The Court of Appeal revisits the “statutory command” imposed by s13 of the Civil Liability Act 2002 (NSW) and reverses a buffer awarded to a 6.5 year old child: the decision of Randwick City Council v Wunderwald [2026] NSWCA 116

Australian Courts have long acknowledged that assessing economic loss in claims involving young children is a notoriously difficult exercise.[1] The assessment typically involves a degree of intuition, speculation and assumption and on that background, it is not unusual for a court to award a ‘buffer‘in such claims.[2] Waugh SC DCJ did exactly that in the first instance decision of Wunderwald v Randwick City Council,[3] which involved a 6.5 year old girl, Lily, sustaining scarring to the top of her forehead after she fell from the edge of a table within a Council-operated café. His Honour found that the Council was negligent and awarded the infant plaintiff $175,300.00 in damages, which included a $50,000.00 buffer for future economic loss.

The Council appealed that decision, contending that Waugh SC DCJ erred in finding that:

1. The risk of injury was not insignificant;
2. A reasonable person in the Council’s position would have taken the precautions to address; and
3. The infant plaintiff was entitled to an award of $50,000 for future economic loss in the form of a buffer.

The New South Wales Court of Appeal, constituted by Leeming JA, Stern Ja and Ball JA, ultimately allowed the appeal in part, with their Honours ordering that the previous judgment in favour of the infant plaintiff be set aside to reverse the $50,000.00 buffer.

The decision[4] serves as a useful illustration of the Court of Appeal’s application of s13 of the Civil Liability Act 2002 (NSW) (‘CLA’) to the facts and is an important reminder to practitioners and insurers that when assessing future economic loss, the assumptions put forward by plaintiffs as to their most likely future circumstances must be supported by evidence. Buffers claimed based on figures “plucked out of the air”[5] to address the possibility there may be economic loss in the future will fall short of satisfying s13 absent a secure evidentiary foundation to support the assumptions underpinning the claim. This is the case no matter how “modest” they may be.

The decision will also be of interest to café operators and proprietors that have children frequenting their premises. In this case, the Court of Appeal was not persuaded that an absence of previous incidents involving the specific tables meant that precautions ought not be taken. Instead, their Honours concluded that children were common visitors, were inquisitive and mischievous by nature and were often left to their own devices such that securing the table and/or removing it to prevent the risk was reasonable.

This kind of reasoning may have application outside of the specific facts. Regular, documented risk assessments and inspections and maintenance of café property may be useful tools for businesses to manage and/or eliminate similar risks.

A summary of the reasoning follows.

The infant plaintiff was 6.5 years old at the time of the incident on 31 January 2020. It occurred when she was a lawful patron of the Des Renford Leisure Centre in Maroubra, which was occupied and operated by the Council.

The plaintiff gave evidence, which was supported by CCTV footage, that she approached a table as tall as her, applied her weight to the edge of it by placing her hands on it and due to its instability, the table toppled.

She fell backwards and the table fell with her. It struck her in the forehead, causing a 10-12cm laceration (which cut to the bone of her forehead). This required surgical repair and resulted in permanent scarring.

The primary judge held that:

1.  The Council breached its duty of care (with the Council admitting that a duty was owed).
2. The risk of harm, being the risk that a child might climb or pull a tall, freestanding round table in the cause causing it to injure them, was foreseeable and not insignificant; and
3. A reasonable person in the Council’s position would have taken precautions against the risk of harm – either affixing the tables to the floor or removing them entirely, were of a low burden and the failure to do so amounted to a breach of duty.

The infant plaintiff was awarded a total judgment in the sum of $175,300.00 comprising $112,500.00 for non-economic loss, $12,800.00 for future out of-pocket expenses and a $50,000.00 buffer for future economic loss. The Council was also ordered to pay the plaintiff’s costs.

The Council appealed the primary judge’s decision on four grounds, only one of which was upheld.

The risk of harm was a not insignificant risk – not made out

The Court of Appeal agreed with the primary judge’s reasoning and accepted that a table with a 7.5kg table top, which could become unstable with the application of very modest levels of force in a café where young children could interact with it, gave rise to both a foreseeable and not insignificant risk.[6]

In that regard, their Honours were not persuaded by the Council’s evidence as to the absence of prior accidents in the café. Instead, the Court of Appeal accepted the unchallenged liability evidence of Mr Neil Adams, observing:

1. Once in motion, the tables were difficult to control due to their shape (round), height and weight. Their Honours concluded that these attributes were established by the evidence of Mr Adams, but were also consistent with ordinary human experience of similar types of tall tables with round bases narrower than their tops; and
2. It was readily foreseeable that a falling table of the size and weight of that table would likely generate considerable force sufficient to cause injury to a child, in circumstances “where families with young children were common in the centre, it was not uncommon for children to be moving around the cafe area, not necessarily under the direct supervision of their parents, and sometimes left to their own devices, that the table would have been taller than a number of the children who visited the centre, and that children are naturally inquisitive, sometimes mischievous, and often unaware of the potential danger posed by objects”.

