The Civil Liability Act 2002.
75 Cameron was a ten year old boy given into the charge of the Shaws on his first sleep over. The sleep over was in a room with bunk beds. Section 5B of the Civil Liability Act is in these terms:
" General principles
5B (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."
76 Section 5C(a) is as follows:
" 5C In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, ..."
77 The defendants, in helpful written submissions, addressed each limb of that section. Was the risk foreseeable? What did the defendants know, or what ought they to have known? The defendants drew attention to the following, amongst other matters (paraphrasing their arguments): (DS: p 18, paras [45]/[46])
Cameron had never climbed from the top bunk before via the chest of drawers.
The defendants had not seen him perform that manoeuvre.
There was no evidence that anyone had done it before.
Cameron had always used the end of the bunk bed to get up and down in the past.
There had never been an accident before.
Cameron's parents had not seen fit to check out the hazards in the house.
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).
79 Joel gave evidence that he jumped down from the top bunk. He also acknowledged using the chest of drawers to assist him in getting onto the bunk bed (T 298). He agreed that Cameron would have seen him do that (T 298). I accept, in the circumstances, that it was foreseeable that young children of Cameron's age would climb onto the top bunk and may improvise in getting down. The occupier ought to have known that there was the risk of harm, absent a ladder and guardrail.
80 Section 5B(1)(b) requires that the risk should not be insignificant. Here, according to the plaintiff, the risk was so significant that, since 2002, there had been a mandatory Australian Standard in respect of bunk beds. The publication by the Australian Competition and Consumer Commission of that Standard included these words: (Exhibit A: p 165)
" All bunk beds sold in Australia must meet the mandatory consumer product safety standard for bunk beds administered by the ACCC.
In place since 2002, this mandatory standard requires bunk beds sold in Australia to comply with the Australian/New Zealand Standard 4220: 1994, bunk beds (with variations).
Bunk beds have 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.
Studies show that in Australia at least 3850 bunk bed-related injuries to children under 15 are treated every year by hospital emergency departments or by general practitioners. Of these cases, about 390 are estimated to result in hospital admission. Almost half of all bunk bed injury cases are in the five-to nine-year age group and, of these, at least 180 need to be admitted to hospital.
The mandatory standard requires bunk beds to comply with various design, performance and marking provisions, including requirements to: ..."
81 The requirements of the Standard included guardrails and a ladder, as a means of access and egress. The expert who provided a report (and who was not required for cross examination), said this: (Exhibit A: p 141)
"21. 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."
82 The defendants submitted that "clearly the risk could be regarded as insignificant", because Cameron had never descended from the top bunk in this manner before, but had always used the end of the bunk to get up and down. There was no expectation that he would use the chest of drawers in the manner he did (DS: p 20/21, para [49]). However, I am satisfied that the risk was not insignificant.
83 The plaintiff, in these circumstances, suggested that a reasonable person in the position of the Shaws would have taken the following precautions:
First, provided a ladder.
Secondly, provided a guardrail.
Thirdly, warned Cameron of the danger and that he must not climb onto the bed or, if he did, he must descend over the back of the bunk.
84 The plaintiff's expert, having examined the bunk and having referred to the Australian Standard, stated the following conclusions: (Exhibit A: p 143/144)
"27. It is considered that the circumstances of the accident accord to the fact that at the time of the accident, Cameron would at most, have only 2 functional points of support available to him. This runs counter to the widespread principal that three functional points of support should have been available.
28. It is considered that if the ladder and guardrail had been installed at the time of the accident, then Cameron would have had three functional points of support available to him as he descended from the top bunk, at the time of the accident. Furthermore, it is considered that this would have made it far less likely that he would have (fallen) and may have obviated his need to place his foot on the chest of drawers, all together.
29. Based on the information that is currently available to me, it is considered that a ladder and guard rail had been installed prior to the accident, however they had been left off at the time of the accident.
30. The requirement to provide a guardrail and ladder for mattresses 800 mm above floor height is clearly enumerated in AS4220:1994."
