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"not insignificant" March 17, 2016

Vincent v Woolworths Ltd [2016] NSWCA 40

31 In relation to s 5B(1)(b), Ms Vincent submitted that “the statutory notion [that] ‘the risk was not insignificant’ is directed towards the assessment of the probability of the occurrence of the risk. It is not directed to questions concerning the severity of the injury which could result from the risk” (Written Submissions, [17]).
32 As is evident from s 5B(2)(b), the likely seriousness of the harm is of particular relevance to the question posed by s 5B(1)(c) of whether a reasonable person in the defendant’s position would have taken relevant precautions. However, that is not to say that the seriousness of the harm that might eventuate is irrelevant to s 5B(1)(b). That paragraph, as with (a) and (c), appears under a chapeau referring to “a risk of harm”. The only risk that is relevant is one of “harm” being suffered. This is confirmed by s 5A which applies the Part in which s 5B appears only to claims for damages for “harm” resulting from negligence. Section 5, in turn, defines “harm” to mean “personal injury or death”.
33 Thus, in identifying the relevant “risk of harm” for the purpose of applying s 5B, including s 5B(1)(b), some material harm must be postulated. This need not be of the severity of the harm in fact suffered by the plaintiff (see Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64]) but must nevertheless be harm in a legal sense. Contrary to Ms Vincent’s submissions, the primary judge said no more than this in finding that s 5B(1)(b) was not satisfied because “appreciable personal injury due to a collision between a merchandiser and a customer’s trolley enjoys a very low probability of occurrence” (see [20] above).
34 His Honour’s reference to an “appreciable” personal injury was not inapt and was not confined to injuries of the severity of those suffered by Ms Vincent. It extended to less severe injuries but excluded from consideration the non-injury causing bumps with trolleys that are an ordinary feature of supermarket shopping.

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