New South Wales Supreme Court CITATION : Donovan v Port Macquarie Base Hospital & Anor [1999] NSWSC 1274 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20059/96 HEARING DATE(S) : 18 - 20 August 1999 and 2 September 1999 JUDGMENT DATE : 22 December 1999 Aaron Donovan by his next friend Sylvia Donovan (Plaintiff) PARTIES : Port Macquarie Base Hospital (First Defendant) State of New South Wales (Second Defendant) JUDGMENT OF : Dunford J COUNSEL : MB Williams (Plaintiff) PR Arden (Second Defendant) Garrett Walmsley Madgwick (Plaintiff) SOLICITORS : Minter Ellison (First Defendant) Crown Solicitor (Second Defendant) CATCHWORDS : NEGLIGENCE - 10 year old boy falls from a tree in backyard of premises where he lived - previous requests by mother to defendant (landlord) to remove tree - whether defendant negligent - assessment of damages. ACTS CITED : Residential Tenancies Act, s 25 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, CASES CITED : Parker v South Australian Housing Trust (1986) 41 SASR 494, McHale v Watson (1966) 115 CLR 199, Mye v Peters (1967) 68 SR(NSW) 298. DECISION : Judgment for the plaintiff in the sum of $420,297. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 22 DECEMBER 1999 20059/96 - Aaron DONOVAN by his next friend Sylvia Donovan v Port Macquarie Base Hospital & Anor JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff seeks to recover damages for personal injuries allegedly suffered by him when he fell from a tree in the backyard of the premises where he lived at 21 Bennett St, Port Macquarie on 18 November 1994. 2 The tree was in the middle of the backyard of the premises where the plaintiff lived with his mother, Sylvia Van Beers, who was the tenant of the Department of Housing and who was concerned about the tree because she considered it dangerous. The reasons she considered it dangerous were that it was split down the middle, it was too high, ants nested in the middle of the branches and she believed it was a poisonous wattle tree, although it has otherwise been described as a melaleuca tree. She was also afraid that children might climb it, fall and hurt themselves. The tree is depicted in the composite photo Ex. A. 3 The three children that she then had and a number of neighbourhood children regularly played touch football, cricket and other games in the backyard and there was evidence from Mrs Bailey and also from Mrs Rafferty that the children regularly climbed the tree, but that whenever she saw them the plaintiff's mother told them not to. She said that she was so concerned about the tree for the reasons I have indicated that she went to the Department of Housing on a number of occasions, complained about the tree and asked that it be removed. The evidence from the Department's officers, particularly Mr Sullivan, leads me to the conclusion that no permanent record was kept of complaints or requests made by tenants unless such complaints or requests were acted upon, and having regard to the evidence of the plaintiff's mother supported as it is by that of Mrs Bailey and Mrs Sims, I am satisfied that the former made a number of requests to the Department prior to the plaintiff's accident for the removal of the tree, but to no avail. After the accident, in May 1995, the Department caused the tree to be removed at a cost of $60. 4 On 18 November 1994 the plaintiff and a group of other children were playing cricket in the backyard of the premises when someone hit the ball into the tree, where it lodged. The plaintiff, who claimed he had not been given any instruction by his mother not to climb the tree, or alternatively did not recall such instruction, climbed up the tree, but as he was climbing his foot lost its grip and he slipped and fell out of the tree landing on the ground on his buttocks. Over the next couple of days his left thigh became tender so his mother took him to the doctor who referred him to the Port Macquarie Base Hospital and he was sent home with antibiotics. The antibiotics did not work so a couple of days later he returned to the hospital and was examined under anaesthesia when a foreign body being a small piece of twig measuring approximately 20mm by 5mm (Ex. J) was removed. Two days later he was returned to the operating theatre due to pungent discharge and extreme pain in the wound. Nothing further was found and a diagnosis of necrotic fasciitis was made. 5 The proceedings were originally commenced against the Port Macquarie Base Hospital (the first defendant) alleging negligence in the diagnosis and treatment of the plaintiff's injury, and later, by amendment, the State of New South Wales (the second defendant) was joined alleging negligence on the part of the Department of Housing, as landlord of the premises, in its management of the premises and in failing to remove the tree after being requested to do so by the plaintiff's mother. During the hearing on 2 September last, after considering the evidence then placed before me concerning the diagnosis and treatment of the plaintiff by the servants and agents of the first defendant, I approved the settlement reached between the plaintiff by his next friend, and the first defendant. The Terms of Settlement are not to be disclosed but are known to all parties and recorded on the court file. The matter has therefore proceeded only against the second defendant. 