Australian Standards and regulatory publications are not relevant to the assessment of breach of duty under s 5B of the Civil Liability Act 2002 (NSW) where there is no basis for expecting reasonable persons in the defendant's position to have been aware of those documents. The correct approach is to identify the standard of care on the basis of facts of which the defendant knew or ought to have known. A risk may be 'not insignificant' under s 5B(1)(b) yet the probability of harm may be so low that reasonable persons would not have taken precautions under s 5B(1)(c). Where the plaintiff is known to the defendant, the duty and breach must be assessed by reference to the particular plaintiff's characteristics, not those of a class.
The full text is available to signed-in members, including the 60 later cases that cite this judgment.
18 of the 60 citing cases carry a classified treatment. How each court treated it is available to signed-in members.