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. On 15 October 1988, Lauren visited the Rock Show with other members of her family, including her cousin and father. Lauren rode on an amusement device, variously referred to as "flying horses" and "horse-o-plane", with her cousin seated behind her. The contraption had (fake) horses suspended from a central pivot and as the central pivot rotated the horses swung out and upwards causing the riders of the horses to obtain amusement by being spun around in circles at speed. The cousin gave evidence that she had been on that ride once before on that day, but never before. Her evidence as to the mechanism of her fall was in the following terms (AB 57,58): Q. Tell us about that? A. Yeah. Lauren and I were both on the horse, Lauren was sitting in front of me as I recall and I was behind her, she was sitting in the sort of saddle part of the horse and I had my hands around her, and as we were going around, I'm not sure how fast we were going but it was well into the ride, I had lost my footing on one side and thus imbalanced and was jolted off the horse and - - 2 UNREPORTED JUDGMENTS Q. You were just jolted off the horse? A. Yeah. And so once I'd fallen off I'd realised what had happened and I got up straight away to reassure Lauren that's okay because I assumed that she'd still be on it and it wasn't until I turned around after trying to look for her that I realised she was a greater distance away from the ride Q. And before you were dislodged, Lauren was located between your arms was she? A. Yes. Q. Did you have hold of anything? A. Thad hold of - I can't remember exactly what it was but it was a part of the horse I think, there were two bars coming down and I was holding onto those, just things that were connected to the horse which connected to the top, the part of the ride that spun around, yeah. She also gave evidence that her feet were resting on "a metal bar coming out of the side" of the horse and that she lost her foothold; it was a jolt that ultimately dislodged her. She gave evidence that no warnings were given and there was no evidence of any other form of stirrup, strapping or safety device of any description. Lauren fell after her cousin and gave evidence that she did not recall anything of either fall. The Amended Statement of Claim contained a list of particulars, relied upon as particulars in support of each ground of liability pleaded, namely negligence, breach of statutory duty and breach of contract. One of those particulars alleges that the defendant failed to comply with the provisions of the Construction Safety Act 1912 and Regulations, especially reg157E(3)(j), which is in the following terms: Where the design or construction of a device is such that there would be a danger of a passenger being displaced from the device through his inability to foresee the occurrence or correctly to assess the dynamic effects of movements of the device or any part thereof, there shall be provided and maintained effective safeguards to ensure that the passengers are retained in their intended positions in or on the device. After reciting the facts and this regulation, his Honour confined his reasons on liability to the following (AB128P-Y): Well I am dealing with a claim by a little girl who was then aged five. I am satisfied that she was unable to foresee the occurrence or correctly assess the dynamic effects of movements of the device or any part thereof. It is quite plain that the defendant failed to ensure that she was retained. That follows from the fact that she was thrown off and thrown quite some distance at a sufficient velocity to cause damage to her brain. And the defendant of course has tendered no evidence on the issue so I am more comfortable in finding that I am perfectly satisfied that the defendant is negligent, so there will be a verdict for the plaintiff. On the question of liability, the appellant alleges his Honour erred in applying reg157E(3)(j) for the following reasons: (i) he failed to have regard or proper regard to the absence of evidence as to the plaintiff's inability to foresee the ocurrence or correctly assess the dynamic effects of movements of the device; (ii) failed to have regard to the evidence of Rebecca Martin in assessing whether or not the circumstances fell within the regulation; URJ FRANCIS and ANOR v VERDON by her next friend VERDON (Meagher JA) 3 (iii) failed to give sufficient weight to the absence of evidence from the plaintiff as to her inability to foresee or assess the movement of the device. (iv) failed to see that there was no causal connection between beach and fall; (v) failed to have regard to the absence of expert evidence called by the plaintiff. It is to be noted that his Honour determined the matter on the grounds of negligence, the basis of which was breach of the regulation. This approach is understandable and, to my mind, correct. His Honour's reasons as to why he found negligence proved were perhaps unfortunately worded, but nevertheless relatively clear. His Honour accepted that the words of the regulation appropriately described a situation which, if breached, would give rise to a cause of action in negligence (and, presumably, breach of statutory duty). His Honour referred to the evidence of Rebecca Martin, the inability of the plaintiff to recall the circumstances or mechanism of the accident and the absence of any evidence led by the defendant as to the mechanism of the accident or the conduct of the defendant which could show that they had exercised reasonable care. The appellant alleges that his Honour's reasons are "tantamount to saying that the accident which befell this particular respondent itself establishes a breach of the Regulation". Perhaps, but that comment is not ultimately particularly useful. What his Honour was saying was "given the plaintiff's inability to recall the circumstances, the limited evidence available as to the mechanism by which the incident occurred and the absence of any contradictory evidence, I am satisfied that there was a breach of a duty of care the terms of which duty are adequately reflected, for present purposes, in reg157E(3)(j)". It is irrelevant whether the cousin caused the plaintiff to fall or whether a separate jolt caused the plaintiff to fall: in either situation the causative negligence, given the circumstances of this case, stems from the defendant's acts