New South Wales Court of Appeal CITATION : Wagga Wagga City Council v Mark Sutton [2000] NSWCA 34 FILE NUMBER(S) : CA 40555/98 HEARING DATE(S) : 25th February 2000 JUDGMENT DATE : 10 March 2000 PARTIES : Appellant- Wagga Wagga City Council Repondent-Mark anthony Sutton JUDGMENT OF : Meagher JA at 1; Handley JA at 12; Sheller JA at 13 LOWER COURT JURISDICTION : District Court LOWER COURT 100/97 Wagga Wagga FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : COUNSEL : Appellant- L King SC Repondent- BMJ Toomey QC, D O'Dowd SOLICITORS : Appellant- Phillips Fox respondent- Walsh & Blair CATCHWORDS : Negligence - Council in maintaing public playing field - personal injury - whether evidence as to injury true or fabricated - whether quantum of damages awarded excessive DECISION : Dismissed with costs WAGGA WAGGA CITY COUNCIL V Mark Anthony SUTTON NEGLIGENCE-COUNCIL IN MAINTAINING PUBLIC PLAYING FIELD-PERSONAL INJURY-WHETHER EVIDENCE AS TO INJURY TRUE OR FABRICATED-WHETHER QUANTUM OF DAMAGES AWARDED EXCESSIVE Facts: Mr Sutton was injured on a public playing field. During a football match his right foot landed in a hole in the ground, causing a fracture dislocation to his right ankle. At the trial Mr Sutton was awarded $158, 232.60 damages, which included $70,000 in general damages and $80,000 for reduced earning capacity. The Council appeals. Held: per Meagher JA (Handley JA and Sheller JA agreeing) It was in dispute whether the injury sustained was true or fabricated, and whether there were in fact any holes in the playing field. There was evidence to support the plaintiff's claims on both issues, and the trial judge was entitled to find the claims had been made out. Hence, His Honour's findings were unassailable. The quantum of damages awarded was within the range of sound discretionary judgment and should not be disturbed. ORDERS 1. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40555/98 MEAGHER JA HANDLEY JA SHELLER JA 10 MARCH 2000 WAGGA WAGGA CITY COUNCIL v SUTTON JUDGMENT 1 MEAGHER JA: This is an appeal from Delaney DCJ who awarded a verdict to the respondent Mr Sutton against the appellant Council. The amount of the verdict was $158,232.60. That figure was composed of the following items: Out of pocket expenses $ 4,332.60 General damages $ 70,000.00 Interest on general damages $ 900.00 Reduced earning capacity $ 80,000.00 Future treatment $ 3000.00 $158,232.60 2 Mr Sutton injured his right ankle in a football match. He was being tackled when the injury happened. He alleged that the injury occurred when his right foot got caught in a hole or depression near a sprinkler on the football field on which he was playing. The appellant Council, which conceded that it was the occupier of the field, maintained that the injury simply arose out of the tackle, and that the story of a depression near the sprinkler was a fabrication. His Honour believed the Plaintiff. 3 The hearing took the best part of three days in June 1998. Oral evidence was given on the plaintiff's behalf by the plaintiff, the plaintiff's wife and Mr Mott, a spectator. For the appellant council, evidence was given by Messrs, Sadler, Morrow, and Chapman. The medical evidence was purely by way of letters. The disagreements about the basic facts in issue were more numerous and more severe than is usually the case. 4 It was, as I have said, in dispute whether the plaintiff's account of having twisted his ankle in a hole was true or fabricated; it was in dispute how many, if any, holes were on the field; the dimensions of the alleged hole were the subject of wildly different accounts; the location of the alleged hole was differently placed. 5 Thus, the primary question is whether there was a hole near a sprinkler causing the plaintiff's fall. His Honour, believing the plaintiff, found that there was. Despite much argument to the contrary, I think his Honour's finding in this regard was a demeanour finding which binds us. There is also much supporting evidence. The hospital notes, made shortly after the accident, support the plaintiff's version. So, even more explicitly, does the evidence of Mr Mott, whom his Honour also believed. 6 Mr King SC, learned senior counsel for the appellant, pointed out the many difficulties which stood in the path of an acceptance of the plaintiff's account. But, in view of his Honour's acceptance of the plaintiff, there seems little point in discussing them. 7 Mr King SC also submitted that his Honour, in discussing the defendant's negligence, asked the wrong questions. His submission in this regard is as follows: His Honour dealt with the evidence of the appellant's system of inspection of the Wagga Wagga Cricket Ground upon the basis that it had to ensure that it "….was in a safe condition for the use of persons who were involved in free flowing running games, and who were unlikely to spend time in the course of those games where they were running, being tackled, passing balls, to look at the ground on which they were running". He said that he was satisfied that the appellant "…in the maintenance and preparation of the ground, failed in its duty of care to those persons who were likely to use the ground for football matches, to properly inspect the ground to ensure that there was no depression or hole…..". 8 Attractively as this submission was made, I do not think it should be embraced. In context, I think his Honour was saying that it was the appellant's duty to take reasonable care to ensure that the field was safe. 9 There remains the question of quantum. Initially I felt that neither the $70,000.00 figure nor the $80,000.00 should be accepted. However, I now think I was wrong in both respects. As to the former, I think that, whilst the figure is a little on the high side, it cannot be said to be beyond the range of a sound discretionary judgement, particularly in view of the prospect of reactive arthritis and osteoporosis for the plaintiff. 10 As to the latter, the facts are that the plaintiff was unfitted for clerical work, and fitted only for manual labour; that he had been unemployed for seven years or more; that he had made no effort to obtain work during the two years preceding the accident; that he swore (which his Honour presumably believed) that he was anxious in the future to obtain work; and that manual work would not be possible either at the time of the trial or for some time thereafter. In the circumstances his Honour awarded him compensation in the figure of $80,000.00, to last from the date of trial (when he was 32 years of age) to age 65 (when he would normally retire). That is as Mr Toomey QC, learned senior counsel for the respondent, reminded us, about $87.00 a week. I do not see how we can disturb that, when it represents compensation for the partial destruction of his residual working capacity. 11 I would dismiss the appeal with costs. 12 HANDLEY JA: I agree with Meagher JA. 13 SHELLER JA: I agree with Meagher JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.