Brown v Hewson

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.