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  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.