In brief - NSW Court of Appeal sets aside trial judge's findings

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 equipment

The case Metaxoulis v McDonald's™ Australia Ltd [2015] 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 injury.

Court of Appeal's award for economic and non-economic loss

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 reasonable range.


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 loss.


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 expenses).

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 inpidual 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.

This note just speaks broadly and for general information and is not intended to be comprehensive. You should not rely on this as a final statement or as advice about your own situation.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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