6 The terms of the tenancy agreement between the plaintiff's mother and the Department of Housing were not put in evidence and no point was taken that it was the mother as tenant in possession and not the Department that was responsible for the tree. As the tree was there when the tenancy commenced, I am satisfied that the Department was responsible for it: Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, Parker v South Australian Housing Trust (1986) 41 SASR 494, Residential Tenancies Act 1987, s 25. 7 I am satisfied that the tree was a dangerous tree to have in the backyard of residential premises where children were likely to be living and/or playing, as they in fact were. What rendered it dangerous in those circumstances was that because of the so-called "split" down the centre the branches commenced to separate close to the ground thereby making it easy, and therefore attractive, for young children to climb, whereas a tree whose branches did not separate until much higher off the ground would not so readily attract climbers. The plaintiff's mother was also concerned that because of the split in the trunk and the ants' nest at its base there was a danger that the tree might fall or collapse; but in my view the main problem was that because of its shape and configuration it was an attraction or allurement to young persons to climb it, and it was foreseeable that if they did, and the tree collapsed, the branches broke or the climbers lost their footing, they would fall and suffer physical injury, not necessarily of the precise type suffered by the plaintiff, but some form of physical injury including broken bones, bruising and/or abrasions. 8 I accept Ms Van Beers' evidence that on a number of occasions over a number of years she complained about the tree and asked that it be removed. In particular I am satisfied that she complained both in person and over the telephone to Mr Sullivan and other employees of the Department who it would seem made notes of such complaint on loose pieces of paper but no permanent record; and although representatives apparently came and inspected the tree on occasions, nothing was done to remove it until after the plaintiff's accident. Because Ms Vicki White was not appointed to Port Macquarie until October 1994, it appears that the complaints made to her by Ms Van Beers were probably made after the plaintiff's accident. 9 In my opinion, the dangerous nature of the tree having been drawn to the attention of the Department's servants, the Department was negligent in not removing it prior to the plaintiff's accident, and such negligence was an effective cause of the plaintiff's falling and suffering his injuries. 10 There is a partial defence raised of contributory negligence, and I am satisfied that the plaintiff had been told by his mother not to climb the tree; but although a child can be guilty of contributory negligence; McHale v Watson (1966) 115 CLR 199, Mye v Peters (1967) 68 SR(NSW) 298, he was at the time only 10 years of age, the cricket ball had become lodged in the upper branches and the game was presumably held up for want of a ball. In these circumstances I would regard the plaintiff's action in climbing the tree merely as disobedience of a parental direction and I would not regard it as a failure to take reasonable care for his own safety. The defence of contributory negligence is not made out. 11 The plaintiff was born on 17 April 1984 and accordingly was 10 years old at the time of the accident and is 15 years old now. On 21 November he was transferred by Air Ambulance to the Royal Alexandra Hospital for Children in Sydney where his wound was debrided on a number of occasions, he spent some days in the Intensive Care Unit, he had blood transfusions and underwent a number of operations including skin grafts. He suffered a lot of pain whilst undergoing the various grafts and other treatment at the Children's Hospital and was discharged from there to the Port Macquarie Base Hospital on 22 December 1994 from which hospital he was discharged on 29 December 1994. The Discharge Summary Notes from the Children's Hospital record that he was suffering suicidal ideation whilst in that hospital. 12 At the time of the accident he was in Year 5 at school and claims to have been doing quite well. He was also a keen Rugby League player. The plaintiff was examined by Dr John F. Davis on 12 January 1999 who observed a large ugly skin grafted area extending basically from the posterior pelvic brim over the hips and lateral aspect of the left thigh with a large number of areas of blistering and skin breakdown which were a little weepy although they appeared to be drying up to some extent. He also noted sensory changes with the upper half of the scar being extremely hypersensitive whilst the lower half was quite hypoaesthetic. There was also a large area of muscle and soft tissue deficit and quite marked prominence of the left femoral head. He found hip movements full with some discomfort at the end of the range of forced flexion and the plaintiff walked with a normal gait. The wound is shown in the photographs Exs. C (shortly after the grafting procedure), D (about December 1994) and E (July 1999). The breakdown of the grafted area shown in Ex. E is a transient but recurring problem. 