Shaw v Thomas [2010] NSWCA 169 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
21 June 2010
JUDGMENT DATE:
23 July 2010
JUDGMENT OF:
Beazley JA at 1; Tobias JA at 2; Macfarlan JA at 3
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.
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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Shaw v Thomas [2010] NSWCA 169
Case
[2010] NSWCA 169
Decision Date
CaseChat Overview and Summary
The appeal concerned the nature of the duty of care owed by occupiers to a ten-year-old boy who was sleeping over at their premises. The dispute arose after the boy sustained injuries while descending from the top bunk of a bed that lacked a guard-rail or ladder. The case was heard in the Court of Appeal of New South Wales, with Beazley, Tobias, and Macfarlan JJA presiding.
The central legal issues before the court were whether the risk of the boy injuring himself in the manner described was "not insignificant" within the meaning of the *Civil Liability Act 2002* (NSW), and whether reasonable persons in the position of the appellants would have installed a guard-rail or ladder on the bunk bed. The relevance of Australian Standards in assessing the reasonableness of the appellants' conduct was also a consideration.
The Court of Appeal found that the risk of injury was not "not insignificant" and that the appellants had not breached their duty of care. The court reasoned that the absence of a guard-rail or ladder on a standard bunk bed, particularly for a ten-year-old boy, did not constitute a failure to take reasonable precautions against a foreseeable risk of harm. The court allowed the appeal, setting aside the previous orders and directing that judgment be entered for the appellants. The appellants were generally ordered to pay the respondent's costs, with specific exceptions relating to amendments and restitution.
Orders
Orders of the court
(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.