Shaw v Thomas [2010] NSWCA 169 (23 July 2010)

Last Updated: 26 July 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Shaw v Thomas [2010] NSWCA 169
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/298417

HEARING DATE(S):
21 June 2010

JUDGMENT DATE:
23 July 2010

PARTIES:
William Richard Shaw (First Appellant)
Susan Joyce Shaw (Second Appellant)
Cameron Brock Thomas by his tutor Doreen Thomas (Respondent)

JUDGMENT OF:
Beazley JA Tobias JA Macfarlan JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
20166/2008

LOWER COURT JUDICIAL OFFICER:
Kirby J

LOWER COURT DATE OF DECISION:
26 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Thomas v Shaw [2009] NSWSC 510

COUNSEL:
P H Greenwood SC/N J Polin (Appellants)
A S Morrison SC/R W Royle (Respondent)

SOLICITORS:
Moray & Agnew (Appellants)
Slater & Gordon (Respondent)

CATCHWORDS:
TORTS - negligence - nature of duty of care owed by appellants as occupiers to ten year old boy who slept over at their premises - Civil Liability Act 2002, ss 5B and 5D - whether risk of boy injuring himself whilst descending from top bunk of bed that did not have a guard-rail or ladder was "not insignificant" - whether reasonable persons in the position of the appellants would have had a guard-rail or ladder installed - relevance of Australian Standards

LEGISLATION CITED:
Civil Liability Act 2002

CATEGORY:
Principal judgment

CASES CITED:
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; [2009] 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1986-1987) 162 CLR 479
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Doubleday v Kelly [2005] NSWCA 151
Indermaur v Dames (1866) LR 1 CP 274
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7
Perry v Harris [2008] EWCA Civ 907
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 53 MVR 502
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185
Tabet v Gett [2010] HCA 12; (2010) 84 ALJR 292
The Commonwealth of Australia v Introvigne [1982] HCA 40; (1981-1982) 150 CLR 258
Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Wyong Shire Council v Shirt [1980] HCA 12; (1979 - [1980] HCA 12; 1980) 146 CLR 40

TEXTS CITED:
John G Fleming, The Law of Torts, 9th ed (1998) LBC Information Services
Review of the Law of Negligence Final Report, (September 2002)

DECISION:
(1) Appeal allowed;
(2) Set aside Orders 1 and 2 made on 26 June 2009 and Order 1 and “Further Order” 1 made on 30 July 2009;
(3) Direct that judgment for the appellants be entered in the proceedings;
(4) Subject to Order (5), order the respondent to pay the appellants’ costs of the proceedings at first instance and on appeal;
(5) Order the appellants to pay on the ordinary basis the respondent’s costs thrown away by reason of the amendment by the appellants of their written submissions on appeal and Notice of Appeal;
(6) Grant leave to the appellants to amend their Amended Notice of Appeal to seek restitution, a Further Amended Notice of Appeal to be filed within 14 days of the date of this judgment;
(7) Order that the respondent pay to the appellants by way of partial restitution of the amount of $30,000 paid by the appellants to the respondent’s tutor on 11 August 2009, such part of that amount as the respondent’s tutor did not spend for the benefit of the respondent prior to the receipt by the respondent’s solicitor of the letter dated 23 June 2010 written to him by the appellants’ solicitors;
(8) Grant leave to the appellants to apply by notice of motion filed within 14 days of these orders, supported by affidavit and, if necessary, written submissions, for an order for payment by way of restitution of a fixed amount of money if agreement cannot be reached between the parties as to the amount referred to in Order (7); and
(9) The respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/298417

BEAZLEY JA

TOBIAS JA

MACFARLAN JA

23 JULY 2010

SHAW v THOMAS

Judgment

1 BEAZLEY JA: I agree with Macfarlan JA.

2 TOBIAS JA: I agree with Macfarlan JA.

3 MACFARLAN JA:

Nature of Case and Conclusions

4 On the morning of 23 April 2004 the respondent, Cameron Thomas, suffered serious head injuries when he fell whilst descending from the top level of a bunk bed at the home of the appellants, Mr and Mrs Shaw, at Bilambil Heights on the North Coast of New South Wales. Cameron was friendly with the appellants’ son Joel and had stayed the previous night at their home. Cameron did not sleep on the top bunk but had climbed up on it to talk to Joel.

5 Through his tutor, Cameron claimed damages against the appellants upon the principal ground that they had been negligent in not ensuring that the bunk bed was fitted with a ladder and a guard-rail.

6 After resolving an issue of fact as to how the accident occurred, the primary judge found in favour of Cameron and awarded him damages in the amount of $853,396.

7 On appeal the appellants challenged the primary judge’s findings that they were negligent and that Cameron’s injuries were caused by their negligence. There was no appeal concerning the quantum of the damages awarded.

8 For the reasons that appear below, I consider that the appellants did not breach the duty of care that they owed to Cameron by failing to ensure that the top bunk had a guard-rail and ladder. Factors of particular importance in reaching this conclusion were the following:

Cameron 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 Cameron 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; and

the metal framework of the end of the bed which had been used by him to get up and, on previous occasions, to get both up and down, was easily accessible to him.

