Bryson JA at 1; Young CJ in Eq at 39; Hunt AJA at 40
DECISION:
Appeal allowed. Damages varied to $64,000. Each party to pay own costs. See [38]
CATCHWORDS:
NEGLIGENCE - Occupier - guest child aged 7 injured on trampoline which was accessible while children were without adult supervision - consideration of - foreseeability - breach in not preventing children from going to trampoline while unsupervised - reasonable response to foreseen risks to children in home and in care of parents - contributory negligence of child of 7 (held, none) - Civil Liability Act 2002 re contributory negligence, assumption of risk, obvious risk. Finding of liability upheld. - DAMAGES - personal injury - non-economic loss - Civil Liability Act 2002 - percentage of most extreme case - loss of sensation in thumb and 2 fingers, numbness paraesthesia and weakness in R dominant hand - 28% of most extreme case set aside, 20% substituted.
GEOFFREY DOUBLEDAY & ANOR v. BIANCA SIMONE KELLY BY HER NEXT FRIEND MICHELLE KELLY
Judgment
1 BRYSON JA: The appellants appeal against the verdict and judgment for $104,000 personal injury damages given by the Chief Judge of the District Court, Justice Blanch, at Lismore on 2 April 2004 after a hearing on 1 and 2 April 2004. The respondent, the plaintiff in the District Court, is a minor born on 20 September 1990. She suffered personal injury on 22 December 1997 in an accident at the appellants’ house “Mulwala”, on the Mulalley Road near Gunnedah, New South Wales. The respondent was then seven years of age; at the time of the trial she was thirteen years of age.
2 The learned Trial Judge found to the following effects. In 1997, the respondent was a friend of the appellants’ daughter, Lucy, who was then under five years of age. On 21 December 1997 the respondent and her parents arranged for her to go to the appellants’ house, which was the home of Lucy, to sleep over for the night. The children slept under a Christmas tree. As this was…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Doubleday v Kelly [2005] NSWCA 151
Case
[2005] NSWCA 151
Decision Date
CaseChat Overview and Summary
Doubleday v Kelly concerned an appeal from a judgment in favour of the plaintiff, a seven-year-old child, who suffered personal injury while playing on a trampoline at the defendant's property. The central dispute revolved around the defendant's alleged negligence as an occupier in failing to adequately supervise the child and prevent access to the trampoline when unsupervised. The case was heard in the Court of Appeal of New South Wales.
The legal issues before the Court of Appeal included whether the defendant breached their duty of care to the child by allowing unsupervised access to the trampoline, the foreseeability of the risk of injury to a child of that age in such circumstances, and whether the child was capable of contributory negligence. The court was also required to consider the application of the *Civil Liability Act 2002* (NSW) concerning contributory negligence, assumption of risk, and obvious risk, as well as the assessment of damages for non-economic loss.
The court upheld the finding of liability against the defendant, reasoning that it was foreseeable that a seven-year-old child, if unsupervised, might suffer injury on a trampoline. The defendant's failure to prevent the child from accessing the trampoline without adult supervision was considered a breach of the duty of care owed. The court found that a child of seven was not capable of contributory negligence in this context. However, the appeal was allowed on the issue of damages, with the court substituting a lower figure for non-economic loss, assessing the injury at 20% of the most extreme case. The final orders stipulated that the damages be varied to $64,000, with each party to bear their own costs of the appeal.
Orders
Orders of the court
Appeal allowed. Damages varied to $64,000. Each party to pay own costs. See [38]