This article is co-authored by Jasdev Singh, Lawyer,
The New South Wales Court of Appeal handed down a decision on 13
April 2015 in the matter of Metaxoulis v McDonalds Australia
Ltd1. The successful appeal by the Plaintiff
overturned the original findings made in favour of the
The principle established on appeal was that if an occupier
negligently compromises the safety of an individual who is on their
property, then the occupier could potentially be liable, for the
injuries suffered to the individual and anyone else that comes to
On 31 July 2010, the Plaintiff, Mr Konstantinos Metaxoulis went
to the aid of a child who got stuck whilst playing on the exterior
surfaces of the playground equipment at a McDonalds restaurant.
After assisting the child off the equipment, Mr Metaxoulis slipped
and fell off the structure suffering injuries to his ribs and
aggravating a wrist injury.
Details of how the child accessed the area in which he
eventually got stuck were unknown.
When this matter was initially heard in the District Court of
New South Wales, Her Honour Justice Gibbs, found that Mr Metaxoulis
failed to establish negligence against McDonalds. Nevertheless, Her
Honour did quantify the damages that Mr Metaxoulis would have
theoretically been entitled to had he established negligence, at
Mr Metaxoulis appealed the decision in respect of the finding of
no liability and the assessment of damages. He contended that
McDonalds was negligent as they had failed to provide an
appropriate system preventing unauthorised access to the play area
through an unsecured gate.
Court of Appeal
The Court of Appeal ultimately found in favour of Mr Metaxoulis.
However, in coming to their determination the Court took into
consideration a number of factors. The Court noted that there was
no dispute over the fact that McDonalds owed a duty to its
customers to take care in providing playground equipment which is
not inherently dangerous for children of an age who were likely to
Furthermore, the Court noted that that the only way the child
could have accessed the play area was through a 1.8 metre tall
access gate. The Court noted that the purpose of the gate, whilst
permitting access to the play area, was to prevent access by
There was no direct evidence of whether the gate was open or
closed prior to the accident. However, as the child was in an area
of the playground that could have only been accessed through that
gate the Court concluded that the gate must have been open.
The Court of Appeal found that McDonalds was in breach of their
duty of care by not:
placing signs up around the play area warning of risk;
installing spring hinges on the access gate to ensure the gates
automatically closed; or
installing a key lock on the gate to make it harder for
children to access the play area.
Consequently, the Court found that the unrestricted access into
the play area was causative of the Plaintiff's injuries.
The Court of Appeal also reviewed the award of damages,
increasing it to $179,000.
The issues critical to the determination of this case were
access and warning. These issues have been central to many decided
cases involving the duty of care owed to and in respect of
children. The fact that the injury in this case was to a person
coming to the aid of the child does not detract from those main
issues. The foreseeability of the injury to the "rescuer"
is largely derivative of the original breach. These cases are not
common, but the outcome in this instance does serve as a reminder
of the additional class of potential claimants to be
1Metaxoulis v McDonalds Australia Ltd
 NSWCA 95
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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