The Factual Circumstances

9 Cameron was born in January 1994 and was thus aged 10 at the time of the accident. He had been sleeping on a bunk bed at his home for some three or four years prior to the accident (Transcript p 16). This bed was fitted with a ladder and a guard-rail. Cameron’s mother gave evidence, which the primary judge accepted, that Cameron used the ladder to gain access to the top bunk of that bed (Judgment [8]).

10 The appellants have four sons. Cameron’s friend Joel is the youngest and was aged 13 years at the time of the accident.

11 On the night of 22 – 23 April 2004 Joel slept on the top bunk of one of the two bunk beds that Mr and Mrs Shaw owned. Cameron slept elsewhere. When Joel woke up he invited Cameron to join him on the top bunk where he had slept. One side of the bunk bed and the head of the bed were against walls. On the other side there was a chest of drawers adjacent to the bed head. The bed had a metal framework with hollow cylindrical bars at each end of both the upper and lower levels. The bed ends on the top level had a rounded arched shape. The upper side of the metal mattress base on the top level was established by expert evidence to be 1.22 metres from the floor. An innerspring mattress rested on that base at the time of the accident. It can be assumed that the thickness of the mattress where Cameron was sitting on it was no more than about 150 millimetres when compressed by Cameron’s weight, making the height of the top of the mattress from the floor no more than 1.4 metres. The floor was a concrete one but was carpeted.

12 On the morning of the accident Cameron used the bed end at the foot of the bed to help him climb on to the top bunk. He and Joel talked for a while. Joel was lying on the bed with his head on the pillow. Cameron sat not far from Joel’s head with his legs dangling over the side of the bed (Judgment [3]).

13 There was differing evidence as to what then occurred. The primary judge’s acceptance of the evidence of Cameron is not challenged on appeal. Cameron described what occurred as follows:

“There was a chest of drawers next to the bunk bed. There was no ladder to climb down from the bunk bed. I tried to get off the top bunk by facing out from the bed, towards the computer. I put my right foot on the chest of drawers and twisted my body to the left to get my left foot on the bottom bunk. I don’t remember if my left foot reached the lower bunk” (Judgment [14]).

14 He said that the next thing he remembered was waking up at home. It transpired that he had fallen and had fractured his skull and seriously damaged his nose in the fall, apparently hitting his head on the floor. The primary judge said that it was not difficult to imagine how, on Cameron’s account of sliding down the side of the bed and trying to use the chest of drawers as a foothold, he might have lost his balance and fallen on his head (Judgment [72]).

15 Joel’s version of what occurred that was rejected by the primary judge was as follows:

“[Cameron] just dropped his feet on to the chest of the drawers and he stood up and then he said something which I am pretty sure he said ‘Geronimo’ and then he jumped down and from my angle it looked like he just jumped down and landed but I looked down and he was on the ground and he started screaming” (Judgment [38]).

16 The bunk bed from which Cameron was descending was one of two bunk beds that the appellants purchased in 1997. At the time of their purchase the beds were fitted with a tubular steel guard-rail on the top bunk. This was removed in circumstances described by Mrs Shaw as follows:

“Q. Now at the time of Cameron’s accident there wasn’t that rail on the top bunk. What happened to it?

A. No, it was removed because it actually broke, not long after we purchased the bed. It – it just pulled out – the bolts stripped out of the framework one day when one of my children was sort of climbing off the bed and so we just removed them both off both bunks.

Q. So when you say not long after you bought it?

A. Within the first year of owning them” (quoted in Judgment [10]).

17 At the time of their purchase the beds were also fitted with ladders made of tubular steel. The ladders were not bolted to the beds but were attached by means of U-shaped hooks designed to hook onto the steel frames of the upper and lower levels of the beds. They were also removed. Mrs Shaw described the circumstances of their removal as follows:

“Q. Now as at 23 April 2004 that ladder wasn’t on the bunk bed in Joel’s room?

A. No. No, it was not.

Q. What happened to that ladder?

A. Again we found that the design was poor, that the children when it was first purchased had trouble with it slipping off all the time and we decided that rather than have someone fall climbing on it we would just remove them.

Q. When was that done?

A. Again early in the time that we owned it, in that first year” (quoted in Judgment [11]).

18 When asked in cross-examination why the guard-rail was not repaired after it broke she said that “it didn’t go any higher than the mattress and therefore seemed to be a waste of a piece of equipment” (Transcript p 280). When asked why she did not use twine or some other method of securing the ladder, she said that “[o]ne, my children were older and didn’t particularly need it; and, two, if I had younger children around, they couldn’t climb up to the top bunk, so it seemed like a double benefit; I had friends with young children”. Having indicated that Joel was aged eight when the ladders were removed, she indicated that she was “satisfied that an 8-year-old would be able to cope with a bed – a bunk bed without a ladder” (Transcript p 281).

19 It is not entirely clear where the guard-rails and ladders were positioned on the beds but it seems from the expert evidence that on the bunk bed relevant to these proceedings the ladder had been situated about 80 millimetres from the bedhead and that it was about 200 millimetres wide. The guard-rail appears to have been positioned along the middle of the top bunk finishing some 300 millimetres from each of the bed ends (Blue Appeal Book pp 320 – 321). On the basis that the bed was likely to have been no more than about 2.0 metres in length, the length of the guardrail would have been no more than about 1.4 metres.

