No more sleepovers, birthday parties, or babysitting…

Lexi says:

02:57pm | 26/06/09

Justice Kirby interprets and applies the law.  Politicians make the law.  Perhaps there should be a law created to deal with this issue, because as it stands, it is encouraging vexatious and opportunistic litigants.

What’s awful is that if this was a professional environment, the parents would be protected.  Instead they will probably become bankrupt - either paying or appealing, or possibly both.

Martin says:

03:12pm | 26/06/09

This is a very simplistic article. It does not address many of the issues required to prove negligence such as duty of care and remoteness. It is not hard to image that a bunk without a ladder is likely to pose a danger to a child. Thats why the parents were found negligent. Responsible parents do not have to worry. The SLA implies an assumption of risk against everyday type accidents, but it also requires that precautions be taken to avoid creating hazards. This article is 99% hype and not worth a second thought.

Peter_Griffin says:

03:21pm | 26/06/09

Surely any insurance companies public liability cover whould encompass this type of unfortunate event. I guess that is if you have insurance and at least while the insurance companies allow it.

Martin says:

03:30pm | 26/06/09

My previous comment contains a typo. It should say CLA as in Civil Liability Act. Every state has one and they are almost identical.

Jen says:

03:35pm | 26/06/09

Martin @ 3:12pm the only thing simplistic was your reponse. You missed the point being made in the article entirely.

Peter says:

03:47pm | 26/06/09

Are we talking about the same decision? 
If the Shaws had occupier’s liability insurance then it will cover them.  The insurer steps into the Shaw’s shoes (if you will) under the rule of subrogation. And they did.  The defendant’s solicitors, Moray & Agnew, do insurance work so I very much doubt the Shaws will make a payment of the award.  As for sky - is - falling - no - more - sleepovers prediction, well that is just a silly assertion. There has been cases involving occupiers liability for decades, with people falling from dodgy balcony’s, down poorly constructed stairs or through worn out floorboards.  Doesn’t stop people from going onto balconys, walk down a stair or two and walk across a wooden floored room.  The decision is well drafted.  There is nothing unusual about a court preferring one person’s evidence over anothers.  It happens, oh, every day of the week in court cases.  This decision doesn’t make new law, merely applies longstanding principles of tort law.  The pay out is not excessive given the amount of care needed.  It would be nice if there was an reasoned analysis of a decision for a change.

MR says:

04:04pm | 26/06/09

It should also be remembered that, under law, the decision of whether the parents were negligent is entirely separate to the damages award - which is based on the level of injury sustained.

Once it was decided that the parents had been negligent in allowing the child to use a bunk bed without a ladder the amount of the payout became nothing more than a function of how severe the child’s injuries were. 

The only real question under dispute here is whether it is legal negligence to put a young child on a bunk bed that has no ladder.

Jacqueline Pascarl says:

04:07pm | 26/06/09

Whatever happened to personal responsibility? Kid falls off a swing at the park, not a defective piece of equipment - a swing. Parents sue local council due to broken arm. As a parent, I simply check where my kids are going to staying during a sleepover - it’s your own responsiblity to ensure the circumstances and surroundings YOU expose your children to are as safe as you deem fit.  If they are not, then simply don’t avail yourself of these arrangements. Warn your children not to skylark and be stupid, to have manners and use them, tell them about consequences and let them learn them. How can our kids learn life lessons when we over protect them and blame others everytime something goes wrong. A leads to B leads to C. Tragic accidents happen. Accidents are different from negligence although with a sleepover happening tonight, I’m checking my insurance policies and drafting a disclaimer for the parents to sign.

Rorie says:

04:11pm | 26/06/09

I think party invites you buy at the supermarket should also have waivers printed on them.

Helen says:

04:38pm | 26/06/09

After reading the Judgement, I think it is a fair decision.
http://www.lawlink.nsw.gov.au/scjudgments/2009nswsc.nsf/6ccf7431c546464bca2570e6001a45d2/b22d4e22862aaa31ca2575d00001bf11?OpenDocument

This was more than just a minor injury and perhaps if the safety rail and ladder had not been removed this incident may not have happened.

