Notes on negligence, foreseeability, and risk under Victorian Wrongs Act and NSW Civil Liability Act (with Tapp v AB Campdraft as a leading example)

General principles under the Wrongs Act 1958 (Vic)

• Core idea: a person is not negligent for failing to take precautions against a risk of harm unless three conditions are met:

  • (i) the risk was foreseeable (a risk the person knew or ought to have known);

  • (ii) the risk was not insignificant; and

  • (iii) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

  • Expressed in formal terms: $ext{duty exists only if } ext{foreseeable} \, \land \, \text{not insignificant} \, \land \, \text{reasonable person would have acted}.$

• When assessing what a reasonable person would do, courts consider among other 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.

• Not insignificant vs insignificant (subsection 1(3)):

  • (a) Insignificant risks include, but are not limited to, risks that are far-fetched or fanciful;

  • (b) Not insignificant risks are all risks other than insignificant risks, including significant risks.

• Practical takeaway: foreseeability and the magnitude/probability of harm, plus the feasibility of precautions, guide responsibility for safety.

NSW Civil Liability Act comparison (5B) to Vic Wrongs Act s48

• Note: section 5B of the Civil Liability Act (NSW) maps to subs. 48(1)–(2) of the Victorian Wrongs Act in terms of breach framework.

• Key idea from Shoalhaven City Council v Pender (2013) NSWCA 210 CE:

  • Acceptance of a duty of care does not answer whether the duty was breached or whether any breach caused injury.

  • A defendant may owe a duty but still not breach it; breach requires a reasonable person’s response to a foreseeable risk.

• Section 5B(1) sets three co-existing preconditions for liability in negligence:

  • (i) the risk was one which the defendant knew or ought to have known;

  • (ii) the risk was not insignificant;

  • (iii) in the circumstances, a reasonable person would have taken precautions.

• Section 5B(2) provides a non-exhaustive list of factors to be considered in deciding whether the third precondition exists:

  • (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.

• The effect of s 5B(1) is that liability requires all three preconditions to co-exist; breach is assessed against whether the risk was foreseeable and not insignificant, and whether a reasonable person would have taken precautions.

• Foreseeability in s 5B(1)(c) ties to breach: foreseeability of the class of injury is central to establishing a duty, but the duty analysis at the breach stage turns on the foreseeability of the kind of carelessness that caused the harm.

• Additional notes: s 5B(2) factors are non-exhaustive; courts may consider other relevant factors from case law (e.g., Roads and Traffic Authority v Refrigerated Roadways Pty Ltd).

Duty of care vs breach: test of foreseeability at different stages

• In Shirt v Wyong Shire Council and related cases, the foreseeability inquiry differs between the duty stage and the breach stage:

  • Duty stage: asks generally whether harm to the plaintiff was a foreseeable possibility given the defendant’s position.

  • Breach stage: asks whether the specific acts or omissions that occurred were reasonably foreseeable as capable of causing the plaintiff’s harm, given what the defendant knew or ought to have known; includes consideration of whether a means to avoid the harm was available and would have been adopted by a reasonable defendant.

• San Sebastian (Environmental Planning and Assessment Act case) explains the progression from general foreseeability to more particular foreseeability as the analysis narrows from duty to breach.

• The Wagon Mound (No. 2) and Bolton v Stone illustrate two important points:

  • Foreseeability and the likelihood of occurrence are distinct concepts; a risk may be foreseeable even if its likelihood is low.

  • A risk need not be likely to occur to be foreseeable; the magnitude and context matter for breach analysis.

• Practical takeaway: foreseeability is a spectrum; the higher the risk’s magnitude and the greater the burden of precaution, the more likely breach will be found.

Notion of “not insignificant” risk and the significance standard

• Courts have consistently held that the standard for not insignificance is not particularly high: significant assessment of both the potential injury and the likelihood of it arising is relevant.

• The authorities emphasize that both the probability of harm and the likely seriousness of harm matter, as well as the ease and social disutility of taking precautions.

• Additional considerations include the obviousness of risk and whether the risk is part of a routine operational context.