20 Cameron had not previously stayed the night at the appellants’ home but he had been there on a number of occasions. The primary judge accepted Cameron’s estimate that he had been on to the top bunk of the bed on which the accident occurred “a couple of times” (Judgment [29] – [30]) and that on each occasion he had used the end of the bed to get up and down. Cameron gave the following evidence on this topic:

“Q And essentially you were using the end of the bunk bed as a ladder?

A. Yes. Not such as a ladder, just more of a guide to get down.

Q. You described using the horizontal rails that you would stand on as you went up?

A. Mm-hm.

Q. That's right?

A. Yes.

Q. Is that the way you came down every time you had previously been up on the bunk bed?

A. Yes.

Q. So on this particular morning why didn't you go back down that way?

A. Because I just went down that way and I just got down the way I did and I've seen Joel many times just jump down there.

Q. So you had seen Joel jump off the bed actually, had you?

A. Yes.

Q But I take it that you at least knew on the day that you had your fall that if you wanted to you could have actually climbed down the very way that you got up?

A. Yes.

Q. That was there and available to you?

A. Yes.

Q. If you wanted to?

A. If I wanted to.

Q. But you decided to go a different way?

A. Yes” (quoted in Judgment [33] – [34]).

21 The primary judge gave the following description of the evidence of Mrs Shaw:

“78 Mrs Shaw gave evidence that children used to stay quite often on sleep overs (T 264). She knew, of course, that the bunk had no ladder and no guardrail. The bed base of the top bunk was approximately 1.22 metres high, with the mattress resting on top (Exhibit A: p 140). Mrs Shaw said that she had seen boys use the end of the bunk to climb up (T 264). She never saw them climb down (T 265). She only ever saw them jump down: ‘Boys do a lot of jumping’ (T 265). She recognised that boys had a proclivity to climb (T 282). She said: ‘I would guess that boys will be boys’ (T 282). She also recognised that boys can be impulsive (T 282). Indeed, she knew from observation that Cameron was somewhat impulsive (T 283). He was, in her words, ‘very lively’ (T 283). She had seen boys on the top bunk from time to time (T 267)” (Judgment).

22 Mrs Shaw said that “[t]he boys always used the base of the bed to just climb up”. When asked what she was referring to as “the base of the bed”, she said “the ends how they had the ladder effect yeah, just climb up that”. Later, she said that Joel did not always climb up the bed, “he would just sort of lift himself up onto it” (Transcript pp 264-265). She also said that at various times she saw boys on the top bunk bed: “they would sit up there and read skate magazines or car magazines ... ” (Transcript p 267).

23 Cameron’s mother described Cameron as being, prior to the accident, “very happy, gregarious, out-going, [a] very caring boy, incredibly kind, giving of himself to others”. When asked whether she would have described him as a sportsman she said “[n]ot in the sense of competitive sport but he particularly enjoyed skating, trampolining, active things such as that. He enjoyed games, soccer in normal school sport” (Transcript p 12). Mrs Shaw described Cameron as follows:

“He’s a lovely boy. He’d run a lot, he was excitable, he was quirky, but he was a good kid, all the boys that came over were nice and – yeah. We’d often have to be saying ‘slow down Cam’ or, you know, ‘settle down Cam’ but that was okay; I had up to ten young people there most afternoons” (Transcript p 267).

The Civil Liability Act 2002

24 The parties accepted that the Civil Liability Act 2002 (the “Act”) applied to these proceedings. In relevant respects it provides as follows:

“Division 2 Duty of care

5B General principles

(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 known), 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 a 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 taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

...

Division 3 Causation

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

...

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party”.

The Judgment at First Instance

25 As to the requirement of foreseeability of the risk specified in s 5B(1)(a) of the Act, the primary judge said that he accepted “that it was foreseeable that young children of Cameron’s age would climb onto the top bunk and [might] improvise in getting down. The occupier ought to have known that there was the risk of harm, absent a ladder and guardrail” (Judgment [79]).

26 In relation to the requirement of s 5B(1)(b) that the risk be one that “was not insignificant”, the judge first referred to the respondent’s submission that “the risk was so significant that, since 2002, there had been a mandatory Australian Standard in respect of bunk beds” (Judgment [80]). This Standard was in fact one dating from 1994 (Australian Standard AS4220:1994) but may, in a manner that was not revealed by the evidence, have been given some additional operation or force in 2002. The Standard itself was not in evidence. A publication of the Australian Competition and Consumer Commission (the “ACCC”) that was in evidence referred to bunk beds having “been associated with many injuries to children. Hazards include falling from the top bunk or small heads and limbs being trapped in the bed framework, often leading to serious or even fatal injuries” (quoted in Judgment [80]). The publication said that “[a]lmost half of all bunk bed injury cases are in the five-to nine-year age group” (ibid).

