The award
On 26 June 2009, the Supreme Court of NSW awarded $853,396 to compensate a child for brain damage, medical expenses and future loss of earnings caused by falling from the top bunk of a bunk bed in a private home. The decision was reported as Thomas v Shaw [2009] NSWSC 510.
The facts
On 23 April 2004, Cameron Thomas (aged 10) was staying at his friend’s house (the Shaws’ house). He was sitting in the top bunk, legs over the side. He decided to slide down, he put one foot on a chest of drawers, he slipped and landed face down on the floor, fracturing his skull. The floor was a carpeted concrete slab. When purchased in 1997 the bunk bed had a tubular steel ladder and a guardrail, but the parents had removed them both about a year after purchase ‘because the steel ladder was slippery and the bolts of the guardrail had stripped out of the framework’. Therefore Cameron had no safe way of getting out of the top bunk, because 2 points for hand and feet grip had been removed.
The law
An occupier of premises is responsible for the safety of visitors and guests. This is known at law as a ‘duty of care to take precautions against a risk of harm’ and a breach results in a civil liability to pay compensation. In this case the absence of the ladder and guardrail meant that the bed did not comply with Australian/New Zealand Standard 4220, and therefore there was a breach of the duty of care. Fortunately the Shaws had public liability insurance, the insurer defended the claim and will pay the compensation awarded.
The lessons for backpacker operators
- Bunk beds must comply with safety standards (ladder and guardrail essential)
- Display a sign warning ‘Take Care when climbing in or out of top bunks’
- Use a soft underlay to carpets/ floor coverings in bed areas to cushion falls
- If an injury occurs, it will be covered by insurance. But a claim will mean that insurance premiums in the following years will increase with a ‘claims loading’, often of thousands of dollars
- If an injury occurs, take a written statement from each person who witnessed the accident, photographs, and a video. And ensure the injured person receives immediate medical treatment, for even the most minor injury. Keep this material in a safe place.