85 Mrs Shaw, in cross examination, was asked whether, when the bolt securing the railing stripped, she considered replacing it with a larger bolt and washer. She said that she had not. As to the ladder, it was put to her that she could have bound or otherwise secured the ladder fitted to the bunk to prevent it wobbling or slipping. She acknowledged that she could have done so. However, her children were older and did not particularly need it (T 281). The Act requires that, in determining whether a reasonable person would have taken precautions against the risk of harm, the Court must consider the matters in s 5B(2), amongst other relevant matters. The defendants argued that, for many of the reasons already given, the probability of harm was extremely low. Cameron had never done this before. He had always descended using the end of the bed. There was no expectation that he would use the chest of drawers.
86 It cannot be said that, absent a guardrail and ladder, harm was probable each time a child climbed up and down. 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.
90 The last specific matter which the Act identifies is the social utility of the activity which creates the risk (s 5B(2)(d)). On that issue, the defendants said this: (DS: p 24)
"59. The Shaws were essentially providing Cameron's parents with unpaid childcare. Unpaid childcare plays an enormous role in our society. This is particularly so with the prevalence of the 'single parent' family and the 'two parent working' family. The extreme difficulties faced by many of these families are further magnified by the current economic climate. Of course Mrs Thomas was the sole working parent in Cameron's family with his father unable to work as a result of injuries and disabilities suffered in an accident. Quite simply, many families in the low socio-economic level and indeed the Thomas family would struggle to survive without the assistance of friends and neighbours providing unpaid childcare. There can be no doubt that a finding adverse to the Shaws is one which will impact significantly on our current society's use of unpaid childcare."
91 Were the Court to determine that the Shaws were liable, a safety audit of all premises and some form of induction would become necessary (DS: p 26, para [63]). The submissions asked the following rhetorical question: (DS: p 27)
"68. An acceptance of the plaintiff's case would have far reaching social implications. Would it mean the end of childhood sleep overs? Would it mean the end of unpaid childcare? Would it mean the end of childhood fun as we knew it?"
92 The plaintiff said that such claims were "nonsense". If one's children were put in the care of other parents, those parents had to be careful. They had to take reasonable precautions to avoid foreseeable risks of injury. If they had something dangerous on their premises, like a bunk bed without a guardrail or ladder, they had responsibilities. There is nothing wrong with sleep overs. What is wrong is the failure to take reasonable precautions in the circumstances identified by the Civil Liability Act (T 380).
93 The submission by the defendants is not unlike that made by the defendants in Doubleday v Kelly [2005] NSWCA 151, a case involving a child of eight years who used a trampoline, unsupervised, whilst wearing roller skates. Bryson JA, in a passage quoted by the defendants in their submissions, said this:
"[17] In a domestic situation, the response of a householder occupant to a foreseeable risk of injury to a child for whom the occupant is exercising parental responsibilities (as for a brief period Mrs Urquhart was) necessarily involves acceptance of many foreseeable risks of injury to the child. A house has much furniture and other effects which can cause injury, according to the way children use them; children could climb on tables and fall off, and they could tip furniture over. A household could be full of things which children might foreseeably break so as to cut themselves, drop on their feet, swallow or otherwise cause injury. See the comment in the judgment of the High Court in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19 at [36]. ..."
94 However, the judgment continued as follows:
"... Counsel for the appellants gave many examples, including the obvious risk that children might leave the premises and expose themselves to danger on the road outside. In his written submissions, counsel wrote: 'What were the appellants to do? Short of locking the children in the house (where, it must be remembered, all kinds of potential hazards are present), the children would have had to have been constantly monitored.' ... This was a contention in relation to supervision, which was not the ground on which the Trial Judge found negligence."
95 Bryson JA later made the following comment:
"[20] ... Counsel's reference to the supposed need to keep the children locked in the house was an unfortunately extravagant piece of advocacy; the problem could be solved by much simpler means."
96 Here, I believe, counsel's claims were likewise extravagant. 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)).