Judgment date: 23 July 2010. Shaw v Thomas  NSWCA 169. New South Wales Court of Appeal1
- 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.
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 defendants, as occupier of the premises, in negligence. The parties accepted that the Act applied to the proceedings. This includes s 5B regarding the general principles of duty of care as follows:
(a) the risk was foreseeable, (that is, it is a risk of which the person knew or ought to have know), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not take,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm, and
(d) the social utility of the activity that creates the risk of harm.
District Court Decision
The primary judge in the District Court proceedings, Kirby J, determined on 26 June 2009 that the defendants were negligent and that the plaintiff's injuries had been caused by their negligence. It was accepted that it was foreseeable that young children of the plaintiff's age would climb onto the top bunk and might improvise in getting down, such that the defendants as occupiers ought to have known that there was a risk of harm, absent a ladder and guardrail.
Kirby J relied upon mandatory Australian Standards being in place since 2002 in respect of bunk beds, which required guardrails and ladders, as indicating the risk of injury was "not insignificant", as required by s 5B(1)(b) of the Act. It was held that a reasonable person in the position of the defendants would have taken precautions against such a risk by, for example, arranging for a handyman to fix and secure the ladder and guardrail to the relevant bunk bed. Kirby J awarded the plaintiff damages in the amount of $853,396.
NSW Court of Appeal Decision
Macfarlan JA delivered the unanimous judgment of the NSW Court of Appeal. The defendants asserted that the primary judge had erred in applying s 5B of the Act by not correctly identifying the relevant risk, by incorrectly concluding the risk was not insignificant and in concluding a reasonable person in the position of the defendants would have taken the precaution of installing a ladder and/or guardrail.
The defendants accepted that they owed the plaintiff a duty of care. In considering the nature of that duty of care, Macfarlan JA noted s 5B set out three pre-conditions which must co-exist before a liability in negligence will arise: Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd3:
The content of the occupier's duty to exercise reasonable care for the safety of an invitee varies with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises: Papatonakis v Australian Telecommunications Commission 4. Accordingly, Macfarlan JA held that the content of the defendants' duty was to be determined by reference to their relationship with and knowledge of the plaintiff.
In considering whether the risk of harm was "not insignificant" pursuant to s 5B(1)(b), Macfarlan JA noted that this imposes a slightly more demanding standard than the test in Wyong Shire Council v Shirt5. In this particular case, the Court of Appeal found that the risk of the plaintiff falling and injuring himself whilst descending from the top bunk of the bed was not insignificant. However, whether the risk of harm was sufficiently significant to require precautions to be taken against it occurring was an entirely different question.
It was determined that the primary judge erred in considering the contents of an ACCC Publication and Australian Standards in assessing the risk of injury occurring. Rather, Macfarlan JA cited with support the English Court of Appeal decision of Perry v Harris6 that documents such as the Australian Standards were instructive only and could not be used to determine breach of duty of care as they were not facts of which the defendants knew or ought to have known. In this particular case, there was no evidence that the defendants were aware of the Australian Standards and it could not be assumed that reasonable people in their position would have knowledge of those Standards.
With respect to s 5B(1)(c), the Court of Appeal disagreed with the primary judge's conclusion that reasonable persons in the position of the defendants would have taken precautions against the foreseeable risk of injury to the plaintiff by ensuring that the bunk bed had a ladder and guardrail. Firstly, it was noted that duty of care only imposes an obligation to exercise reasonable care, not a duty to prevent potentially harmful conduct; Roads and Traffic Authority of New South Wales v Dederer7.
The Court of Appeal also found that the probability that harm would occur if care were not taken was a very low one. This view was based on a finding that the plaintiff's height at the time of the accident would not have been much different to the height off the ground of the top bunk bed. Therefore, the risk of a normal 10-year old child not being able to safely negotiate a decent from such a low height without using a guardrail or ladder was very small. Finally, it was determined that the risk of the plaintiff suffering such a serious injury would have been seen by reasonable people in the defendants' position as bordering on remote.
Macfarlan JA therefore held that he did not consider reasonable persons in the position of the defendants would have responded to such a risk by installing a guardrail or ladder on the top bunk. The Court of Appeal cited with support the decision in Jones v Bartlett8 that it was a regrettable but inevitable fact of life that dangers exist in homes despite reasonable care having been taken.
In coming to this view, the Court of Appeal considered each of the matters set out in s 5B(2) and found that:
- the probability that the harm would occur if care were not taken was low;
- the likely seriousness of the harm was low;
- although the cost or the burden of taking precaution to avoid the risk of harm was low this was not determinative of what a reasonable person would do; and
- the social utility of the activity that created the risk of harm in this case was not relevant.
The Court of Appeal held that the defendants did not fail to act in a manner in which reasonable people in their position would have acted, did not breach the duty of care that they owed to the plaintiff and were not to blame for the tragic accident which occurred. The Court of Appeal ordered that the defendants appeal be allowed and that judgment for the defendants be entered in these proceedings.
The Court of Appeal has once again demonstrated that cases in negligence are to be determined by reference to each of the requirements in s 5B of the Act. In particular, the Court of Appeal has reaffirmed that a duty of care only imposes an obligation to exercise reasonable care, not a duty to prevent potentially harmful conduct. Section 5B(1)(b) which requires a risk be "not insignificant" is a slightly more demanding standard than the test formulated in Wyong Shire Council v Shirt.
Even if a risk of harm is foreseeable and not insignificant, unless an occupier fails to act in a manner in which a reasonable person in its position would have acted, there will be no breach of duty of care.
When considering breach of duty of care, the Court of Appeal has reaffirmed that any reference to Australian Standards is instructive only and that significance should not be attached to such rules or guidelines of which domestic home owners have no reason to be aware. This reinforces the principles referred to in cases such as Francis v Lewis9 that compliance or non-compliance with a Standard, or even with common practice, is not determinative whether there has been a breach of duty of care. In the end result it is the courts which determine the standard of care and whether there has been a breach of duty of care and in so doing regard must be had to the Act in addition to common law principles.
The standard of care owed by the occupier of domestic premises is not as stringent as is owed by the occupier of commercial premises.
1. Beazley JA, Tobias JA and Macfarlan JA
2.  HCA 12
3.  NSWCA 263
4.  HCA 3
5.  HCA 12
6.  EWCA Civ 907
7.  HCA 42
8.  HCA 56
9. (2003) NSWCA 152
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