Thomas v Shaw - [2009] NSWSC 510

CITATION: Thomas v Shaw [2009] NSWSC 510

HEARING DATE(S): 16/2/09 - 20/2/09
30/3/09

JUDGMENT DATE :
26 June 2009

JURISDICTION: Common Law

JUDGMENT OF: Kirby J

DECISION: 1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below.
2. The defendants should pay the plaintiff’s costs.
3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest.

CATCHWORDS: CIVIL LAW - NEGLIGENCE - child aged 10 on sleep over - fall from bunk bed - no guardrail or ladder - mandatory Australian Standard requiring guardrail and ladder - Civil Liability Act 2002 - accident foreseeable and preventable - causation established - DAMAGES - personal injury - issue whether child suffering from organic brain damage or psychiatric illness - significant injury - 50% of worst case - drop out of school - loss of earning capacity - other losses.

LEGISLATION CITED: Civil Liability Act 2002
Evidence Act 1995
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Doubleday v Kelly [2005] NSWCA 151
Port Stephens Council v Theodorakakis [2006] NSWCA 70
MD v Sydney South West Area Health Service [2009] NSWDC 22
Kallouf v Middis [2008] NSWCA 61
Nominal Defendant v Gardikiotis (1995) 186 CLR 49
Campbell v Nangle (1985) 40 SASR 161
Ren v Mukerjee [1996] ACTSC 119
Pellow v NRMA & Anor [2004] NSWSC 152

PARTIES: Cameron Brock Thomas
(by his tutor Doreen Thomas) (Pl)
William Richard Shaw (1st Def)
Susan Joyce Shaw (2nd Def)

FILE NUMBER(S): SC 2008/20166

COUNSEL: R Royle (Pl)
N Polin (Defs)

SOLICITORS: Slater & Gordon (Pl)
Moray & Agnew (Defs)

Cameron Brock THOMAS (by his tutor Christine Thomas)

-v-

William Richard SHAW and Susan SHAW

(20166/2008)

I N D E X

1. LIABILITY Para No.

The action. 1

Background. 8

Cameron’s account. 14

The evidence of Joel. 37

Other relevant evidence. 50

Evaluation. 66

The Civil Liability Act 2002. 75

Causation. 97

Obvious risks. 103

Contributory negligence. 107

Background. 111

Cameron before the accident. 116

The immediate impact. 125

Changes in Cameron’s personality. 135

Treatment undertaken. 136

Defendants’ medical reports. 174

The reports of Associate Professor Reid and Dr Roberts. 187

The concurrent evidence of Associate Professor Reid and Dr Roberts. 193

Reports of Associate Professor Quadrio and Dr Lee. 227

Concurrent evidence of Associate Professor Quadrio and Dr Lee. 243

Award for non economic loss. 270

Economic loss. 280

Future superannuation. 293

Out of pocket expenses. 294

Future out of pocket expenses. 295

Past care. 304

Future care. 308

Funds management. 312

Orders. 315

**********

1. LIABILITY

The action.

1 KIRBY J: Cameron Brock Thomas (“Cameron”) (the plaintiff), by his tutor, claims damages against William and Susan Shaw in respect of serious head injuries sustained in a fall on 23 April 2004. Cameron was then ten years old. He had been staying with his friend, Joel Shaw, at Joel’s home at Broadmeadow Esplanade, Bilambil Heights, on the north coast of New…

Grounds of appeal

[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.

Continue reading Thomas v Shaw

Details

AGLC: Thomas v Shaw [2009] NSWSC 510
Case: [2009] NSWSC 510
Decision Date: 26 June 2009

CaseChat Overview and Summary

Thomas brought a claim against Shaw for injuries sustained by Thomas' son, a ten-year-old child, who fell from a bunk bed during a sleepover at Shaw's home. The bunk bed did not have a guardrail or ladder, despite the requirement of an Australian Standard for such safety measures. The Federal Circuit and Family Court of Australia was tasked with determining liability and damages in this negligence action.

The court considered whether Shaw breached the duty of care owed to the child by not installing the guardrail and ladder, whether the accident was foreseeable and preventable, and whether causation was established. It also assessed the extent of the child's injuries and the resulting damages. The court found that Shaw breached the duty of care by not complying with the Australian Standard, and that the accident was foreseeable and preventable. The child's injuries, which included significant physical harm and potential organic brain damage or psychiatric illness, were deemed to have been caused by the fall.

The court awarded damages to the child, recognising the severity of the injuries and their impact on the child's life, including the potential for a 50% reduction in the worst-case scenario. The child's withdrawal from school and the consequent loss of earning capacity were also considered in the damages assessment. The court ordered Shaw to pay the awarded damages to Thomas for the injuries sustained by the child.

Orders