27 The provisions of the Standard were also referred to in the expert report of Dr Robert Casey that the respondent tendered at first instance. Dr Casey said that the Standard contained requirements for a guard-rail and ladder and expressed the following opinion:

“Both a guard rail as well as a ladder would provide support for someone attempting to climb down from the top bunk. The guard rail offers a hand hold whilst the ladder would provide a foothold. The number of hand holds and footholds are greatly reduced if both of these items are removed” (quoted in Judgment [81]).

28 Having referred to the ACCC publication, Dr Casey’s report and other matters, the primary judge said that he was “satisfied that the risk was not insignificant” (Judgment [82]).

29 In discussing the requirement in s 5B(1)(c) of the Act concerning precautions that would have been taken by a reasonable person in response to the risk, the judge referred to the respondent’s submissions that the appellants should have provided a ladder and guard-rail and should have given a warning to Cameron relating to use of the bunk bed. The judge made no finding concerning the warning submission and on appeal the respondent did not file a Notice of Contention seeking to support the decision below upon the basis that a warning was not given. That submission may therefore be disregarded.

30 The primary judge’s views on the question of whether a reasonable person would have taken precautions were expressed as follows:

“86 It cannot be said that, absent a guardrail and ladder, harm was probable each time a child climbed up and down [the bunk bed]. No doubt many such journeys could be made without incident. But the risk of a fall from height onto a hard floor remained, awaiting a misjudgement or mishap. Cameron was young. As a ten year old, he was just outside what may be termed ‘the vulnerable age bracket’ (five years to nine years) (Exhibit A: p 165). But he was, I believe, still vulnerable. It was highly predictable that a child on the top bunk may improvise in getting down, absent a ladder. Indeed, a child of his age, sitting on the side of the bed, chatting to his friend, would be likely to improvise in getting down when seated in that position. The alternative was to climb back up onto the bed, walk the length of it, and climb down the back. More often than not, a child could be expected to get down successfully. However, there was the real possibility of harm, as recognised by the mandatory Standard.

87 Section 5B(2)(b) requires a consideration of the likely seriousness of harm. Here the risk was of a fall from a reasonable height onto a hard surface. There was a significant risk that such a fall by a child may involve an injury to the head, as happened here. Accidents of that kind inevitably carry the risk of serious harm, again as happened here. A child may fall awkwardly or land on furniture or hit their head. Where they do so, serious consequences could be expected. In short, it was predictable to a reasonable person that a fall whilst descending from a bunk bed was likely to cause serious harm.

88 What was the burden of taking precautions to avoid the risk of harm (s 5B(2)(c)), and similar risks for which the person may be responsible (s 5C(a))? Here the bunk beds, on purchase, had guardrails and ladders, supplied by the manufacturer, which the Shaws regarded as unsatisfactory and which they removed. There was no specific evidence of the cost of refixing them or replacing them. The plaintiff submitted that the ladder could have been simply lashed to the tubular steel at no expense. The guardrail could have been refixed with a replacement bolt and washer (cf T 280). According to the plaintiff, this was a well known hazard which was considered sufficiently bad and important to justify a mandatory Australian Standard, requiring both a guardrail and a ladder (T 381). The defendants submitted that the burden, in the circumstances, was unreasonable (DS: p 24, para [57]).

89 Clearly there was some burden and some cost in taking the suggested precautions. That must be part of the calculus in determining whether the precautions were reasonable”.

31 In relation to the “the social utility of the activity that creates the risk of harm” (see s 5B(2)(d)), the judge described the submissions of counsel for the appellants to the effect that a finding adverse to the appellants would be one that would “impact significantly on our current society’s use of unpaid childcare” (quoted in Judgment [90]) as “extravagant” and went on to say:

“96 ... There were a number of solutions to the potential hazard. Obviously the ladder and guardrail were safety features which the Shaws chose to remove, rather than address the issues which they saw in relation to them. Various possibilities were identified, including the replacement of the bolt securing the guardrail, as well as lashing the ladder to prevent movement. I infer that a handyman could have dealt with the issue, without significant cost. And if that be thought onerous, it was open to the Shaws, especially when young children slept over (such as Cameron), to arrange for them to sleep in the lounge room on mattresses. That in fact was done when a number of children were sleeping over (T 285). In the circumstances, I believe that a reasonable person in the position of the Shaws would have taken such precautions (s 5B(1)(c))”.

32 The judge’s conclusions on causation (see s 5D quoted in [24] above) were expressed as follows:

“99 ... for the reasons given, and notwithstanding what had happened in the past, it was foreseeable that, absent a ladder, a child may improvise when climbing down from the top bunk. Joel, for instance, usually jumped down, as Mrs Shaw acknowledged. A child sitting on the edge of the bunk may well choose to get down another way, rather than climb back onto the bed, walk along to the end and then climb down. Such behaviour could not be described as unusual or unpredictable. Had a ladder been available, it would have been a simple matter for the child, sitting on the bed, to swing onto the ladder and descend. Alternatively, had a guardrail been available, and had the child slid off the bed, as he lowered himself down he could have held onto the guardrail to steady his descent. A hand hold would have been available, whereas none was available because it had been removed. But for the absence of one or other or both of these safeguards, the harm probably would not have occurred. Had there been a ladder, Cameron I believe would have used it. He said he was scared of jumping down. The bunk beds he had at home were fitted with ladders, which he used (T 17). Absent a ladder, but assuming a guardrail, it would have been a sensible and obvious thing to use the guardrail to lower himself to a position close to the floor. I am satisfied that factual causation has been demonstrated.

