Brown v Hewson

Case [2015] NSWCA 393

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Brown v Hewson [2015] NSWCA 393
Hearing dates:2 October 2015
Date of orders: 14 December 2015
Decision date: 14 December 2015
Before: Macfarlan JA at [1];
Sackville AJA at [13];
Adamson J at [113]
Decision:

1. Appeal allowed in part.
2. Set aside the verdict and judgment given by English DCJ for the Plaintiff in the sum of $192,721.
3. In lieu of the judgment referred to in Order 2, enter judgment for the Plaintiff in the sum of $92,721.
4. Otherwise dismiss the appeal.

Catchwords:

TORTS – negligence – duty of care – breach of duty –child at day care centre was allowed to climb on balance beam with shoes on incorrect feet – beam exceeding height prescribed in regulations by 50 mm

 

TORTS – negligence – common law causation – whether failure to detect incorrect footwear materially contributed to accident – whether height of beam materially contributed to accident – whether plaintiff sustained any head injury in the accident

  DAMAGES – past and future economic loss – buffer – whether finding plaintiff had suffered loss of earning capacity supported by evidence
Legislation Cited: Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW)
Children (Care and Protection) Act 1987
Civil Liability Act 2002 (NSW)
Cases Cited: Adelaide Stevedoring Company Ltd v Forst [1940] HCA 45; 64 CLR 538
Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36
Bendix Mintex Pty Ltd v Barnes, (1997) 42 NSWLR 307 (1997) 42 NSWLR 307;
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe [1945] HCA 31; 71 CLR 637
Fox v Percy [2003] HCA 22; 214 CLR 118
Graham v Baker [1961] HCA 48; 106 CLR 340
Jones v Dunkel [1959] HCA 8; 101 CLR 298 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
March v Stramare (E & MH) Pty Ltd [1990] HCA 12; 171 CLR 507
McGhee v National Coal Board [1973] 1 WLR 1
Penrith City Council v Parks [2004] NSWCA 201
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports ¶81-949
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Wilsher v Essex Area Health Authority [1988] AC 1074
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460
Category:Principal judgment
Parties: Rodney Brown and Rowena Brown t/as Town and Country Children’s Centre (Appellant)
Benjamin Hewson by his tutor Sharon Hewson
(Respondent)
Representation:

Counsel:
R Cavanagh SC / S Maybury (Appellant)
MJ Cranitch SC / MB Inglis (Respondent)

  Solicitors:
Meridian Lawyers (Appellant)
Commins…

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AGLC
Brown v Hewson [2015] NSWCA 393
Case
[2015] NSWCA 393
Decision Date

CaseChat Overview and Summary

In *Brown v Hewson*, the New South Wales Court of Appeal considered a negligence claim brought by a child against a day care centre. The dispute arose from an incident where the child fell from a balance beam, sustaining injuries. The plaintiff alleged that the day care centre breached its duty of care by allowing the child to use the balance beam with shoes on the incorrect feet and by having the beam exceed the prescribed regulatory height by 50 millimetres.

The Court of Appeal was required to determine whether the day care centre owed a duty of care to the child, and if so, whether that duty was breached. Further, the court had to assess whether any breach of duty materially contributed to the child's fall and subsequent injuries, specifically considering whether the incorrect footwear and the slightly excessive height of the beam were causative factors. The court also had to consider whether the plaintiff had sustained any head injury as a result of the accident and whether the finding of past and future economic loss, based on a loss of earning capacity, was supported by the evidence.

The Court of Appeal found that while the day care centre did owe a duty of care, the evidence did not establish that the incorrect footwear materially contributed to the accident. However, the court did find that the slightly excessive height of the balance beam was a contributing factor to the fall. The court also determined that the plaintiff had not sustained a head injury. Consequently, the court varied the damages awarded at first instance, reducing the quantum of the judgment to reflect the findings on causation and injury.

The appeal was allowed in part, with the verdict and judgment for the plaintiff in the sum of $192,721 being set aside. In lieu of that judgment, judgment was entered for the plaintiff in the sum of $92,721. The appeal was otherwise dismissed.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside the verdict and judgment given by English DCJ for the Plaintiff in the sum of $192,721.

3. In lieu of the judgment referred to in Order 2, enter judgment for the Plaintiff in the sum of $92,721.

4. Otherwise dismiss the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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