Shaw V Thomas

In Benic v New South Wales [2010] NSWSC 1039 the risk of harm was the plaintiff, a police officer, suffering psychiatric injury as a result of receiving a threat to his life in the course of his work. The alleged breach was the failure to provide prompt and appropriate psychological or psychiatric assistance. The court noted that whether the risk was not insignificant was to be analysed from the perspective of the defendant and was to be prospective: at [411]. The evidence was that the Commissioner of Police had taken a series of steps to address stress, including psychiatric illness, amongst police officers. This evidence satisfied Garling J that the risk of psychiatric illness from the defendant’s perspective was not insignificant: at [414]. It was reasoned that the risk of psychiatric harm:

… might affect up to one third of officers exposed to traumatic events, and it was seen by the Commissioner as sufficient to warrant the expenditure of monies … I doubt that the Commissioner would have taken these steps if the risk was an insignificant one: at [414].

Shaw v Thomas [2010] NSWCA 169 involved a 10-year-old child being injured by falling off a bunk bed when staying at a friend’s house. The risk was defined as the respondent ‘falling and injuring himself whilst descending from the top bunk of the bed in question’: at [45]. It was held that no reference should be made to the relevant Australian Standards in respect of bunk beds or a publication by the Australian Competition and Consumer Commission that referred to evidence of bunk bed injuries to children, when assessing whether the risk was not insignificant as the appellants had no knowledge of such. At [46] Macfarlan JA stated that whether the risk was not insignificant ‘was to be determined by reference to the circumstances of which reasonable people in the position of the appellants would have been aware’.
11.45 Section 48(3) of the Wrongs Act 1958 (Vic) attempts to give some guidance on the meaning of