The end of childhood as we know it
A disturbing piece of sensationalist fluff was published on Five Star’s News Ltd blog on Friday. Responding to a fairly straightforward application of negligence law in Thomas v Shaw [2009] NSWSC 510, Tory Maguire predicted THE END OF CHILDHOOD AS WE KNOW IT:
No more sleepovers, birthday parties, or babysitting…
Some of the most vivid memories I have from childhood involved sleepovers at friends houses or having my friends come and stay.
Those moments, when you experience for the first time what it’s like to be without your own parents, and are expected to fit in with families with totally different habits to your own, are incredibly important in childhood development.
But a NSW court has this afternoon put an end to the practice – awarding $853,396 in damages to a boy who fell from a bunk-bed at a friends house. The friend’s parents have to pay.
What sane parent now will be game to let their friends kids so much as place a foot over the threshold of their house, knowing they could be liable for such and extraordinary amount of money.
Occupier’s liability is hardly new, and it’s why most homeowners have insurance covering it. It appears that the Shaws did, and it seems unlikely that they will have to pay the judgment out of their own pockets.
This isn’t a case where an unforeseeable “accident” happened and the other parents were being unfairly made to pay. It is a case where they took on the obligation to care for the child overnight and negligently failed to properly do so. They removed the rail from the top bunk and the ladder (contrary to the relevant Australian Standard). And the child received a devastating, permanent injury as a result.
As with most “OMG THE COURTS HAVE GONE MAD” stories, actual perusal of the facts demonstrates that the decision was both (a) reasonable and (b) what most people would expect. Of course the occupier is liable to a visitor for foreseeably dangerous conditions in their property – who else is responsible? Who else has the ability to remedy those conditions?
In fact, the Judge directly anticipates’ Tory’s hyperbolic fears, and responds to them:
The [Defendants' counsel's] 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).
…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)).
You’d think that Tory would have at least reported the content of the Judge’s consideration of her objections, rather than simply ignoring it.
If this were a serious piece, which of course it isn’t. It’s simply another entry in the long-running series of media beatups designed to give punters’ outrage glands a nice workout and which ultimately benefit no-one but insurance companies. That’s how we ended up with a system where someone can negligently injure you but if the injury is below, say, 5% permanent total body impairment (say a loss of a finger or your sense of taste or smell), well, bad luck sunshine.
Is anyone really outraged at the principle of a negligent person being made to compensate the person injured by their negligence? I doubt it.
If parents suddenly stop letting their children have “sleepovers”, it won’t be because of this decision.
If that happens, which seems unlikely, there will only be one realistic explanation – the relentless sensationalising of the dangers by hacks like Ms Maguire.
“It is a case where they took on the obligation to care for the child overnight and negligently failed to properly do so. They removed the rail from the top bunk and the ladder (contrary to the relevant Australian Standard). And the child received a devastating, permanent injury as a result.”
Spoken like a true lawyer. What obligations did the child have in informing the parents in the household that he wished to disembark from said structure?? Did he make all reasonable efforts to communicate his desire for assistance? Had Cameron stayed in the bed and requested assistance, no accident would have occured. He didn’t roll out of the bed, he actively sought to disembark from it in a non-approved manner.
See how ridiculous this all gets when people start the legal formalities? Society is over lawyered.
baldrick, stay quiet if you don’t understand what this is about. The parents who owned the house had an obligation at law to make sure it was safe for others. They failed. At a non-legal level, though, they were the adults in the situation. Cameron is a child. The adults ought to have been responsible. It isn’t hard to follow and it isn’t controversial.
“What obligations did the child have in informing the parents in the household that he wished to disembark from said structure??”
You tell us. You’re the one trying to argue this decision was incorrect somehow.
“See how ridiculous this all gets when people start the legal formalities?”
No.
Having 3 kids – 9, 14 and 18 — there’s not too many weekends where there isn’t a sleepover at our place, always on the floor in the loungeroom and always with the hallway light left on so they can find their way around the house if necessary….It’s pretty much common sense really.
“Occupier’s liability is hardly new, and it’s why most homeowners have insurance covering it.”
Exactly, I think mine is worth $30 million. I have an only child so we’re always game to let his friends come fopr sleep overs.
“You’d think that Tory would have at least reported the content of the Judge’s consideration of her objections, rather than simply ignoring it.”
But then she’d have nothing to write about!
“See how ridiculous this all gets when people start the legal formalities?”
I can see how ridiculous Tory’s article is. It’s bullshit basically!
Yes. The child had, by all accounts, a quite severe brain injury with base of skull fracture, extradural haematoma, and brain contusion, with long-lasting disabilities including ongoing pain and major issues as a result of frontal area brain damage, affecting mainly personality and executive function. The largest part of the damages were for future economic loss.
Clementine Ford’s piece is far worse than this one – she alluded to this as akin to a “scrape”, as a “normal childhood injury”, that the parents coddled him and encouraged him to “pretend” and be “precious”, that his brain injury symptoms were of “emotional” origin, and this: “What we should be doing when things like this happen is give them a cuddle and then tell them to run outside and play to forget about it.”
At least the dangerous sleepovers at Neverland Ranch are now a thing of the past.
Again by omission the reporter has ruined what would otherwise have been a fairly valid point. Why do it when it simply gives detractors ammunition to destroy your argument?
The ruling WILL mean the end of sleepovers for kids of poorer parents who dont have insurance because they cant afford it. The ruling will also increase the cost of insurance thus compounding on the number of kids affected. And affecting those most pinched for cash in our society.
Kids will hurt themselves, end of story. This farcical ruling will just punish the poor kids again. What a future we make for our selves.
fred p your wrong. You obviously are not smart enough to understand baldricks point. I do hope you enjoy paying your extra insurance however and I also wonder when the straw will come that breaks your back with regard to insurance affordability. Then you might learn to appreciate things from others viewpoints.
