Nature of duty of care owed by occupiers of domestic premises to ten year old boy who fell whilst descending from top bunk of bed - s 5B Civil Liability Act

Judgment date: 23 July 2010. Shaw v Thomas [2010] NSWCA 169. New South Wales Court of Appeal1

In Brief

In determining cases of negligence, regard must be had to the requirements of s 5B of the Civil Liability Act, 2002 (the Act), which sets out three pre-conditions that must co-exist before a liability in negligence will arise. Section 5B(1)(b) of the Act, which requires a risk be "not insignificant", imposes a slightly more demanding standard than the test in Wyong Shire Council v Shirt2, which referred to a risk "which is not far-fetched or fanciful". The contents of Australian Standards should not be taken into account when assessing how reasonable persons would have responded to a foreseeable risk. Rather, they are instructive only and cannot be presumed to be within the knowledge of all occupiers. Background

On 23 April 2004, Cameron Thomas (plaintiff), suffered serious head injuries including a fractured skull when he fell whilst descending from the top level of a bunk bed at the home of Mr and Mrs Shaw (defendants). The plaintiff did not sleep on the top bunk bed but had climbed up on it to talk to his friend, who was the defendants' son. The relevant bunk bed was determined to have a height from the top of the mattress to the floor of no more than 1.4 metres. The floor was concrete and carpeted. The plaintiff was aged 10 at the time of the accident.

The plaintiff used the bed end at the foot of the bed to help him climb up on to the top of the bunk. As to how the plaintiff fell, contradictory evidence was provided by the plaintiff and defendants' son. The defendants' son said that the plaintiff jumped down from a chest of drawers onto the floor and yelled "Geronimo", though this version was ultimately rejected by the primary judge. Rather, the plaintiff's evidence that he placed his foot on a chest of drawers to assist his descent as he tried to get down from the top bunk was accepted.

The relevant bunk beds were purchased in 1997 and had been fitted at the time with a tubular steel guard rail and ladder. The defendants gave evidence that within the first year of owning the bunk bed, the guard rail and ladder were removed as they were of poor design and were not properly fitted to the bed. The defendants also gave evidence that once their youngest child had reached eight years old, they considered the children did not particularly need a ladder or guard rail and were able to cope with the height. The plaintiff had in fact been on the top bunk of the bed on a few occasions prior to the incident occurring and on each occasion had used the end of the bed to get up and down.

The plaintiff commenced proceedings against the...