In brief - NSW Court of Appeal sets aside trial judge's
In Metaxoulis v McDonald's Australia Ltd, the NSW
Court of Appeal set aside the trial judge's findings and
established that McDonald's was liable for not adequately
securing its playground area, which resulted in a third party
"rescuer" becoming injured. The Court of Appeal also held
that the trial judge's assessment of damages was too low.
Rescuer suffers harm while freeing child from playground
Metaxoulis v McDonald's" Australia Ltd  NSWCA 95
involved an incident on 31 July 2010, when a young child became
stuck on playground equipment at a McDonald's in Castle Hill,
Sydney. The plaintiff, a chef by trade, went to rescue the boy, but
after handing over the child to his parents, slipped off the
equipment and suffered minor rib injury and aggravation of a
pre-existing left wrist injury.
Trial judge finds that McDonald's not liable for harm
suffered by rescuer
The trial judge, Gibb DCJ, considered that the plaintiff had
sustained an injury equivalent to 26% of a most extreme case, which
equated to $32,000 for non-economic loss. Her Honour accepted that
the plaintiff was unable to work for a period of roughly three
months post incident, but based future economic loss on the
plaintiff's need to take time off work for surgery only. Her
Honour also rejected the plaintiff's claim for domestic
assistance at commercial rates.
Although Judge Gibb assessed the plaintiff's damages at
$78,911.95, she ultimately found that McDonald's was not liable
for the plaintiff's injuries, because the plaintiff had failed
to establish negligence.
Court of Appeal finds that McDonald's breached its duty of
care to customers
In overturning the trial judge's decision, the Court of
Appeal held that it was reasonably foreseeable that once children
had gained access to the equipment, they would climb on it.
It also found that there were simple precautions that could have
been taken to prevent access to the equipment and so McDonald's
was in breach of its duty of care to customers. Furthermore, the
Court held that the child's unauthorised entry into the
playground was causative of the plaintiff's consequent
Court of Appeal's award for economic and non-economic
With respect to quantum, the Court of Appeal held that the trial
judge's approach to non-economic loss was appropriate and noted
that the Court should not intervene in a trial judge's
discretionary judgment of non-economic loss unless there is an
error of fact or law which results in a finding outside a
As to economic loss, the Court of Appeal considered that despite
the inconsistencies in the plaintiff's working history, the
most appropriate approach would be to award a cushion of $31,000
for past economic loss and a cushion of $75,000 for future economic
The Court also accepted the plaintiff's submission that he
was impaired in his ability to undertake domestic duties and so was
entitled to two hours of commercial care for the remainder of his
life. However, the Court applied a 40% reduction on account of
general vicissitudes of life and the plaintiff's pre-existing
wrist injury, which was rounded to a figure of $30,000.
Accordingly, the Court of Appeal entered an award of $179,000 in
favour of the plaintiff (including $11,000 for medical
Occupiers need to be vigilant or risk facing liability
The decision is a useful reminder that occupiers need to be
particularly vigilant in taking reasonable measures to prevent
access to areas that contain potential hazards. Otherwise, the
occupier may find itself liable not only to the person who enters
the hazardous area, but also any other individual who attempts to
assist or rescue such a person.
This case also highlights the fact that assessment of damages
for non-economic loss is largely up to the discretion of the trial
judge and the Court of Appeal will be hesitant to intervene.
Interestingly, this decision also emphasises the Court's
willingness to implement "cushions" for damages where a
clear-cut methodology for calculating the loss is not easily
ascertainable and also to apply reasonably large reductions on
account of mitigating factors, such as pre-existing injuries and
general vicissitudes of life.
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