13 I examined the scarring myself on the outer and frontal aspects of the plaintiff's left thigh. It runs down the thigh for about 12 inches from a position about 1 to 2 inches above the belt line and is approximately 6 inches wide. It is discoloured, botchy, irregular and disfiguring. There is a further area of less disfigurement further down the leg from where the grafts have been taken. The area is hypersensitive and contact causes severe tenderness and pain. He is unable to run, play football or take part in contact sports due to pain and the pain is also aggravated with the use of stairs or heavy lifting. He suffers numbness and paracsthesia in his left hip if he sits for too long. 14 He missed most of the 1995 school year because of his condition when he was theoretically in Year 6 and, notwithstanding the time missed, was considered suitable to commence Year 7 at West Port Technology High School in Port Macquarie, but was initially enrolled for only two days per week. With the amount of time he had missed the previous year and his part-time attendance he had a lot of problems in high school both in keeping up with the work and in disciplinary matters. He was teased by other students which he found difficult to cope with and was unable to play sport because of the consequences of his injuries. He had some counselling from school counsellors, but this was not effective, and following a series of incidents he was expelled in the middle of Year 9 in 1998. He then commenced the Alternative Learning Programme in the Hastings Area (ALPHA) which involved Literacy and Numeracy and continued that until the end of last year. This year (1999) he commenced Year 9 studies in such subjects at the TAFE College in Port Macquarie and he claims to be getting high marks in both courses. 15 He says he feels quite good about himself. He goes to the beach but wears long shorts which are the current fashion. He has no girlfriend but he is really not interested in girls at this stage. He says he has no problem about people seeing the scar, that he does not have trouble talking to people and has a number of mates, a couple of whom are his age and others are older. He listens to live music and when it was put to him by counsel for the defence he agreed that he was a happy fellow, he gets a laugh out of life and is happy with his mates. His mother on the other hand presents a very different picture and presented a very different picture to the psychologist. She describes him as withdrawn, depressed, wants to stay home and keep to himself, says that he walks with a limp, that his life has been ruined and so has hers, that he is not confident with other people, that he only has a couple of friends with whom he goes to the pictures once every two weeks, and she then goes to pick them up and brings them back to her place where the friends stay overnight because they live out of town. She says that although he appears to be comfortable when talking to his friends he is not comfortable when talking to strangers, and that he has a number of off days when he becomes quite withdrawn and retires to his room where he plays his music. She says he has a very "short fuse" and does not like being told what to do. 16 Cheryl Bailey also described him as very withdrawn since the accident and not socialising with children of his own age and not wanting to mix although she had not had a lot of close contact with him and his family over the last twelve months. 17 His brother Anthony Donovan who is two years older than the plaintiff described him as being "pretty cool" before the accident, into sport, good academically and "normal compared to what he is now". His evidence and that of the plaintiff's step father, Craig Jones, who both impressed as truthful, reliable witnesses suggest that the plaintiff is hiding his real feelings and emotions about the injury and scaring. He clearly does not feel good about the scarring, no one could; and I accept that he has become withdrawn to a degree, although it is difficult to assess the extent to which that is due to the injury and scarring and to what extent it is due to natural adolescent development or the difficult family situation, but in my view, because of the nature of the scarring and disfigurement it is likely that his withdrawal is at least largely due to the injury. 18 I am satisfied that he does have friends, goes to the movies, live bands, beach and such like; that he is not presently interested in the opposite sex, but he is only 15 years old, although having regard to the nature and extent of the scarring he will be at a disadvantage in this regard as he grows older. 19 The psychologist, Diana Reid, concluded that he was severely depressed which was manifested by symptoms of withdrawal, irritability, outbursts of aggression, low self esteem and difficulty maintaining attention, and suggested the possibility of a Post Traumatic Stress Disorder but did not make a final diagnosis in that regard. I am satisfied that the plaintiff tends to hide his real feelings about his disfigurement and disabilities; and also he seemed to have a tendency to agree with propositions put to him, especially in cross-examination. Although he has on occasions talked in terms of having little or nothing to live for, I am not satisfied that there is any real likelihood of him taking his own life. 20 The plaintiff has suffered and will continue to suffer considerable pain and discomfort, he has extensive and ugly scarring, there are the restrictions on his activities to which I have referred and he is significantly depressed, although not to the extent described by his mother. The scarring and hypersensitivity of the left hip is unlikely to be improved by any further surgery. 21 I assess the plaintiff's general damages at $180,000 of which I apportion $60,000 to the past, and I allow interest on the latter amount at 2% per annum for five years, namely $6,000. 