100 Is it appropriate that the scope of the negligent person’s liability extend to the harm so caused? The Australian Standard was introduced because it was recognised that bunk beds have a significant potential for serious harm to children, absent precautions. There is a need for precautions, amongst other things, in respect of the type of accident that occurred here, that is, a fall from a height. Here there was no evidence that the defendants were aware of the Australian Standard. However, the bunk beds they had purchased had guardrails and ladders. They were clearly provided for reasons of safety. As stated, when they encountered problems, they chose to remove these safety features rather than address the problems. And they did that whilst still permitting children, significantly younger than their own, to have access to the beds. The potential for accident to a young child climbing from the bed was both foreseeable and preventable.

101 In the description provided by Mrs Shaw, a bolt securing the guardrail on one of the two bunk beds stripped (T 263). She and her husband then removed both guardrails and both ladders. It would have been better, more logical, and certainly much safer, had they replaced the stripped bolt. The decision to dismantle the safety equipment on the beds rendered them potentially unsafe for young children of Cameron’s age, or less.

102 In these circumstances, I believe it is appropriate that the responsibilities of the defendants should extend to the harm so caused. I believe s 5D(1)(b) has been satisfied”.

Grounds of Appeal

33 By their Amended Notice of Appeal, the appellants confined their appeal grounds to the following:

“1. When addressing the provisions of s5B of the Civil Liability Act 2002, the trial judge did not identify correctly the relevant risk and erred in concluding that the risk was not insignificant pursuant to s5B(1)(b).

2. The trial judge erred when considering, pursuant to s5B(1)(c) of the Civil Liability Act, whether a reasonable person in the appellants’ position would have taken the precautions of installing a ladder and/or a guardrail.

3. The trial judge erred in finding that the absence of a ladder or guardrail on the bunk caused the harm to the respondent within the meaning of s5D(1)(a) of the Civil Liability Act”.

Duty of Care

34 The appellants did not deny that they owed a duty of care to Cameron. Nevertheless it is necessary to refer to the nature of the duty that the appellants owed Cameron to enable consideration of the issues of breach and causation raised by the appellants.

35 As Campbell JA pointed out in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 53 MVR 502, s 5B of the Act “is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising” (at [173]; see also [443] per Sackville AJA). Accordingly, before considering the requirements of s 5B (which are concerned with breach of duty: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; [2009] 239 CLR 420 at [13]), I turn to consider the nature of the duty of care that the appellants owed Cameron under the general law.

36 As the appellants were the occupiers of the premises at which Cameron was injured and as Cameron was a lawful entrant, the appellants owed to him a duty to take reasonable care to avoid a foreseeable risk of injury (Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1986-1987) 162 CLR 479 at 488). The existence of such a duty was reinforced by the fact that Cameron was a child whom the appellants had invited to stay overnight at their home and in respect of whom the appellants were accordingly temporary custodians (The Commonwealth of Australia v Introvigne [1982] HCA 40; (1981-1982) 150 CLR 258; St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185).

37 The extent of the obligation of an occupier is that of an occupier exercising reasonable care to prevent injury to an entrant “using reasonable care on his [the entrant’s] part for his own safety” (Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at 345-346 quoting Indermaur v Dames (1866) LR 1 CP 274 at 288). As indicated in the plurality judgment in Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, “the weight to be given to an expectation that the other [person to whom the duty is owed] will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case” (at [35]). In particular, “[t]he content of the occupier’s duty to exercise reasonable care for the safety of an invitee must, of course, vary 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” (ibid at [25] quoting Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 at 20).

38 Where 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. Youngsters obviously cannot be judged by adult standards ...” (John G Fleming, The Law of Torts, 9^th ed (1998) LBC Information Services at 508).

39 The respondent submitted that the relevant duty in the present case was a duty of care owed by the appellant to the class of persons of whom Cameron was one, that is, a class constituted by the substantial number of children who from time to time visited and stayed at the appellants’ home. In support of this submission, the respondent cited the reference by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979 - [1980] HCA 12; 1980) 146 CLR 40 at 47 to the foreseeability to the defendant of his or her conduct involving the “risk of injury to the plaintiff or to a class of persons including the plaintiff” and referred to other authorities to similar effect.

40 I do not accept this submission. As the reference above to the statement in Wyong Shire Council v Shirt demonstrates, a relevant duty of care is owed to a plaintiff or to a class. The concept of a duty being owed to a class of persons is relevant where the identity of the plaintiff is unknown to the defendant. It is not in my view relevant where, as here, the plaintiff is well known to the defendant and a reasonable person in the defendant’s position would have foreseen a risk of injury to the particular plaintiff. In that case the extent of the defendant’s duty and the question of whether it has been breached must be judged by reference to the relationship between the plaintiff and the defendant, and the defendant’s knowledge of the circumstances and characteristics of the plaintiff.

