the essential circumstances that presented the danger and in respect of which a reasonable person would take precautions. In this case, the essential aspect was the risk presented by heavy and unstable furniture falling on a child. The possibility of children falling off furniture at the café was not similar to the risk of a child being injured by falling furniture.

In relation to the award of a buffer of $50,000 for future economic loss, the primary judge relied on the assumptions that the scarring may put the Plaintiff at a disadvantage on the open labour market and her psychological condition may require her to take time off from work and lead to financial loss.

The Court found that there was no evidence to support these assumptions. Of significance, no investigations had been undertaken on behalf of the Plaintiff of the sorts of employment that might place the Plaintiff at a disadvantage, nor any analysis of how that disadvantage might manifest or the percentage possibility of these events occurring. Further, the Plaintiff’s psychological condition had stabilised.

The Court held that the buffer was a figure plucked out of the air and no aspect of the primary judge’s reasons supported the award of $50,000 as opposed to any other amount.

The fact that the award was said to be modest, did not bear on the exercise required to be undertaken by s 13 of the CLA in granting an award for future economic loss. It was determined that on the evidence, the most likely outcome is that the Plaintiff will not suffer financial loss as a consequence of her injury.

The decision is a reminder of the importance of the proper characterisation of the ‘risk of harm’ for the purposes of ss 5B and 5C of the CLA with attention to be given to the true source of potential injury.

The decision is also a reminder of the importance of Plaintiff’s satisfying the requirements of s 13 of the CLA in making a claim for future economic loss. It is not enough for a Plaintiff to hypothesise some loss of future earning capacity such that a buffer should automatically be awarded. The Plaintiff is required to adduce evidence to support the assumptions about their future loss of earning capacity.