FRANCIS and ANOR v VERDON by her next friend VERDON [1997] NSWCA 114

FRANCIS and ANOR v VERDON by her next friend VERDON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and BEAZLEY JJA 13 November 1997, 18 December 1997

[1997] NSWCA 114

Damages

FACTS

A five year old girl fell from an amusement device. The device had horses suspended from a central pivot and as that pivot rotated the horses out and upwards at speed. The girl fell off and sustained mild but permanent brain damage. The device had negligible safety devices. The trial judge found for the little girl and the appellant appeals on grounds of liability and quantum.

HELD

(1) There was sufficient evidence for the trial judge to consider the tort of negligence proven.

(2) The judge properly exercised his discretion in assessing and awarding damages.

Meagher JA This is an appeal from a decision of O'Reilly DCJ, delivered 22 August 1995, in which he found for the plaintiff/respondent in proceedings concerning personal injuries suffered by 5 year old Lauren Verdon when she was flung from an amusement device at the Rock Show on 15 October 1988.

A rather sorry Statement of Claim was eventually replaced by an Amended Statement of Claim which alleged that Lauren's personal injuries were caused as a result of the defendant's negligence or breach of statutory duty or breach of contract. The defendant denied liability. When the matter came on for hearing, the same day that judgment was delivered, the plaintiff led evidence largely on the issue of damages. As to liability, the most useful evidence led was that of Lauren's cousin, Rebecca Martin, who was at the date of the accident then aged about 14. At the close of the plaintiff's case, the defendant tendered a further medical report but adduced no other evidence.

O'Reilly DCJ found for the plaintiff and awarded nearly $150,000 in damages. The appellant appeals both on the issue of liability and the quantum of damages awarded. It is convenient to consider liability first.