41 Accordingly in this case the extent of the appellants’ duty is to be determined by reference to their relationship with and knowledge of Cameron. The matters to be considered do not include the capabilities or likely conduct of other children falling within the class referred to in the respondent’s submissions. Such other children may, for example, have been younger or less agile than Cameron.

Whether Risk “Not Insignificant”: s 5B(1)(b)

42 The appellant submitted that the risk to be considered in this case was that “Cameron, during his stay at the appellants’ home, would climb onto the top bunk and try and get down by stepping on the chest of drawers and slip and fall and suffer a serious head injury” (Written Submissions [3]). As the respondent submitted however, this approach characterised the foreseeable risk too narrowly by referring to “the precise mechanism of the respondent’s fall and the precise injury which he suffered” (Written Submissions [5]).

43 Under the general law relating to the tort of negligence it is well established that it is unnecessary “for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable” (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] – [43]).

44 In Wyong Shire Council v Shirt, Mason J referred to a risk “which is not far-fetched or fanciful” as being “real and therefore foreseeable” (at 48). The requirement in s 5B(1)(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much.

45 If, as I consider to be appropriate, the risk is defined as one of Cameron falling and injuring himself whilst descending from the top bunk of the bed in question, that risk must in my view be regarded as one that was “not insignificant”. There is always some risk of injury when children climb up to and down from elevated surfaces. Even though Cameron was 10 years of age, I do not consider that the risk of him suffering a mishap in doing so was “insignificant”. Whether the risk of him doing so was sufficiently significant to require precautions to be taken against it occurring is an entirely different question to which I will come.

46 It is clear from the structure of his judgment that the primary judge considered that the contents of the ACCC publication and the Australian Standard to which it referred were relevant to his assessment of the risk of injury occurring in the use of the bunk bed (see [26] above). In my view the judge erred in this respect. Whether the requirement contained in s 5B(1)(b) was satisfied was to be determined by reference to the circumstances of which reasonable people in the position of the appellants would have been aware. The appellants were owners and occupiers of domestic premises in which they lived with their children. There was no evidence that the appellants were aware of the Australian Standard (Judgment [100] quoted in [32] above) and it cannot be assumed that reasonable people in their position would have had knowledge of the terms of the Australian Standard or of the ACCC publication referring to it (compare Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [187]). As a result it was not in my view appropriate to take into account the ACCC publication or the Australian Standard when considering whether the risk was “not insignificant”.

The Taking of Precautions: s 5B(1)(c)

47 I respectfully disagree with the primary judge’s conclusion (see paragraph [30] – [31] above) that reasonable persons in the position of the appellants would have taken precautions against the foreseeable risk of injury to Cameron by ensuring that the bunk bed had a ladder and guard-rail.

48 First, a duty of care “imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct” (RTA v Dederer at [18]). Accordingly, the fact that what was an undoubtedly tragic accident might, or even would, not have occurred if the bunk bed had had a ladder and guard-rail does not answer the question of whether there was a failure by the appellants to take reasonable care (see for example Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13]).

49 Secondly, in my view the “probability that harm would occur if care were not taken” here (see s 5B(2)(a)) was, as it was in RTA v Dederer, a very low one (at [61]). Cameron was a child of 10 years of age who appears to have been of at least normal strength and agility (see [23] above). Although he was a high spirited child, the evidence did not suggest he was other than in the range of normality in that respect (see [21], [23] above). Eight months after the accident he was measured by a doctor to be 1.436 metres in height. Even though he would have grown somewhat in the period between the accident and when he was measured, his height at the time of the accident would not have been much different to the height off the ground of the top of the mattress on the top bunk upon which he was sitting immediately before the accident occurred (see [11] above). As he was sitting on the edge of the bed with his legs dangling down and as the lower part of his legs can be assumed to have been at least 30 centimetres in length, his feet would only have had to drop little more than 1 metre for him to be standing safely upon the floor. The risk of a normal 10 year old child not being able safely to negotiate a descent from such a low height without using a guard-rail or ladder was in my view very small indeed.

50 Ordinarily one would expect a child of that age to descend simply by easing his or her backside off the bed and jumping the short distance to the floor. This was the way that Mrs Shaw saw the boys who used the top bunk get down from it (see [21] above). The bunk bed in question (and the other bed that the appellants owned) had been in use for more than six years without any apparent problem, despite, as Mrs Shaw said, there being many children frequently in the house (see [23] above).

51 Further, the risk of an accident occurring was considerably lessened by the ability of children to use the end of the bed to assist them to climb up on, or down from, the top bunk. Mrs Shaw said that the boys “always” used the end of the bed to climb up, although she later qualified this statement by saying that Joel “would just sort of lift himself up onto it” (see [22] above). Cameron said that on each occasion prior to the accident that he had been on the top bunk he had used the end of the bunk to get up and down (see [20] above). The horizontal rails and uprights at the end of the bed were an obvious and readily accessible aid to climbing up and down from the top bunk.

