Written by Peter CarterApril 29, 2015
An appeal court has ruled in favour of a bystander who came to the help of a five-year-old boy who got stranded on top of playground equipment in a McDonald’s restaurant.
The boy, identified in the judgment only as ‘Dylan’, had managed to climb onto the outside of elevated cylindrical tunnels running between towers through which children were intended to crawl.
He had slipped and became stuck between the outside of one of the brightly coloured crawl tubes and an outer barrier when Kon Metaxoulis heard his cries and decided to go to his aid.
Kon first tried to reach the child by crawling through one of the tubes but quickly realised there was no means of exiting once inside. After backing out, he noticed there was an opened gate to the side of the structure.
He walked through the gate and climb up over the crawl tubes. When he reached Dylan, he lifted him up and passed him over the fence to his waiting parents.
It was as he was retreating down from the top of the tubes that he slipped, fell and injured his left wrist.
It was accepted that if Dylan’s predicament was the result of Big Mac’s negligence, it was liable to the rescuer for the injuries suffered.
McDonald’s also conceded it owed a duty to take reasonable care in relation to the playground equipment provided to customers and families at the Castle Hill restaurant.
But Judge Susan Gibb had ruled 12 months earlier in NSW District Court that without proof of how the child gained entry, the 40-yr-old chef had failed to prove McDonalds negligent.
On appeal, the court concluded the child must have gained entry by the same means as had his rescuer. There was simply “not a shred of evidence” to support any other explanation. Entry through the open gate was the only feasible explanation and was supported by the claimant’s evidence that it had actually been available.
The gate after all had been found open by Metaxoulis and had no self-locking device.
And considering the evidence of restaurant manager Denise Gately, that incidents of children climbing on to the exterior of the play equipment every two months or so and that the gate bore no sign prohibiting entry, the judges unanimously found Maccas as clearly at fault.
The appeal judges also overturned their colleague’s modest assessment of the hero dad’s damages. Rather than just $79k, the court awarded $179k principally because the appropriate “cushion” for diminution in earning capacity should be $75k – rather than the $21k thought right by the trial judge – and $30k for future domestic care, compared to nil allowed at trial.
The trial judge had been wrong in describing the claimant as “combative,” they wrote, when he his evidence was largely cooperative. Having acknowledged his “stoicism and determination” in spite of considerable frequent wrist pain, she also wrongly ignored those factors in assessing their effect on employment.
“There was powerful evidence that Mr Metaxoulis had suffered a diminution in earning capacity,” ordered the appeal judges, for which he should be properly compensated.
Metaxoulis v McDonald’s Australia Ltd  NSWCA 95 McColl JA, Basten JA, Macfarlan JA, 13 April 2015 – view decision