Tapp (2022) 273 CLR 454

[110] Although the identification of the appropriate level of generality will not always be straightforward,

there are four significant matters that must guide the reasoning process concerning the selection of the correct level of generality. First, and contrary to some views that have been expressed in the New South

Wales Court of Appeal (142), the “risk” with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. Secondly, the s 5L risk should be

characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care. Thirdly, the generality at which the risk in s 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more. Fourthly, and consequently, the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty. Each of these four matters is explained in turn below.

at [106]

The proper assessment of the alleged breach of duty depends on “the

correct identification of the relevant risk of injury” (133)[Roads and Traffıc Authority (NSW) v Dederer (2007) 234 CLR 330 at 338 [18].],

only then that an assessment can take place of what a reasonable

response to that risk would be (134). Dederer @ [59]

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 (135):

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1 at 22 [98].

The characterisation of the relevant risk should not obscure the true source

of the potential injury (136). Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1 at 22 [99], quoting Roads

and Traffıc Authority (NSW) v Dederer (2007) 234 CLR 330 at 351 [60].

Tapp @ [108]

The effect of this provision is that a defendant cannot avoid liability by characterising a risk at an artificially low level of generality, that is, with too much specificity