Doubleday & Anor v Kelly

[2005] NSWCA 151

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Negligence
2. › Occupier's liability
3. › Duty of care to child guest
4. › Trampoline accessible to unsupervised children
5. › Foreseeability of risk of injury to child of 7
6. › Reasonable response to foreseeable risk in domestic and parental context
7. › Whether verbal warning sufficient precaution
8. › Whether physical prevention of access required
9. › Civil Liability Act 2002 (NSW), Pt 1A Div 2, ss 5B, 5C, 5D
1. Negligence
2. › Contributory negligence
3. › Standard of care for child plaintiff
4. › Whether child of 7 capable of perceiving risk
5. › Reasonable person in the position of a child
6. › Civil Liability Act 2002 (NSW), Pt 1A Div 8, ss 5R, 5S
1. Negligence
2. › Assumption of risk
3. › Obvious risk
4. › Whether risk obvious to reasonable person in position of child of 7
5. › Dangerous recreational activity
6. › Civil Liability Act 2002 (NSW), Pt 1A Div 4, ss 5F, 5K, Div 5, s 5L
1. Damages
2. › Personal injury
3. › Non-economic loss
4. › Assessment of severity as percentage of most extreme case
5. › Permanent loss of sensation and weakness in dominant hand
6. › Whether 28% of most extreme case excessive
7. › Civil Liability Act 2002 (NSW), Pt 2 Div 3, s 16

Quick Take

Under ss 5R(2)(a) and 5F(1) of the Civil Liability Act 2002 (NSW), the reference to 'a reasonable person in the position of that person' incorporates the characteristics of the injured person, including being a child of a particular age with limited experience. A verbal warning to young children the evening before is not an adequate precaution against the foreseeable risk of injury from a trampoline; physical prevention of access (such as turning the trampoline over) may be required where the means are ready to hand and free of cost.