• Notable authorities addressing this standard include Sibraa v Brown, Shaw v Thomas, Rail Corporation of NSW v Donald, and Bamford Family Trust cases.

Characterisation of the risk for s.5B and s.5L

• Proper analysis requires characterising the relevant risk at an appropriate generality; the risk must be described in a way that captures the essential causal mechanism without over-detailing the precise manner of injury.

• Port Macquarie Hastings Council v Mooney (and subsequent cases) support a rule: the risk description should reflect the general causal mechanism that could give rise to the harm, and it should be at the same level of generality for s.5L as for s.5B.

• Four core principles in risk characterisation (per Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited):

  • (i) The risk characterisation should identify the relevant risk of harm arising from the conduct or context, not the exact manner of injury;

  • (ii) The risk description should be at a level of generality that aligns with the breach analysis; specifying the precise mechanism is not required;

  • (iii) The classification under s.5L (obvious risk) does not require detailing every injury mechanism; the risk must be obvious and reasonably foreseeable;

  • (iv) The risk analysis under s.5L and s.5B should be aligned so that the same risk is assessed for breach and for the exclusion under 5L.

• Illustrative examples from the leading cases:

  • C. G. Maloney: safety risk described as slipping on polishing material rather than simply a 'polished floor' slip; the risk must be stated at the level of generality consistent with the breach context.

  • Menz v Wagga Wagga Show Society: a horse could be spooked by loud noises; the risk described should capture the essential hazard (e.g., spooking by stimulus) without specifying the precise sequence of events.

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) HCA 11 – key principiES

• Context: plaintiff injured when riding in a campdraft; key issue centered on how to properly characterise ‘the risk of harm’ for breach assessment under s 5B and of an ‘obvious risk’ under s 5L.

• Port Macquarie Hastings Council v Mooney approach adopted: identify the relevant risk of harm at the correct level of generality, not the precise mechanism.

• Four-step risk characterisation under s.5B/5L (as applied in Tapp):

  • (1) Identify the relevant risk that gives rise to potential harm in the context of the activity.

  • (2) Ensure the risk is described at the appropriate general level (not too specific or too abstract).

  • (3) Use the same level of generality for s.5L as used for s.5B when considering whether a risk is obvious.

  • (4) The description should include the general causal mechanism that could lead to injury.

• Four examples cited in the judgment illustrating proper characterisation:

  • Maloney: prevent slip on polish by identifying ‘polishing material on the floor not visible and not removed’ as the risk – not simply a generic floor slip.

  • Menz: risk described as a horse falling due to arena surface deterioration, not the exact sequence of events causing the fall.

• The key outcome in Tapp: the trial judge had characterised the risk too broadly; the Court of Appeal held that the risk should be characterised as the substantially elevated risk of physical injury by falling from a horse due to deterioration of the arena surface.

• The Court of Appeal held that, given the substantially elevated risk, the probability of harm was high enough that stopping the event to inspect the arena was a reasonable precaution, and the burden of stopping was low; the social utility of continuing the event did not outweigh safety concerns in light of the risk level.

• The evidence regarding the four falls and warnings: falls at 6.14 pm, 6:22 pm, 6:36 pm, and 6:58 pm; warnings after the first three falls (“the ground getting a bit slippery”) and after the fourth fall (“the ground unsafe”).

• The Committee and MRC chose not to stop the event; statements by witnesses indicated a pre-event recognition that the ground condition warranted attention, but the event continued.

• Evidence about disc-ploughing after the incident and its timing (three hours before resuming at 8:30 am) supported inferences about the extent of deterioration and visibility of the hazard; this evidence helps evaluate the foreseeability of harm at the time of Ms. Tapp’s fall.

• Rule 5 of the Committee Rules (often cited as a relevant factor) was considered; however, the Court clarified that Ms. Tapp’s case did not rely solely on Rule 5; the essential question was breach of the duty of care in light of the substantially elevated risk.

• Conclusion: The Court of Appeal found breach of duty established: given the substantial risk, the likely serious harm, low burden of precautions (stopping the event and inspecting the arena), and minimal social disutility to the remaining contestants, a reasonable person would have stopped the event to inspect the arena before Ms. Tapp competed.

