---
title: "Test an NSW failure-to-warn allegation against section 5H"
url: "https://ailawframework.com/practice/personal-injury-and-compensation/check-a-failure-to-warn-allegation-against-the-obvious-risk-limit/new-south-wales"
type: "task_jurisdiction_version"
site: "AI Law Framework"
id: "A21-SB20261022-7-NSW"
practice_area: "Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)"
tier: "yellow"
lawyer_review: "required"
jurisdictions: ["NSW"]
last_reviewed: "2026-10-25"
---

# Test an NSW failure-to-warn allegation against section 5H

> From the warning allegation and the risk description, list section 5H and the section 5F description of an obvious risk, including the three exceptions in section 5H(2). Do not decide whether a duty to warn was owed.

Canonical page: https://ailawframework.com/practice/personal-injury-and-compensation/check-a-failure-to-warn-allegation-against-the-obvious-risk-limit/new-south-wales  
Last reviewed: 2026-10-25

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)](https://ailawframework.com/practice/personal-injury-and-compensation.md) |
| Human involvement | Yellow: Lawyer and AI draft together |
| How AI is used | From the warning allegation and the risk description, list section 5H and the section 5F description of an obvious risk, including the three exceptions in section 5H(2). Do not decide whether a duty to warn was owed. |
| What the lawyer must review | Section 5H(2) does not presume a duty where an exception might apply Confirm the claim is one to which section 5H applies. Work injury damages are outside the Act A professional-service risk is an exception. The lawyer decides if it is made out The lawyer writes any pleading or advice |
| Written for | New South Wales |
| Applies to | [Check a failure-to-warn allegation against the obvious-risk limit](https://ailawframework.com/practice/personal-injury-and-compensation/check-a-failure-to-warn-allegation-against-the-obvious-risk-limit.md) |

## Checking plan

**Verify against sources**

The lawyer decides whether section 5H applies and whether an exception is made out.

- What the AI does: From the warning allegation and the risk description, list section 5H and the section 5F description of an obvious risk, including the three exceptions in section 5H(2). Do not decide whether a duty to warn was owed.
- What the lawyer does: Decide whether section 5H applies and whether any exception is made out.
- Who reviews: Lawyer competent in this practice area
- Basis: Checked against the linked sources on 23 October 2026. Confirm the current instrument before reliance.

## Checks the lawyer makes

1. Section 5H(1) says there is no duty to warn of an obvious risk. Section 5F defines that risk, including a risk of low probability and a risk that is not prominent.
2. The exceptions are a request for advice or information about the risk, a written law that requires a warning, and a professional whose service carries a risk of death or personal injury.
3. Section 5H(3) says those exceptions do not presume that a duty to warn exists.
4. Section 3B(1)(f) excludes work injury damages from the Act. Section 3B(2)(a) applies Divisions 1 to 4 and 8 of Part 1A to motor accidents. The lawyer confirms that section 5H is in one of those divisions before using it on a motor accident.

## Notes

- The division heading for section 5H was not on the section page that was opened. Do not assume it from memory.
- If a pleading is filed, Practice Note SC Gen 23 requires a verification of citations in submissions, and that verification must not be done only by a generative AI tool.

## Practical guide

Jurisdiction: NSW negligence claim to which section 5H of the Civil Liability Act 2002 applies

**Deliverable**: A limit table setting out section 5H, section 5F and the three exceptions, without a conclusion on duty.

**Inputs**

- The failure-to-warn allegation
- The lawyer's description of the risk
- The lawyer's confirmation that section 5H applies

**Example**: Illustrative example: The allegation is that an occupier gave no warning of a step. The table sets out section 5F and the three exceptions in section 5H(2). It does not say the step was an obvious risk.

**Stop and escalate when**

- The claim is for work injury damages.
- The risk is said to arise from a professional service and the lawyer has not considered section 5H(2)(c).

Checked 2026-10-23.

## Sources

- [Civil Liability Act 2002 (NSW) section 5H](https://classic.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5h.html) (checked 2026-10-23)
- [Civil Liability Act 2002 (NSW) section 5F](https://classic.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5f.html) (checked 2026-10-23)
- [Civil Liability Act 2002 (NSW) section 3B](https://classic.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s3b.html) (checked 2026-10-23)

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*