Shaw v Thomas  NSWCA 169
The plaintiff sustained head injuries when he fell whilst descending from the top level of a bunk bed at the defendants' home. He was 10 years old at the time.
The plaintiff was at the defendants' home for a sleep-over. He was a friend of the defendants' youngest son, Joel. The plaintiff slept in the lower bunk. Joel slept in the top bunk.
On the morning of the accident the plaintiff used the end of the bed to climb onto the top bunk, as he had done before. He and Joel talked for a while. The plaintiff sat not far from Joel's head, with his legs dangling over the side of the bed.
There was differing evidence as to what then occurred. The plaintiff said that he tried to climb down using a chest of drawers situated next to the bed as a step. He slipped on the chest of drawers and fell. He said he was scared whilst climbing down. Joel said the plaintiff dropped his feet onto the chest of the drawers, stood up, said 'GERONIMO' and jumped. The trial judge accepted the plaintiff's version.
The bunk bed was originally fitted with a guardrail and a ladder. These had been removed by the defendants shortly after purchase as they would pull loose and were considered to be dangerous. The plaintiff alleged that the defendants were negligent for removing these devices, rather than repairing them.
Applying s5B of the Civil Liability Act, Kirby SCJ found:
- That the risk was foreseeable in that young children of the plaintiff's age would climb onto the top bunk and might improvise in getting down. The defendants ought to have known that there was the risk of harm, absent a ladder and guardrail: s5B(1)(a)
- That the risk was not insignificant in that bunk beds have been associated with many injuries to children, almost half of which cases are in the five to nine year age group: s5B(1)(b)
- That a reasonable person would have taken precautions against a risk of harm by ensuring that the bunk bed had a ladder and guardrail fitted: s5B(1)(c).
The plaintiff was ultimately awarded $948,020.
The Court defined the duty of care owed by the defendants to the plaintiff in the following terms:
- Occupiers owe a duty to entrants to take reasonable care to avoid foreseeable risks of injury
- This was reinforced by the fact that the plaintiff was a child and that the defendants were his temporary custodians
- An occupier is only required to exercise reasonable care to prevent injury to an entrant who uses reasonable care on his part, for his own safety
- When the entrant is a child the standard of safety must be applied with due regard to the physical powers and mental faculties which the occupier knew, or should have known, the child to possess
- The defendants' duty is to be determined by reference to their relationship with the knowledge of the plaintiff. For instance, the plaintiff was a normal, active 10 year old boy. The duty of care did not include a consideration of the capabilities or likely conduct of other children falling within that class referred to by the plaintiff's lawyers as 'children who regularly played at the defendants' premises'. Such other children may, for example, have been younger or less agile than the plaintiff.
The Court disagreed with the trial 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 for the following three reasons:
- Firstly, the duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Accordingly, the fact that an accident might not have occurred if the bunk bed had had a ladder and guardrail does not answer the question of whether there was a failure by the defendants to take reasonable care
- Secondly, the probability that harm would occur if care was not taken was a very low one. The plaintiff was a child of 10 years of age of normal strength and agility. As he was sitting on the edge of the bed with his legs dangling down, his feet would only have had to drop a little more than 1m for him to be standing safely on the floor. The risk of a normal 10 year old child not being able to safely negotiate a descent from such a low height without using a guardrail or ladder was very small indeed: s5B(2)(a)
- Thirdly, the prospect of the plaintiff, in jumping down not much more than 1m, suffering as serious an injury as he did, as distinct from an injury such as a sprained ankle or even a broken leg or broken arm, would have been seen by reasonable people in the defendants' position as bordering on remote: s5B(2)(b).
In summary, the probability of harm occurring and the likelihood of any harm being serious were both very low. Factors of particular importance in reaching this conclusion were the following:
- The plaintiff was a normal, active 10 year old
- The height from which he had to descend was a low one (about 1.4 metres) which was approximately equivalent to his own height
- As the plaintiff was sitting on the side with his legs dangling down, his feet had to descend little more than a metre for him to get down from the top bunk
- The metal framework of the end of the bed which had previously been used by him to get up and down was easily accessible to him.
The Court said that the question of what precautions would have been appropriate to take, to guard against any risk of harm, if the plaintiff had been asked to sleep on the top bunk, if the plaintiff had been younger than 10 or if the top bunk had been higher, did not arise in this case.
Moray & Agnew acted for the successful appellants. The plaintiff has indicated that an application for special leave to the High Court will be brought.
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