Practical implications and connections to foundational principles

• Safety-first approach in activities with inherent risk: when there is a substantially elevated risk of serious injury, precautionary steps (e.g., stopping an event) are generally expected unless there is a compelling reason to continue.

• The role of foreseeability: foreseeability of harm is essential, but must be weighed against magnitude, probability, and practical burden of preventive measures.

• The balance of social utility vs. safety: even highly valued events may be halted if the risk of harm is substantial and the precautions modest.

• Risk description discipline: correctly characterising risk at the appropriate level of generality is critical to avoid over- or under-deterring liability; the same level of generality should apply for 5B and 5L analyses.

• Ethical and policy implications: emphasises accountability for safety decisions in organizations and associations; highlights the duty of care to participants and potentially spectators, and the responsibility of organizers to monitor and respond to adverse conditions.

Key statutory and case references (for quick lookup)

• Vic Wrongs Act 1958, general principles:

  • $ext{duty thresholds: foreseeability}$, $ext{not insignificant risk}$, and $ext{reasonable precautions}$.

  • $ext{Section } 48(1)–(2)$; (3) defines insignificant vs not insignificant risks.

• NSW Civil Liability Act:

  • $s 5B(1)$: three preconditions for liability (foreseeable, not insignificant, reasonable precautions).

  • $s 5B(2)$: factors to consider (a) probability; (b) seriousness; (c) burden; (d) social utility.

  • $s 5L$: defence of obvious risk; risk characterisation must align with the general risk framework.

  • $s 5C(b)$: cross-referenced provisions relevant to breach analysis.

• Leading authorities cited in the notes:

  • Shirt v Wyong Shire Council; Wyong Shire Council v Shirt (foreseeability in duty vs breach).

  • The Wagon Mound (No. 2) (foreseeability vs remoteness; risk magnitude).

  • Bolton v Stone (remote yet real risk; foreseeability not limited to likely events).

  • Port Macquarie Hastings Council v Mooney (risk characterisation at the appropriate generality).

  • Maloney; Menz v Wagga Wagga Show Society (risk characterisation in 5L; examples of how to describe risk).

  • San Sebastian Pty Ltd (environmental planning context for duty/breach analysis).

• Notable NSW appellate authorities applying the 5B/5L framework in sport and activity contexts:

  • Sibraa v Brown; Shaw v Thomas; Rail Corporation of NSW v Donald; Bamford Family Trust; JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell (2021 NSWCA 137) – discussion of not insignificant risk standard and obvious risk considerations.

Summary at-a-glance

• The Wrongs Act 1958 (Vic) and NSW CLA framework require: foreseeability, not insignificance, and reasonable precaution in breach of duty; with a structured set of factors to assess breach.

• Foreseeability operates at two levels: general duty of care vs breach of duty; the test tightens as one moves from duty to breach—yet both depend on considering risk magnitude, probability, burden, and social utility.

• The risk must be characterised at an appropriate generality to align with the breach analysis (5B) and the 5L defence; overly precise descriptions are not required and can distort liability outcomes.

• In Tapp v AB Campdraft (2022), the court emphasised that, given the substantially elevated risk and low burden of stopping the event, the association should have stopped the event prior to Ms Tapp’s fall; the decision highlighted the essential interplay of risk characterisation, breach assessment, and practical safety decisions in sporting contexts.

Key takeaways for exam-style responses

• Be clear about the three preconditions in s 5B(1) (or 48(1)–(2) Vic): foreseeability, not insignificant risk, and a reasonable person would have taken precautions.

• Use the four factors in s 5B(2) (a–d) to justify whether the third precondition exists; do not rely on a single factor.

• Distinguish duty-stage foreseeability from breach-stage foreseeability; both are important but operate at different analytical levels.

• When analysing risk under s 5L, characterise the risk at the same level of generality as the breach analysis and focus on the general causal mechanism rather than the precise how of the injury.

• In sport or similar contexts, if the risk proves to be substantially elevated with a low burden of precautions and low social disutility, stopping or delaying the activity may be required to avoid liability for breach.