Background
On 31 January 2020, Lily Wunderwald, then six and a half years old, was seriously injured in the café of Des Renford Leisure Centre at Maroubra — a facility occupied and operated by Randwick City Council. After a swimming lesson, Lily wandered from her family’s table and approached a tall, free-standing café table: a circular wooden top mounted on a metal pole and base, approximately as tall as she was. She grabbed the edge of the table, applied her weight to it, and the table toppled, falling directly on top of her. The edge of the wooden top collided with her head, cutting her forehead open to the bone. She was hospitalised and required surgical repair under general anaesthesia; she will carry the scar for life. The entire incident was captured on CCTV.
Lily, by her tutor, sued the Council in the District Court of New South Wales. The plaintiff’s liability expert, Mr Neil Adams, gave unchallenged evidence that the table could be rendered unstable with the application of “very modest levels of horizontal force,” and that if proactively assessed it would have been categorised as imposing intolerable levels of risk on users. The Council adduced no contrary expert evidence and made no challenge at trial to Mr Adams’ core conclusions. The primary judge (Waugh SC DCJ) found the Council negligent and awarded $175,300 in damages, including $50,000 for future economic loss on the basis that the permanent forehead scarring might disadvantage Lily in the labour market or cause anxiety leading to reduced working hours.
The Council appealed on three grounds: (1) the risk was not “not insignificant” under s 5B(1)(b) of the Civil Liability Act 2002 (NSW) given six or seven years without incident; (2) a reasonable person would not have bolted down or removed the tables when regard was had under s 5C(a) to the burden of avoiding “similar risks” from all café furniture; and (3) the $50,000 future economic loss award lacked an evidentiary foundation.
The Court’s Holding
The Court of Appeal (Leeming JA, with Stern and Ball JJA agreeing) dismissed the first two grounds and allowed the appeal only on damages. On ground 1, the Court held that the unchallenged expert evidence — that the table could be toppled by very modest force, was present in a café frequented by many thousands of young children, and had been assessed as imposing intolerable risk — was sufficient to satisfy the undemanding “not insignificant” test in s 5B(1)(b). The absence of a prior incident over six or seven years did not displace that conclusion, particularly given the primary judge’s careful analysis of the limited number of occasions on which children had been exposed to the table in the specific isolated configuration that caused the injury.
On ground 2, the Court rejected the Council’s submission that s 5C(a) required it to weigh the burden of precautions against the entire range of risks posed by café furniture, including children falling off stools or low tables. The Court held that “similar risks” under s 5C(a) are risks sharing the same essential character — here, a heavy and relatively unstable item of furniture falling upon a young child. Risks of a child falling off a stool or low table are not similar in that sense. The only items presenting truly similar risks were the four tall tables in the centre, and the burden of affixing or removing them was found to be minimal.
Ground 3 succeeded. Under s 13 of the Civil Liability Act, no award for future economic loss may be made unless the plaintiff first satisfies the court that the underlying assumptions accord with her most likely future circumstances. The Court held that neither asserted basis for the $50,000 buffer — potential labour-market disadvantage from scarring, or psychological apprehension causing reduced hours — was supported by the evidence. The award amounted to speculation rather than a founded assessment of probable loss, and could not stand regardless of its modest quantum relative to Lily’s lifetime earnings. The $50,000 component was set aside, reducing the judgment from $175,300 to $125,300.
Key Takeaways
- An occupier’s failure to bolt down or remove a visibly unstable tall table in a children’s café environment can constitute negligence under s 5B of the Civil Liability Act 2002 (NSW) even where no prior incident has occurred, if expert evidence establishes the table could be toppled by minimal force.
- Under s 5C(a), “similar risks” extend the burden-of-precautions inquiry only to risks sharing the same essential causal character; risks from entirely different mechanisms (e.g., a child falling off a low stool versus heavy furniture falling onto a child) are not “similar” and need not be aggregated into the precaution burden.
- A “buffer” award for future economic loss will be set aside if it is not grounded in evidence that the assumptions reflect the plaintiff’s most likely future circumstances, as required by s 13 of the Act — modesty of the sum does not cure the absence of an evidentiary foundation.
- A defendant who chooses not to call expert evidence or cross-examine the plaintiff’s expert is bound by those concessions on appeal; it will ordinarily be too late to challenge the expert’s methodology for the first time in the Court of Appeal.
Why It Matters
This decision clarifies the scope of the “similar risks” concept under s 5C(a) of the Civil Liability Act 2002 (NSW), confirming that defendants cannot inflate the burden-of-precautions analysis by aggregating disparate furniture-related hazards into a single undifferentiated category. The judgment draws a principled line: similarity is defined by the essential causal mechanism of injury, not by the broad category of object involved. For councils and venue operators, it signals that tall, top-heavy furnishings in areas regularly accessed by young children warrant proactive risk assessment, and that an accident-free history carries limited weight when expert evidence establishes inherent instability.
The damages holding reinforces a strict reading of s 13’s evidentiary threshold for future economic loss. Courts will not treat permanent scarring as self-evidently warranting a buffer award; plaintiffs must adduce actual evidence linking the scarring or its psychological sequelae to a probable diminution of earning capacity. The decision thus tightens the connection between pleaded injury and economic loss quantum in personal injury cases governed by the NSW civil liability regime.