“Not insignificant” risk and reliance on Australian Standards in a domestic setting

Shaw v Thomas [2010] NSWCA 169

 

The plaintiff was aged 10 when he jumped down from a bunk bed, whilst at a friend’s house for a sleepover and sustained severe head injuries. The learned primary judge found there had been a breach of duty of care relying heavily on the Australian Standard AS4220:1994 (guard rail and ladder) for bunk beds, establishing that the risk was significant, by reference to the Australian Standard and awarded $853,396 in damages.

The Court of Appeal found in favour of the appellant against the plaintiff on the basis of the content of the duty of care, in particular, s.5B of the Civil Liability Act 2002 (NSW) and the meaning of “not insignificant” risk, together with s.5.D (causation). The corresponding wording of sections 9 and 11 of Civil Liability Act  2003 (Qld), is the same.

MACFARLAN JA delivered the leading judgment with whom their Honours Tobias and Beazley JA concurred.

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, 9th 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) 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)

The point of divergence was that the accident occurred in a domestic environment and there was no evidence the owners/occupiers were aware of the Australian Standard or that reasonable persons in their position would have been aware of it. Accordingly, the reliance on the Australian Standard to overcome the “insignificant risk” was considered inappropriate.

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)

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.

Brisbane Barrister – David Cormack

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