22 Loss of earning capacity was left very much at large on the evidence. The only material adduced as to what he could have earned if not injured was the table of Average Weekly Earnings (Ex. O), which is of very little assistance as it includes the wages of highly paid executives, managers and employees with professional qualifications, as well as the more menial and lowly paid jobs. There can moreover only be guesswork and speculation as to what he might have done if not injured. He started a motor mechanics course recently but decided to put it off until next year. He can stand for about forty-five minutes and sit for about one and a half hours but then has to get up and move around to avoid pain in his hip area. 23 He has worked with his current step father doing furniture removalist work but this made his hip sore and he needed to rest. He has also recently expressed an interest in training as a boilermaker, but whether he would have obtained an apprenticeship as a motor mechanic or boilermaker is uncertain, and he would have difficulty doing such work now, particularly bending, stretching, going under motor vehicles and such like due to the hypersensitivity of his scarring; and his step father says that although he tried hard, because of the injury, he would not be employable on the open market as a furniture removalist. 24 His brother Anthony has just completed his Higher School Certificate (and moved out of home to do so) but gave no evidence of what career he hoped to pursue apart from the possibility of a career in top class Rugby League, where he may have some prospects. Although the plaintiff also enjoyed playing the game and according to his brother could "run straight and hard," I am not satisfied his prospects in that regard were as good as his brother's. His other older brother's whereabouts and occupation, if any, were not the subject of any evidence and their natural father, according to Ms Reid's report on the family background, is it would seem not generally engaged in gainful employment. His current step father is employed in the furniture removalist business whilst his mother currently works part-time as an assistant teacher, teaching literacy, reading and writing to aboriginal children in the kindergarten class at Port Macquarie Primary School. 25 Moreover, although reference was made to the good results he is currently obtaining in the courses he is presently doing at the TAFE College there was no evidence as to the level, standard or content of such courses. 26 In all the circumstances I consider that if he had not been injured the plaintiff would probably have been engaged in unskilled, labouring or process work, probably with some periods of unemployment. A lot, if not most of those occupations are now closed to him because of the pain in his thigh, particularly if it is bumped, and his inability to run, lift heavy weights, or to stand or sit in one place for any length of time, and to this extent I agree with the opinions expressed by Peter Barron in his report that he would be fit for process work, but the opportunities for such work in his local area are greatly limited. 27 The plaintiff is currently only aged 15 years and if not injured may have remained in school for another 3 years, and in any event would not have earned full adult wages for some time. For this reason I will allow loss of earning capacity for 47 years (from 18 years to 65 years) less 15% for vicissitudes but the whole amount postponed for 3 years. 28 Doing the best I can with the meagre materials available, I assess the plaintiff's loss of earning capacity at $200 net per week and I allow this amount capitalised for 47 years at 3% per annum less 15% for vicissitudes namely $225,300 postponed for 3 years at 3%, namely $206,150. 29 In regard of loss of superannuation benefits, no figures have been placed before me but doing some rough calculations similar to those used in some other cases and based on a wage loss of $230 per week gross I allow under this head $19,690. 30 Out-of-Pocket expenses to date are agreed at $5,457. There is no formal claim for future out-of-pocket expenses and no evidence in respect thereof except that attached to the report of Ms Reid in respect of psychological counselling. The plaintiff has not had any counselling since he left school and expressed no intention to have it, but some psychological counselling would in my opinion be beneficial. Unfortunately Ms Reid gives three sets of figures, all dated 10 July 1999, but no explanation for the different rates. Also I do not consider the number of consultations she advises to be reasonable. For future psychological counselling I allow $3,000. 31 The various heads of damages may therefore be summarised as follows: General damages $180,000 Interest on past general damages 6,000 Out-of-pocket expenses to date 5,457 Future psychological counselling 3,000 Loss of future earning capacity 206,150 Loss of future superannuation benefits 19,690 $420,297 32 I direct the entry of judgment for the plaintiff against the second defendant for this amount and order the second defendant to pay the plaintiff's costs of the proceedings against it. 33 I direct that the amount of the judgment be paid into Court and then to the Public Trustee for investment on behalf of the plaintiff in accordance with the Damages (Infants and Persons of Unsound Mind) Act 1929. ----------------- Last Modified: 12/22/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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