“far worse than this one”
What’s your problem with this one?
“What’s your problem with this one?”
Same as yours, Jeremy. It’s ignorant panicky hand-flailing.
“This farcical ruling will just punish the poor kids again.”
It’s not farcical, the kid was severley injured in what was an easily preventable accident. Before we go on about poor parents do we even know what the income of the parents involved is?
RobJ the ruling is farcical. Kids will be kids and boys by their very nature are risk takers. Nature compensates for this by increasing the number of boys that are born. In mammals this amounts to about 50.5 % of births being male. Some boys love to be boys and grow up to be adrenalin junkies, they do dangerous things simply for the thrill of it. They start young and among the list of things that they do is jump from dangerous places and this included bunk beds. We have taken much of the fun from our kids lives already and for some of us the fun of life is in bruises and skinned knees. My son for one does not want to live in a ball of bubble wrap.
The ruling will affect poor parents and their children. Why? Because they cant afford insurance and therefor cant afford sleep overs. What has this to do with the income of the parents involved?
@Lauredhel – ah! You meant Tory’s. I misread your comment for some reason.
“ah! You meant Tory’s. I misread your comment for some reason.”
Delicious deictic ambiguity ahoy! [/minorlinguistgasm]
Fred P at 2 – I understand all too well what its about as the majority of my job is risk assessment and legal compliance with the myriad of state and federal regulatory laws in this country within an engineering context. What I object to is the constant legalising of our society – law firms advertising and aggresively pursuing work telling people they can get compensation if they are injured. People see the $$ and go to court. People who should win Darwin awards get cash from well meaning people who just overlooked a certain aspect or did/could not forsee the method of injury. This is why we have ridiculous warnings on consumer products.
Do we all need to get a formal risk assessment done for our own houses now?? The insurance industry gets constant business because people are afraid of being sued!
And in this case there were two versions of the story of how the child got the injury. I have no doubt that one or both of the children were coached by lawyers in how to present their story to give them the best opportunity of suing/not being sued. Bet these two families are not friends anymore.
“The ruling WILL mean the end of sleepovers for kids of poorer parents who dont have insurance because they cant afford it.”
No, it won’t. How will you know anyway? Is there some kind of register where you will be able to check the rate at which sleepovers are occurring in the community? The average tabloid reader is bombarded with these “OMG TEH COURTS HAVE GONE MAD” articles and will have forgotten all about this one. In any case, if you can’t afford the insurance, you can’t afford the house. Relative to average mortgage payments, it doesn’t cost that much.
“fred p your wrong. You obviously are not smart enough to understand baldricks point. I do hope you enjoy paying your extra insurance however and I also wonder when the straw will come that breaks your back with regard to insurance affordability. Then you might learn to appreciate things from others viewpoints.”
The grammar- and syntax-challenged telling me how smart I am. That’s useful. Thanks. You have an inflated opinion of your own intelligence. No point bringing up the cost of insurance, as it is irrelevant to the discussion we are having which is about whether or not the judge made the correct decision in this case. The potential increase in the cost of insurance wasn’t something the judge was entitled to consider in coming to his decision, was it?
It appears to me that you feel you have a right to “affordable” housing insurance which trumps that of plaintiffs to be appropriately compensated in situations like those in the case we are discussing. Just don’t assume that everyone else is as self-interested as you are. I, for one, am not.
Consider yourself a willing victim of hysteria-mongering tabloid columnists.
Anytime you want to address the topic and try to demonstrate where the judge went wrong in deciding the case in favour of the plaintiff, please feel free.
“The average tabloid reader is bombarded with these “OMG TEH COURTS HAVE GONE MAD” articles and will have forgotten all about this one within a few weeks” is what I meant to say…
“What I object to is the constant legalising of our society – law firms advertising and aggresively pursuing work telling people they can get compensation if they are injured.”
Why shouldn’t people be compensated if someone’s negligence causes them injury?
“People who should win Darwin awards get cash from well meaning people who just overlooked a certain aspect or did/could not forsee the method of injury.”
Um, no – foreseeability is an essential component of the tort of negligence. If it’s not reasonably foreseeable, it’s not negligent.
“This is why we have ridiculous warnings on consumer products.”
ANNOUNCER: Warning: tickets not to be taken internally.
HOMER: Because of me they have a warning!
No, not really. What “ridiculous warnings” do you have in mind? Example please. Some of them aren’t as ridiculous as they at first appear – warnings about traces of nuts, for example, are important in avoiding kids dying from anaphylactic shock. Silly warnings have nothing to do with the courts, and are more to do with corporations believing bullshit spin like this article.
Fred -
““The average tabloid reader is bombarded with these “OMG TEH COURTS HAVE GONE MAD” articles and will have forgotten all about this one within a few weeks” is what I meant to say…”
They’ll have forgotten the specifics, but they’ll remember the overall message of OMG TEH COURTS HAVE GONE MAD. Which is unfortunate, because they haven’t.
I would be horrified if my kids went to a sleepover and I found out they’d been allowed to sleep in a top bunk without a guard rail and ladder. It’s ridiculous to try to turn this into a “lawyers gone wild” story. The kid didn’t trip over while playing soccer, he had a serious accident that any half-intelligent person could have seen coming a mile away.
I’m disappointed with Clementine Ford. She’s usually more on the ball.
He was attempting to get off a bunk bed without assistance or an authorised access route. The other child in the room made accusations of ‘skylarking’…
He clearly did not display best safe practice. But hey, niether did the parents…how about we all sue each others pants off and make a motza! Cash for lawyers all round bitches!!!
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