Marsh & Maher Richmond Bennison Lawyers

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Parents and Playgrounds – a $1.3m+ Cautionary Tale

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Parents and Playgrounds – a $1.3m+ Cautionary Tale

Judge Morrish of the Victorian County Court recently awarded $1.37M in damages to a 39 year old father who fell approximately 3.5m when he was trying to help his daughter who had become stuck in a piece of the play equipment at Xanadu Playcentre in 2014; Qayom v Kylamanda Investments Pty Ltd (trading as Xanadu Playcentre & Café) 2018 VCC 1675.

Before the Plaintiff’s case was closed the former operator of Xanadu Playcentre admitted liability. There had been evidence given that the Playcentre staff told the Plaintiff on the day of the incident that the platform had not been properly fixed following a collapse the day prior when a child fell. The father had also recorded, on his mobile phone, a conversation with Playcentre staff about a week after the incident which also supported this evidence and that further repairs were intended on the date of incident and were not completed until after the Plaintiff’s incident.

It is not clear if the Playcentre staff were aware that the conversation was being recorded or whether there was any issue taken with it being used in evidence.

The case proceeded as an assessment of the value of the claim.

The Plaintiff, a refugee from Afghanistan, had worked in heavy labour roles since his arrival to Australia. He was found to have suffered an aggravation of asymptomatic spinal damage at three levels as well as disc injuries at two levels and soft tissue injury to the spine and left shoulder. He also developed a psychological reaction to the injury. He had not worked since a failed attempt to return about 5 months following the fall. He underwent no surgery and was treated through a multidisciplinary pain program.

He was awarded:

– $265,000 in general damages for his pain and suffering;
– $1.052M for past and future economic loss damages;
– $53,000 for medical costs, gardening and help at home.

Subsequently the Playcentre was ordered to pay the Plaintiff’s costs on an indemnity basis.

From a risk management perspective, places (such as playcentres) which are open to the public of various age and capability and where there may be some risk involved in activities undertaken on the premises, would be well advised to ensure that any particular known risks or damage is attended to and repaired fully before access to the area is allowed. The area should also contain a notice of warning that it presents a risk and is not accessible by members of the public. Staff should be advised to monitor the area and prevent access.

Further, in the IT era when mobile recording devices are routinely used, potential defendants to a legal claim relating to an injury would need to be careful in their dealings with the injured person to avoid making any statements or admissions. An admission by an insured entity could give rise to coverage issues.

If you wish to learn more about the issues identified in this note, please contact Ingrid Nunnink, Tim Finemore or Kelsey Ryan on 9604 9400.

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