MY CHILD HAS BEEN INJURED ON AN INFLATABLE JUMPING CASTLE. WAS IT A ‘FREAK ACCIDENT’ OR DO THEY HAVE A RIGHT TO COMPENSATION?
You may have noticed stories in the media lately describing the terrifying moment that an inflatable jumping castle lifted into the air and flipped over due to wild winds. The aftermath of these accidents is stressful and parents can be left dealing with their child’s devastating injuries for the rest of their lives.
Some parents may classify the jumpling castle accident as a ‘freak accident’. This may be correct in some circumstances, for example, when the weather changes suddenly and without warning and the inflatable device was anchored to the ground correctly. What some parents may not appreciate, however, is that someone’s negligence may have contributed to the occurrence of the accident. Determining whether negligence is involved requires an investigation and an analysis of the available evidence. Examples of the questions that Stacks Goudkamp will consider in such an investigation include the following:
1. Who can I sue?
The answer to this question will always be fact specific and will require evidence including contractual documentation, weather reports, incident reports and company guidelines. As an example, say a store hires a jumping castle from a company to promote its grand opening and the inflatable device flips over due to wind. In that situation, there would be two possible defendants that Stacks Goudkamp would investigate a claim against: the person hiring the inflatable device and the person hiring out/supplying the inflatable device.
To sue either the hirer or supplier of the jumping castle, a plaintiff must be able to establish that they owed them a duty of care. The hirer will generally owe the injured person a duty of care on the basis that they occupy the land on which the accident occurred and they have a duty to ensure that lawful entrants are not exposed to foreseeable and not insignificant risks of injury on that land.
Finding that a supplier owed a plaintiff a duty of care is more complicated. However, generally speaking, the hirer may be found to owe a plaintiff a duty of care on the basis that it was required to exercise due skill, care and expertise when securing the inflatable device and/or operating and supervising it.
Furthermore, if the inflatable device were found to be faulty or defective after investigation, a claim against the manufacturer and/or supplier would also be explored.
2. On what basis can I sue them?
Again, the answer to this question will always be fact specific. Using the above example, both the hirer and supplier could face liability under the Civil Liability Act 2002 (NSW) (“CLA”).
Under the CLA, a plaintiff is required to establish, on the balance of probabilities, that:
- The hirer and/or supplier responsible for your injuries owed you a duty of care.
- The hirer and/or supplier breached that duty of care due to a negligent act or omission.
- The hirer and/or supplier’s breach caused injury, loss and damage.
- The injury, loss and damage sustained were not too remote to the breach.
Establishing the above requires complex legal argument. To establish that the hirer and/or supplier breached their duty of care, questions that Stacks Goudkamp would consider in their investigation include but are not limited to:
- Did the set up and anchorage of the jumping castle comply with the relevant standards?
- Did the hirer and/or supplier turn their mind to any weather warnings?
- Did the hirer and/or supplier follow relevant guidelines relating to weather?
- Did the hirer and/or supplier properly supervise the inflatable device?
- Did the hirer and/or supplier provide any warnings about the risks of injury involved with using the inflatable device?
If there is a fee paid for use of the slide, liability may also be faced under the Australian Consumer Law for breaches of consumer guarantees and/or contract.
Investigating the injury, loss and damage sustained due to the accident would require us to obtain medical evidence including treating records and expert medico-legal reports. The timing of obtaining such evidence would depend on the rate of your child’s recovery.
3. What compensation can be claimed?
Each compensation claim is unique and we will always advise you on your entitlements. However, an injured person who can establish negligence per the Civil Liability Act 2002 (NSW) may be entitled to:
- Non-economic loss: this head of damage relates to losses that are not capable of precise mathematical calculation. Traditionally, this has included pain and suffering, loss of amenities, disfiguration, loss of life expectancy and loss of enjoyment of life. Section 16 of the Civil Liability Act 2002 (NSW) sets out the threshold you must meet to qualify for this head of damage and also sets out a statutory maximum.
- Care and domestic assistance: this head of damage encompasses any personal care (such as assistance with dressing and showering) and domestic assistance (help with the gardening, cooking, washing etc) that you have needed in the past and will need in the future due to the injuries you sustained in your accident.
- Past and future gratuitous care: in order to claim for ‘gratuitous’ (or unpaid care often provided by family members), you must satisfy the statutory threshold provided by Section 15 of the Civil Liability Act 2002 (NSW) The care must be provided for at least 6 hours per week for at least 6 consecutive months.
- Commercial care: A claim may be paid for both past commercial care (this is care such as cleaning and nursing that you have been required to pay for) and for future commercial care. The care must be reasonable and necessary and usually requires support in the form of evidence from medical practitioners.
- Past and future out-of-pocket expenses: Past out-of-pocket expenses include any reasonable expenses you have incurred for treatment, medication and travel due to your injuries. These expenses should be evidenced by receipts and medical evidence. Future out-of-pocket expenses relate to the treatment you will require into the future such as physiotherapy, further surgery, medication etc. Again, claims for future treatment must be supported by medical evidence.
- Past and future economic loss: if you were employed at the time of the boating accident and could not work at the same capacity as before your accident or at all, you are entitled to claim for past economic loss. This includes any lost wages, bonuses, over-time and superannuation that you forwent due to your injuries. Future economic loss takes into account the ongoing effects of your injuries on your ability to perform your pre-accident duties, future employment prospects and any loss of earning potential you suffer due to your accident.
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