Australia: At The Courthouse

Last Updated: 16 September 2009
Article by James Bruun


This case attracted national media coverage and was declared by some as the end of the childhood 'sleepover'. Thomas, the plaintiff, successfully sued Mr and Mrs Shaw for damages for a serious head injury sustained when he fell from a bunk bed while visiting their home in April 2004.

Key Points:

  • Parents and carers must take reasonable precautions to avoid foreseeable risk of injury to children in their care.
  • The defence of contributory negligence will often not succeed in cases involving children.

The claimant was 10 years old at the time. The bunk bed from which he fell did not have a guard rail or ladder. The Shaws gave evidence that the bunk bed did have a guard rail and ladder when first purchased. However, the guard rail broke within the first year of use and the design of the ladder was apparently poor and kept slipping off and so the Shaws decided to remove it.

It was agreed that Thomas elected to step down from the bunk bed using a chest of drawers next to the bed. However, there was a dispute as to whether he deliberately jumped off the chest of drawers (as alleged by the Shaws) or whether he simply slipped and fell. Justice Kirby accepted that it was more likely Thomas slipped and fell.

The Shaws submitted that the absence of a ladder or guard rail was not causative of the incident and that any risk this created for Thomas could be regarded as insignificant. They submitted that Thomas had never descended from the top bunk in this manner before and usually used the end of the bunk.

Justice Kirby held that it was foreseeable that, absent a ladder, a child could improvise when climbing down from a top bunk. Such behaviour could not be described as unusual or unpredictable. It would have been a simple matter for the child, sitting on the bed, to climb down a ladder if one had been available.

Justice Kirby also considered the social utility of the activity which created the risk under section 5B(2) of the Civil Liability Act 2002 (NSW). The Shaws submitted that were the Court to determine that they were liable, a safety audit of all of the premises in Australia would become necessary. The Shaws argued that an acceptance of Thomas' case would have far reaching social implications as it could mean the end of childhood sleepovers.

Thomas argued that such claims were nonsense and that if a child is put in the care of other parents, those parents had to be careful. They had to take reasonable precautions to avoid foreseeable risks of injuries.

The judge found that the Shaws were negligent on the basis that a reasonable person in the position of the Shaws would have taken precautions by providing a ladder and a guard rail.

The Shaws went on to plead contributory negligence and argued that any damages awarded should be significantly discounted. Thomas submitted that no such finding should be made and that Thomas' age was relevant (referring to Doubleday v Kelly [2005] NSWCA 151 which was a case involving an eight year old child who used a trampoline unsupervised while wearing roller skates). Justice Kirby accepted Thomas' submission and made no discount for contributory negligence.

Thomas was awarded damages of $853,396.


In this case the Court considered the 'ruling principle' governing the measure of damages for breach of contract.

Key Point:

  • Where a party sustains a loss from a breach of contract, he or she is to be placed in the same position, with regard to damages, as if the contract had been performed.

Mr Willshee engaged Westcourt to construct a house. Three and a half years after construction was completed, the limestone cladding started to crumble, and large holes appeared in the blocks.

Mr Willshee claimed that Westcourt breached the contract by using inferior or second quality limestone.

At trial the Court was satisfied that it was an implied term of the contract that the limestone the defendant was to supply and use in the construction of the house was to be of 'high quality'.

Mr Willshee's claim succeeded at trial but his damages reflected only the cost of cleaning and sealing the limestone plus some repainting necessitated by the cleaning and sealing work. He was awarded the amount of $9,290 plus interest.

The cost to remove the entire limestone cladding of the house and replace it with high quality limestone blocks was assessed as $257,977.91. However, the trial judge held this to be an unreasonable measure of damages given that it involved demolishing the entire external cladding of the house when the structural integrity of the house was sound.

Mr Willshee appealed claiming an entitlement to damages for the full amount on the basis that this was the proper amount required to put him in the position, with regard to damages, as if the contract had been properly performed.

The Court of Appeal upheld the finding that Westcourt was in breach of contract to supply and use high quality limestone.

The Court of Appeal held that Mr Willshee was entitled to the amount of money required to put him in the position in which he would have been had his house been constructed using high quality limestone. Damages were awarded for the cost of rectification work in the amount of $257,977.91 plus the sum previously awarded by the trial judge and $5,000 in general damages for the stress and inconvenience arising from the breach of the building contract.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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