Law Assignment

Part A the Case Note

Introduction

This paper is aimed to analyze the case and the court's decision on the case of Shaw Vs Thomas, in which the law which may apply will be analyzed. And a briefing memorandum and case note of a recent decision on the issue will be provided to John. Furthermore, this paper outlines for John how the law in NSW is likely to be applied where negligence is claimed against a defendant for failing to protect a 12 year old against harm whilst in his or her care. In doing so, relevant cases and legislative provisions, which may apply, have been identified and discussed.

The Case

The case that has been discussed here is Shaw v Thomas (2010) NSWCA 169. The case is about the negligence and the negligence law in New South Wales. This case was filed between Cameron Thomas, the plaintiff, and Mr. and Mrs. Shaw, the defendants in the year 2004, on 23rd April. The plaintiff has to face serious injuries in his head that includes a skull fracture when he fell down during going down from the bunk bed's top level at the house of defendants (Shaw v Thomas, 2010). Cameron Thomas was not sleeping on the bed's top bunk but had reached on it for having a talk with his companion, the son of defendants. The related bunk bed had been observed to be not above 1.4 meter high from floor to bed's top. The floor was carpeted and concrete. When the accident took place, Cameron Thomas was 10 years old.

The Court and the Decisions of the Court

Decision of District Court

Kirby J, District Court's primary judge for proceedings, identified on 26th June 2009 that there was a negligent behavior from the side of defendants and that the injuries to plaintiff had been the result of defendant's negligent behavior. It's acknowledged that it's predictable that the children of the age of plaintiff might get on the bed's top bunk and may extemporize in coming back on the floor, such that, as occupiers, the defendants must have understood that there's a danger of damage in absence of a guard rail and ladder (Law of Negligence Review, 2002).

Kirby J depended upon required standards of Australia being set up since 2002 regarding bed's bunk that needed ladders and guardrails, as demonstrating the danger of harm was “significant”, as needed by Act's section 5B(1)(b). It's detained that a sensible individual in the place of the Mr. and Mrs. Shaw might have taken safety measures for consideration of this type of danger by, for instance, arrangement of a specialist for fixing and securing the guardrail and ladder to the right bunk. Kirby J honored the harms of Cameron Thomas in the measure of $853,396.

Decision of NSW Appeal Court

Macfarlan JA gave the common decision of the Appeal Court of NSW. Mr. and Mrs. Shaw, the defending party, affirmed that the judge had made a mistake in application of the Act's section 5B by not effectively distinguishing the applicable ...