When a plaintiff alleges breach of duty by failure to take a particular precaution, the court must consider whether the proposed precaution would itself create risks of injury; the burden is on the plaintiff to demonstrate that the risks associated with the proposed precaution are less than the risks of the existing state of affairs. The absence of prior accidents over a substantial period is relevant but not determinative of whether a risk is 'not insignificant' under s 5B(1)(b). The word 'probability' in s 5B(2)(a) refers to the chance of harm occurring, not a balance of probabilities standard.
The full text is available to signed-in members, including the 2 later cases that cite this judgment.