Peter says:

04:42pm | 26/06/09

Accidents and negligence are two separate things,  In this case the finding was negligence.  And on good grounds.  Is having a bunk bed without guard rails and a ladder to get to the top bunk responsible or reasonable?  Reasonable to require a a 7 year old to use an adjacent chest of drawers to get into the bunk??  No forseeability of injury from a fall there?  Jacqueline’s panacea of telling a 7 year old not to skylark and to have manners (whatever that vague term means) has an otherworldly aspect to it.  It would have been negligence 30 years ago, 20 years and 10 years ago.  Suffering lesions on the brain (brain injury) which prevents the plaintiff from playing sport, which has affected his personality and requires him to get long term care is does not fall into any “life lessons” I am familiar with, with perhaps the possible exception the way the Spartans treated their children.  As for getting parents to sign a disclaimer, I wouldn’t advise it.  It would take a half way decent counsel 10 minutes to shred it.  The first question might go something like this “What dangers do you know about your house that prompted you to have your guests sign a disclaimer?”  followed by “Why didn’t you tell your guests about these dangers?”  All downhill from there… Unless you are trying to be facitous.  And that goes down a treat in a court case.  The barrister will laugh so hard he will forget his cross examination.  Yeah right!

Julie Coker-Godson says:

05:05pm | 26/06/09

Helen @4.38pm:  Did the Judgement contain His Lordship’s Reasons for Decision?  That would set out precisely why he came to his decision in this case.  This article doesn’t specifically set out the type and extent of the injuries this boy suffered and the continuing disabilities he continues to suffer from.  I would be very interested in seeing how he apportioned the damages and how much of that included contributory negligence, medicals, pain and suffering and general damages together with future loss.  In my 20 years legal experience I have only known of large damages being awarded in severe cases but as stated above I didn’t see too much detail of that in this article.

Jacqueline says:

05:15pm | 26/06/09

Peter has obviously had an irony bypass - but no, it’s not reasonable to ask anyone to mount a bunk bed from a chest of drawers - obviously, this young boy’s injuries and long term incapacitation is horrific.  But on another note, we are responsible to some great extent, for the situations and places to which we expose our children. Take a deep breath and realised how tragic it is that this young boy was injured, but at the same time it is reasonable for us all to begin to look at how we all instruct our children.

Ben Payne says:

05:22pm | 26/06/09

And after all the lawyers have taken their fees and commissions, they can take him down to McDonalds for a happy meal with the change.

John says:

06:14pm | 26/06/09

According to the article, the boy was sleeping in the bottom bunk and climbed to the top bunk to talk to his friend.  So it seems the parents allocated the bottom bunk for the guest child (who then climbed to the top bunk).

Does this mean that, to avoid being made bankrupt, I now have to erect a 3 metre tall fence at the front of my property in case a child runs in chasing a football and falls over on my concrete driveway?  Otherwise the parents could find me negligent because there are no warning signs (WARNING: Concrete ahead. Falling on concrete can cause injuries.) or guard rails preventing access.  And because of that fall, my child can no longer be a professional footballer, so that’ll be $3 mill in lost earnings, thanks.

The injuries suffered by that poor boy are horrific and I wouldn’t wish them on anyone - but this seems to set a precedent where litigious parents can now sue for negligence for what used to be called an accident.

cc says:

07:40pm | 26/06/09

LOL When I read the headline, I thought this article was about Michael Jackson.

Ian says:

10:16am | 27/06/09

I agree with earlier comments from Martin and Peter.

I realise judiciary bashing is a tabloid staple, but this opinion piece is seriously flawed.

1) The Shaw family’s insurance company will pay, so you can disregard all the emotive nonsense about the Shaws having to fund Cameron Thomas;

2) The case is of limited precedential value because the parents had removed the guard rail and ladder, such that the bed no longer complied with mandatory safety standards.

It’s never desirable that such cases should make their way to court, but in the circumstances, I don’t think the judgment is that unreasonable.

The journalist’s interpretation of the judgment leaves a lot to be desired, however.

Ben says:

01:47pm | 28/06/09

C’mon people, the boy fell from the bunk that he had climbed several times before his fall. It was nobody’s fault.

Its a technicality that the Shaw’s were found to be negligent because they removed the ladder. The boy could have climbed down the horizontal rails at the end of the bed (as had been done successfully before).

Where is the common sense in this judgment?

Peter says:

07:24pm | 28/06/09

While I think the decision is solid I think there is a fair chance it will be appealed.

Michael says:

11:31pm | 21/07/09

In this case, the judge may have well believed the Shaws with their totally different version of what happened, the child shouting “Geronimo” before slipping from the drawers. Who`s got the better evidence?

Another thing: with the insurers stepping in, judges are tempted to award those large amounts, they would most likely not do it if every defendant would necessarily get bankrupt.