If harm is foreseeable in particular circumstances, the next thing to consider is: what would a reasonable person do to avoid the foreseeable harm?

The law does not require that foreseeable harm be avoided at all costs or in any circumstances. There are a variety of factors to be taken into account and weighed against each other to reach a balanced conclusion. The things that need to be considered are:

• The probability that the harm would occur if care were not taken
• The likely seriousness of the harm
• The burden of taking precautions to avoid the risk of harm, and
• The social utility of the activity that creates the risk of harm

How the courts weigh these factors is illustrated in Waverley Council v Ferreira (2005) Aust Torts Reports 81-818.

These factors were originally developed by the courts, but they have now been enshrined in state and territory legislation. The Civil Liability Act 2002 (NSW) is illustrative.

See section 5B Civil Liability Act 2002 (NSW).