52 Reasonable people in the appellants’ position would in my view have considered that if, which they would have thought was unlikely, any normal 10 year old using the top bunk had any uncertainty about being unable safely to jump or ease him or herself down, that child would have used the bars at the end of the bed to guide his or her descent, as Cameron had done on previous occasions. The bars at the foot of the bed would have been no more than one to one and a half metres away from the reach of a child such as Cameron, even one who was sitting, as Cameron was, towards the head of the bed. The child would have to move only a short way sidewards from his or her position to enable him or her to grasp the bars.

53 Thirdly, the prospect of Cameron, in jumping down not much more than one metre, suffering as serious an injury as he did suffer, as distinct from an injury such as a sprained ankle or even broken leg or broken arm, would in my view have been seen by reasonable people in the appellants’ position as bordering on remote.

54 In these circumstances, I do not consider that reasonable persons in the position of the appellants would have responded to such risk as there was by installing a guard-rail on, and ladder to, the top bunk. The question of what precautions would have been appropriate to take to guard against any risk of harm if Cameron had been asked to sleep on the top bunk, if Cameron had been younger than 10 or if the top bunk had been higher does not arise in this case. Consideration of the magnitude of the risk and whether precautions would have been taken by reasonable people to deal with such risk must of necessity occur by reference to the particular circumstances of this case, including what the appellants knew of Cameron.

55 The respondent’s case is not assisted to any significant extent by the fact that the bunk bed, when acquired by the appellants, had a guard-rail and ladder that the appellants subsequently removed. Mrs Shaw gave explanations for their removal and non-repair or replacement (see [16] – [18] above) that I do not consider to be unreasonable in the context of the use of the bed by someone such as Cameron, at least where he was not asked to, and did not, sleep on the upper level.

56 It is a regrettable but inevitable fact of life that dangers still exist in homes, and other places, despite reasonable care having been taken by those in control of such places. The decision in Jones v Bartlett is an illustration of this. In that case an adult son of tenants of a house sustained injuries when he accidentally walked into an internal glass door. Despite the fact that the occupiers could have installed stronger glass that would not have shattered, the majority of the High Court held that the defendant occupiers had not been negligent in relation to the condition of the premises. One of the members of the majority, Gleeson CJ, at [24] quoted with approval the following oft-cited observations of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65:

“There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed" (at 74).

57 To similar effect were the observations of Gleeson CJ in Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [7] – [8] and Bryson JA in Doubleday v Kelly at [17].

58 As with the issue of whether there was a “not insignificant” risk (see [46] above), I respectfully disagree with the primary judge’s reliance upon the Australian Standard (see Judgment [88] quoted in [30] above). As there is no basis for expecting reasonable persons in the appellants’ position to have been aware of the contents of the Standard or of the ACCC publication that referred to it, I do not consider that those matters can be taken into account in assessing how reasonable persons would have responded to such risk as was foreseeable. The use that Gleeson CJ made in Jones v Bartlett of relevant Standards was different. In that case the glass door complied with the applicable Standards (namely those that were in force at the time the house was constructed). That fact was referred to by Gleeson CJ as supportive of the view that the occupiers did not act unreasonably in not ensuring that the glass was stronger (at [22] – [23]): This did not involve (as it would here) requiring defendants to comply with rules or guidelines of which they had no reason to be aware (compare at [187] per Gummow and Hayne JJ). Rather, it was the use of the documents as a means of confirming the reasonableness of the occupiers’ conduct.

59 The correct approach in considering what precautions a reasonable person would take in a case such as the present is in my view that described by the English Court of Appeal in Perry v Harris [2008] EWCA Civ 907. That case was concerned with a severe head injury suffered by an 11 year old boy on a children’s “bouncy castle”. The Court said:

“36. In considering the precautions that should reasonably have been taken in relation to the bouncy castle the judge had regard to the contents of the Health & Safety Information Sheet and the BIHA standard conditions of hire, which he commented were 'instructive'. We have concluded that there is force in Mr Eklund's submissions that the judge should not have attached significance to these documents. What he should have done was to identify the standard of care required in the circumstances of this case on the basis of the facts of which the defendant knew or ought to have known. These could not include the contents of documents that the defendant neither saw nor ought to have seen”.

60 In considering the precautions, if any, that a reasonable person would have taken to guard against the relevant risk of harm, s 5B(2)(c) requires “the burden of taking precautions to avoid the risk of harm” to be considered. The fact, as his Honour held, that precautions could here have been taken with only minimal expense (see [31] above) is a factor in favour of the respondent’s case. It is however not determinative and in my view is not of great significance in a case such as the present where the probability of harm occurring and the likelihood of any harm being serious (see ss 5B(2)(a) and (b) and the discussion above from [49] – [53]) were both very low.

61 The other factor mentioned in s 5B(2) is “the social utility of the activity that creates the risk of harm” (paragraph (d)). Contrary to the appellants’ submissions, this is not of significance in the present case. As pointed out by Ipp JA (with the concurrence of Spigelman CJ and Tobias JA) in Waverley Council v Ferreira, this paragraph “simply gives expression to the idea that some activities are more worth taking risks for than others” (at [50]). His Honour referred to the example given in the Review of the Law of Negligence Final Report, (September 2002) of “an emergency vehicle ... speeding an injured or sick person to hospital” (ibid). The present is far removed from such a situation. There was no circumstance in this case that would have justified the taking of a greater risk than that considered appropriate after taking into account the factors to which reference has been made above, principally, the probability of harm occurring, the probability of any injury being extremely serious and the absence of any significant burden of taking precautions.

