Occupiers Liable to Rescuers for Personal Injury

The New South Wales Court of Appeal handed down a decision on 13 April 2015 in the matter of Metaxoulis v McDonalds Australia Ltd[1]. The successful appeal by the Plaintiff overturned the original findings made in favour of the Defendant.

The principle established on appeal was that if an occupier negligently compromises the safety of an individual who is on their property, then the occupier could potentially be liable, for the injuries suffered to the individual and anyone else that comes to their aid.


On 31 July 2010, the Plaintiff, Mr Konstantinos Metaxoulis went to the aid of a child who got stuck whilst playing on the exterior surfaces of the playground equipment at a McDonalds restaurant.   After assisting the child off the equipment, Mr Metaxoulis slipped and fell off the structure suffering injuries to his ribs and aggravating a wrist injury.

Details of how the child accessed the area in which he eventually got stuck were unknown.

When this matter was initially heard in the District Court of New South Wales, Her Honour Justice Gibbs, found that Mr Metaxoulis failed to establish negligence against McDonalds. Nevertheless, Her Honour did quantify the damages that Mr Metaxoulis would have theoretically been entitled to had he established negligence, at $78,911.95.

Mr Metaxoulis appealed the decision in respect of the finding of no liability and the assessment of damages. He contended that McDonalds was negligent as they had failed to provide an appropriate system preventing unauthorised access to the play area through an unsecured gate.

Court of Appeal

The Court of Appeal ultimately found in favour of Mr Metaxoulis. However, in coming to their determination the Court took into consideration a number of factors. The Court noted that there was no dispute over the fact that McDonalds owed a duty to its customers to take care in providing playground equipment which is not inherently dangerous for children of an age who were likely to use it.

Furthermore, the Court noted that that the only way the child could have accessed the play area was through a 1.8 metre tall access gate. The Court noted that the purpose of the gate, whilst permitting access to the play area, was to prevent access by younger children.

There was no direct evidence of whether the gate was open or closed prior to the accident.  However, as the child was in an area of the playground that could have only been accessed through that gate the Court concluded that the gate must have been open.

The Court of Appeal found that McDonalds was in breach of their duty of care by not:

  • placing signs up around the play area warning of risk;
  • installing spring hinges on the access gate to ensure the gates automatically closed; or
  • installing a key lock on the gate to make it harder for children to access the play area.

Consequently, the Court found that the unrestricted access into the play area was causative of the Plaintiff’s injuries.

The Court of Appeal also reviewed the award of damages, increasing it to $179,000.


The issues critical to the determination of this case were access and warning.  These issues have been central to many decided cases involving the duty of care owed to and in respect of children.  The fact that the injury in this case was to a person coming to the aid of the child does not detract from those main issues.  The foreseeability of the injury to the “rescuer” is largely derivative of the original breach.  These cases are not common, but the outcome in this instance does serve as a reminder of the additional class of potential claimants to be considered.

For more information on this update or any insurance matters please contact partner Vidal Hockless on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

[1] Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95