What began as a seemingly ordinary café accident turned into a notable occupier’s liability case in Wunderwald v Randwick City Council [2025] NSWDC 466. Six-year-old Lily Wunderwald was seriously injured when a freestanding table toppled onto her at the Des Renford Leisure Centre cafe. Proceedings, brought by Lily through her tutor, Mr Shannon Wunderwald, alleged negligence on the part of Randwick City Council in its capacity as the café’s occupier. The case is significant for illustrating how occupiers can be held liable for risks posed by ordinary furniture in child-frequented spaces, even where there is no history of prior incidents or actual knowledge of danger.
Background
On 31 January 2020, Lily (aged six at the time) attended a café with her mother and younger sister, as she often did after swimming lessons. While her mother remained seated and later spoke with a friend, CCTV footage shows Lily moving around the café area and approaching a tall, freestanding round table on three occasions. The table, one of four used in the café and foyer area, was approximately 1.1 meters high, had a round wooden top wider than its metal base and was not fixed to the floor. On the third occasion, the table toppled onto Lily, causing deep lacerations to her forehead and anterior scalp, requiring hospitalisation and surgical repair under general anaesthetic.
Evidence established that the table was not in its usual position and that children frequently moved around the café area without direct parental supervision. Although regular work health and safety inspections were conducted, no specific stability testing or ergonomic assessment of the high tables had been undertaken. No prior incidents involving the tables have been reported.
General Legal Principles
Duty of Care
The central issue was not whether the Council owed Lily a duty of care, but whether they breached that duty. As the occupiers of the centre, the Council accepted it owed Lily a duty of care. The real controversy lies in how that duty operated in practice and whether reasonable precautions should have been taken.
Breach of duty
The assessment of breach is governed primarily by s 5B of the Civil Liability Act 2002 (NSW), with s 5C providing essential qualifications. Under s 5B, negligence is not established unless three elements are satisfied:
- The risk of harm was foreseeable (that is, not far-fetched or fanciful),
- The risk was not insignificant, and
- A reasonable person in the defendant’s position would have taken precautions against it.
In deciding whether a reasonable person would have taken precautions, the court is to consider the following:
- The likelihood of the harm occurring,
- The seriousness of the potential harm,
- The burden of taking precautions, and
- The social utility of the activity giving rise to the risk.
Section 5C qualifies this assessment in several important respects. It clarifies that the burden of taking precautions extends beyond the specific risk in issue and includes addressing similar risks of harm for which the defendant may also be responsible. It further emphasises that the mere availability of an alternative course of action does not, of itself, establish negligence. Nor does the fact that the defendant took later steps which, had they been taken earlier, might have avoided the harm constitute liability or admission of fault.
Causation
Causation is determined in accordance with sections 5D and 5E of the Civil Liability Act. However, causation was not contested in this case and did not require substantive consideration.
Judgement
The District Court found that Randwick City Council breached its duty of care to Lily and was therefore liable for negligence.
Foreseeability of the Risk
The Court identified the relevant risk of harm as the risk that a child might climb or pull on a tall, freestanding round table in the café, causing it to topple and injure them. Although the plaintiff accepted that the Council had no actual knowledge of the risk, the Court was satisfied that the risk was nevertheless foreseeable because the Council ought to have known of it.
In reaching that conclusion, the Court relied on the tables’ inherent instability, such that only modest horizontal force was required to set them in motion. Once in motion, the tables were difficult to control and prone to toppling. The Court accepted expert evidence that these characteristics were consistent with ordinary human experience and that a falling table of that size and weight was capable of causing serious injury to a child.
The Court also placed weight on the Council’s knowledge that the Centre was frequently used by families with young children, with a significant portion of café visitors being 12 and under who were commonly observed moving about the café area, sometimes without direct parental supervision. Against this background, the Court considered that the Council ought to have appreciated children’s natural curiosity and limited awareness of danger, which increased the likelihood of interaction with the tables. The precise manner in which Lily was injured did not need to be foreseeable for the risk itself to meet the statutory test.
Risk “Not Insignificant”
The Court further held that the risk of harm was “not insignificant” for the purposes of s 5B(1)(b). While the Council relied on evidence that no prior incidents involving the tables had been reported, the Court found that this was not determinative.
The absence of prior incidents was undermined by evidence concerning the volume of café use, the number of children frequenting the area, uncertainty as to how often the table had been positioned as it was on the day of the accident, and the fact that reported incidents depended on the types of matters brought to the attention of management. The Court also accepted evidence that falling furniture poses a well-recognised and potentially catastrophic risk, particularly to children. When these matters were considered together, the risk was adequately characterised as real and substantial.
Reasonable Precautions
Having found that the risk was foreseeable and not insignificant, the Court considered whether a reasonable person in the Council’s position would have taken precautions against it. The plaintiff proposed either affixing the tables to the floor or removing them entirely.
Although the probability of harm was not high, the Court accepted expert evidence that, given the instability of the tables and the regular presence of children, there was a significant likelihood of injury. The seriousness of potential harm was evident from the injury sustained by Lily and the conceded potential for even more serious injury. The Council accepted that the burden of taking the suggested precautions was minimal and did not contend that the café’s social utility justified inaction.
In those circumstances, the Court concluded that a reasonable person would have taken the proposed precautions. The Council’s failure to do so amounted to a breach of its duty of care.
Causation and Liability
Causation was not seriously in dispute. The Court found that the Council’s negligence was a necessary condition of Lily’s injury, and it was appropriate for the scope of liability to extend to the harm suffered.
Damages
The court determined that Lily was entitled to $112,500 for non-economic loss, $12,800 for future out-of-pocket expenses and $50,000 for future economic loss, therefore totaling to the sum of $175,300, with orders for the defendant to pay the plaintiff’s costs.
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