62 It follows from the views that I have expressed above that the appellants did not fail to act in the manner in which reasonable people in their position would have acted. They accordingly did not breach the duty of care that they owed to Cameron and are not to blame for the tragic accident that occurred.

Causation

63 The question of whether any negligence of the appellants caused or materially contributed to Cameron’s injury does not arise as I have found that the appellants were not negligent. Nevertheless I express the view that if negligence is assumed to have been proved, there is no basis for departing from the primary judge’s conclusion on causation (as to which see [32] above). The position may have been different if the judge had accepted Joel’s account of what occurred. Joel’s evidence was that Cameron “dropped his feet on to the chest of the drawers and he stood up and then he said something which I am pretty sure he said ‘Geronimo’ and then he jumped down...” (see [15] above). If that had been what had occurred, the presence of a guard-rail and ladder may well not have made a difference.

64 However, on the version of the evidence that the judge accepted, Cameron was trying to use the chest of drawers to facilitate his descent. It may readily be inferred that in those circumstances Cameron would, as he said in his evidence he would have, used the ladder or at least held onto the guard-rail. Thus it would have been appropriate to conclude that it was more probable than not that, but for the ladder and guard-rail not being affixed to the bed, the accident would not have taken place (see Tabet v Gett [2010] HCA 12; (2010) 84 ALJR 292 at [111]).

65 If it be assumed that there was both negligence and “but for” causation (in the sense of negligence being a necessary condition of the occurrence of the harm: s 5D(1)(a)), there would in my view be no reason to conclude that the primary judge was in error in finding in respect of s 5D(1)(b) “that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused” (see Judgment [102] quoted in [32] above).

Costs of Amended Submissions

66 By letter dated 10 March 2010, the Registrar of this Court directed that the appellants file amended Written Submissions to overcome deficiencies that the Court perceived in the submissions that had earlier been filed. In accordance with that direction the appellants’ Written Submissions were amended. Their Notice of Appeal was also amended. In each case the amendments were extensive.

67 The respondent seeks an order that the appellants pay his costs of preparing amended submissions in response. The appellants do not resist an order that they pay, on a party and party basis, the respondent’s costs thrown away by reason of the amendment by the appellants of their Written Submissions and Notice of Appeal. Orders should be made in those terms. The respondent submitted that the orders should be for costs assessed on the indemnity basis. There is however no special circumstance that would in my view warrant an order for indemnity costs being made.

Restitution

68 On 11 August 2009 the appellants paid the amount of $30,000 to the respondent’s tutor pursuant to an order for interim payment made by the primary judge.

69 The appellants seek restitution of such part of that amount as the tutor did not spend for the benefit of the respondent before 23 June 2010. The appellants notified the respondent’s solicitor by a letter of 23 June 2010 that restitution would, to that extent, be sought if the appeal were successful. The appellants do not seek an order for the payment of interest on any part of the amount that they paid to the respondent’s tutor.

70 The appellants also seek leave to amend their Amended Notice of Appeal to make this claim for restitution.

71 As the respondent has not proffered any reason why the orders that the appellants seek should not be made, in my view such leave should be granted and an order made for restitution of such part of the amount of $30,000 as was not expended by the respondent’s tutor for the benefit of the respondent prior to receipt by the respondent’s solicitor of the letter dated 23 June 2010 written to him by the appellants’ solicitors.

Orders

72 For the reasons I have given I propose the following orders:

(1) Appeal allowed;

(2) Set aside Orders 1 and 2 made on 26 June 2009 and Order 1 and “Further Order” 1 made on 30 July 2009;

(3) Direct that judgment for the appellants be entered in the proceedings;

(4) Subject to Order (5), order the respondent to pay the appellants’ costs of the proceedings at first instance and on appeal;

(5) Order the appellants to pay on the ordinary basis the respondent’s costs thrown away by reason of the amendment by the appellants of their written submissions on appeal and Notice of Appeal;

(6) Grant leave to the appellants to amend their Amended Notice of Appeal to seek restitution, a Further Amended Notice of Appeal to be filed within 14 days of the date of this judgment;

(7) Order that the respondent pay to the appellants by way of partial restitution of the amount of $30,000 paid by the appellants to the respondent’s tutor on 11 August 2009, such part of that amount as the respondent’s tutor did not spend for the benefit of the respondent prior to the receipt by the respondent’s solicitor of the letter dated 23 June 2010 written to him by the appellants’ solicitors;

(8) Grant leave to the appellants to apply by notice of motion filed within 14 days of these orders, supported by affidavit and, if necessary, written submissions, for an order for payment by way of restitution of a fixed amount of money if agreement cannot be reached between the parties as to the amount referred to in Order (7); and

(9) The respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.

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AMENDMENTS:


26/07/2010 - Typographical error - Paragraph(s) [8]


LAST UPDATED:
26 July 2010