A reasonable person would have taken precautions – not made out

The Court of Appeal rejected the Council’s argument that the primary judge erred in concluding that a reasonable person would not have taken precautions against the risk of harm. In doing so, their Honours observed that in keeping with s5(C)(a) of the CLA, the precise mechanism which eventuates need not be foreseeable and the section operates such that a defendant cannot avoid liability by a characterisation of a risk of harm which is unduly specific.[7]

Their Honours, quite-matter-of-factly, remarked that café operators ought not use high tables which can topple upon the application of only very modest force in areas frequented by children. They had no difficulty accepting that a reasonable café operator “should use a table which is more stable, or else if the unstable table must be used, should fix it in some way to prevent its fall”.[8]

A buffer should not have been awarded – allowed

The infant plaintiff’s claim for future economic loss was based on an acceptance on the primary judge’s part that the infant plaintiff’s scarring may place her at a ‘relative disadvantage on the open labour market’. The plaintiff further submitted, and was accepted on the notion, that she may have “periods of apprehension, worry, anxiety or increased stress” such that she may require time off work or take steps that will produce financial loss.

Against that background, the primary judge regarded the $50,000.00 buffer awarded as a “modest sum” in the circumstances.[9]

The Court of Appeal disagreed and rejected the primary judge’s reasoning. In doing so, their Honours made the following important observations and conclusions:

1. Section 13 of the CLA is a statutory command. No award for future economic loss may be made without the claimant first satisfying the court that the assumptions accord with his or her most likely future circumstances. The reference to “most likely” is a reference to what may be the most likely possibility, rather than the most likely probability.[10]
2. In this case, the fact the plaintiff’s scarring may disadvantage her on the open labour market was expressed as a mere possibility rather than an actual disadvantage. The Court was not taken to any investigation into the sort of employment the plaintiff’s scarring may disadvantage her in, nor was the Court taken to an analysis of how that disadvantage may manifest in loss. It followed that the plaintiff did not attempt to identify the percentage possibility of those events occurring as required by s13 of the CLA. There was insufficient evidence to establish future economic loss.
3. The assumption that the plaintiff may have periods of apprehension, worry or increased stress such that it may lead to reduced hours or loss also lacked any evidentiary foundation. It was expressed as a possibility and not a finding of what would happen, such that the buffer allowed was best regarded as a speculative possibility.
4. In relation to the sum allowed, the Court of Appeal observed that the roundness of $50,000.00 was suggestive of it being “a guess” and unconnected to any particular assumptions or percentages contrary to the requirements of s13. The Court of Appeal was unpersuaded that the figure of $50,000.00 was any more supported than a figure of $10,000.00, for example.
5. The fact a buffer may be regarded as “modest sum” did not bear on the exercise required by s13 of the CLA in their Honours’ mind.  In this case, the Court of Appeal considered the most likely outcome ‘by far’ to be that there will be no financial disadvantage to the plaintiff from a serious injury in her early childhood. Their Honours considered any other finding to be best characterised as ‘wholly speculative’.

The Court of Appeal therefore dismissed grounds 1-3 of the appeal and upheld ground 4, reducing the judgment in the plaintiff’s favour to $125,300.00. The Council was also ordered to pay ¾ of the plaintiff’s costs.

Too often is a generalised loss of competitiveness/disadvantage on the open labour market pleaded in claims involving children. The Court of Appeal’s reasoning is an important reminder that albeit this may be an accepted possibility in some claims, s13 of the CLA requires more than that. A plaintiff must establish their most likely circumstances but for the injury by adducing evidence of same, for example, through an investigation into the sort of employment the plaintiff may now be disadvantaged in and how their disadvantage may actually manifest in economic loss not otherwise already compensated (for example, through an award of non-economic loss).

While the difficulty in assessing economic loss in claims involving minors stands, in defending those claims, it is important to remember that the plaintiff carries the onus of satisfying the court of the matters required by s13. The speculation and assumption inevitably required in adopting a buffer allowance must be underpinned by an evidentiary foundation.