Australia: 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

Curwoods Case Note
Last Updated: 4 August 2010
Article by Samantha Hubbard

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.


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:

"(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(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:

  1. the probability that the harm would occur if care were not taken was low;
  2. the likely seriousness of the harm was low;
  3. 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
  4. 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. [1980] HCA 12

3. [2009] NSWCA 263

4. [1985] HCA 3

5. [1980] HCA 12

6. [2008] EWCA Civ 907

7. [2007] HCA 42

8. [2000] HCA 56

9. (2003) NSWCA 152

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.