Tapp 2022 273 CLR 454

[112] … the risk to which s 5L refers should be characterised at the

same level of generality as it is characterised when assessing whether

the defendant has breached a duty of care under s 5B (146) as well as

for the purposes of assessing causation under s 5D. Since s 5L operates

upon established liability based on duty, breach, and causation of harm,

the risk to which s 5L refers must be the same risk that has

“materialised” as a result of the “harm” for which “liability in

negligence” would arise. That is the risk to which s 5B refers in the

context of the requirement to establish a breach of a duty of care, upon

which, in turn, the requirement of causation depends (147).

Although the risk should be characterised in the same way

[114] the characterisation of the risk for the purpose of s 5L should be at the same level of

generality as the risk considered for the purposes of the breach of duty which caused the harm to the plaintiff. Another way of putting this point, as expressed by the Court of Appeal of the Supreme Court of

New South Wales in a passage to which Payne JA referred in this case (150), is that the characterisation of the risk must include the “general causal mechanism of the injury sustained” which “gave rise to

the potential for the harm for which the plaintiff seeks damages” (151).

[115] for the purposes of s 5L it is unnecessary for the defendant to show the precise manner in which the injuries were sustained for the purpose of characterising the risk (153: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1 at 22-23 [100]-[101].).

[116] … it has correctly been observed that “an examination of the case law suggests that courts have consistently included the conduct alleged to be negligent as part of the risk description where that negligence involves commission rather than omission” (154). To the extent to which any distinction can sensibly be drawn between negligence in the commission of an act and negligence by an omission, in neither case have courts characterised the risk by reference to something that the defendant could or should hypothetically have done (155). The focus should be upon the same essential circumstances which established the necessity for a reasonable person in the position of the defendant to take reasonable precautions in performance of a duty of care. The risk with which s 5L is concerned is

thus the same risk as that with which s 5B is concerned.