or omissions in providing an unsafe "device". It was not fatal to the plaintiff's case that there was no evidence of her inability to understand the possible movements of the device - one would have thought that a trial judge could take judicial notice that a five year old would not be well versed in such matters. Little five year old girls do not often turn their minds to issues of safety, especially when faced with a device which promises fun. The Regulation was evidence of an accepted industry and/or community standard requiring, amongst other things, a standard of care to be adopted in respect of the safety of a device which was intended to be used by people likely to have little or no knowledge of practical physics. In summary, the Regulation was not the root of the negligence; it was evidence towards negligence. Accordingly, nice arguments as to the precise construction of the Regulation are otiose. That disposes with all of the grounds of appeal concerning liability except perhaps the fifth referred to above. That ground is not disposed of if it intends to assert that his Honour was not entitled to draw an inference as to causation or breach from the evidence in the absence of expert evidence, presumably on the basis that certain inferences could not be drawn because they are not in the realm of common knowledge or because they deteriorate into mere speculation. To conclude that a five year old girl is ignorant of physics cannot require expert evidence. Similarly, it does not matter what caused the jolt or other occurrence which made the plaintiff fall; the fact that there was no proper safety device is sufficient on the issue of causation and breach of duty. 4 UNREPORTED JUDGMENTS Failing its appeal on liability, the appellant argues that his Honour erred in his assessment of damages in two respects: first, in his assessment of general damages and, second, in his assessment of future economic loss. There was evidence to support his Honour's finding that, amongst other injuries and disabilities, the plaintiff suffered mild brain damage which would continue to have effect for life. It is unnecessary to list all of the grounds of appeal on damages. Suffice it to say that they are peppered with complaints couches in terms of "failed to have any proper regard to" certain evidence or gave "undue weight to" certain evidence. The cases of Abalos and Devries have set out certain principles which have been repeated ad nauseam by this and other appellate courts. The appellant has not, either in submissions or in argument, advanced any serious or remotely cogent argument, having regard to those principles, as to why his Honour was not entitled to make the findings he did, or to attribute to various evidence the weight that he did. At one stage, his Honour noted that he preferred the evidence of the parents over a doctor. That evidence related to the plaintiff's clumsiness or lack of coordination. The opinion was not one of a scientific nature and it is obvious that parents seeing their child every day would be in a better position to give such evidence. His Honour explicitly found the parents to be credible witnesses. The appellant suggests that, in awarding $60,000 for general damages, his Honour failed "properly to exercise his discretion in the assessment of damages". When it is remembered that his Honour found the plaintiff to have suffered mild but permanent brain damage which must effect the course of the young girl's life, one can do little but pause to note that the absurdity of the appellant's proposition is breathtaking. Finally, the appellant argues that future economic loss was inappropriately and excessively assessed and was not discounted against the prospect that the plaintiff would not in fact experience any economic loss given her age. His Honour's reasons on this issue, slightly longer than his reasons on liability, are contained in the following passage: There was a large element of crystal ball work so far as the future is concerned, but I think the position that Mr Hennessy has put to me is realistic. If she has troubles in Years 11 and 12 [and any tertiary studies], I think she could lose substantially more than twenty five percent of her earning capacity. If one takes the average weekly earnings of a female which are agrees at about four hundred and fifty five dollars net, it is reasonable in my view that she could have tone better than that. Testing the matter, a loss of one hundred dollars per week commencing at age twenty and persisting for forty five years produces before a discount a gross figure of a hundred and twenty nine thousand eight hundred and fifty dollars. Discounted for early receipt and discounted by a further fifteen percent for vicissitudes, one has a figure of eighty four thousand five hundred and forty five dollars, and it seems to me that that is a reasonable estimate of this plaintiff's loss. These reasons demonstrate very clearly that the trial judge was awarding the plaintiff a sum for "loss of earning capacity" as opposed to "loss of earnings". That is, the plaintiff was awarded a sum designed to compensate her for the chance that her earnings would be adversely affected at some time in the future: Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9 (CA). The making of such an award is distinct to the making of an award for "loss of earnings" [which term should, at least for the sake of clarity, be reserved for instances in which the future loss can be quantified with some degree of certainty.] The trial judge URJ FRANCIS and ANOR v VERDON by her next friend VERDON (Beazley JA) 5 clearly stated that he regarded the figure awarded as "'a reasonable estimate of this plaintiff's loss [of earning capacity]. That he explained his reasons as to why he regarded the sum as appropriate by reference to a hypothetical example more appropriate to an assessment of "loss of earnings" is no ground for disturbing what is in fact a sound assessment of the plaintiff's loss of earning capacity, whether or not the hypothetical example contained errors. For these reasons, I would dismiss the appeal with costs. Handley JA I agree with Meagher JA. Beazley JA I agree with Meagher JA. Appeal dismissed with costs. Counsel for the appellant: L King/G Curtin Solicitors for the appellant: Henry Davis York Counsel for the respondent: B M J Toomey QC/C E Romanuik Solicitors for the respondent: Walsh & Blair