New South Wales Supreme Court CITATION : STRATH v STATE OF NEW SOUTH WALES [1999] NSWSC 391 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 17586/1985 HEARING DATE(S) : 12-15 April 1999 JUDGMENT DATE : 30 April 1999 STEVEN STRATH, FORMERLY KNOWN AS STEVEN ORLE, BY HIS TUTOR, THE PROTECTIVE COMMISSIONER PARTIES : v STATE OF NEW SOUTH WALES JUDGMENT OF : Master Malpass COUNSEL : PLAINTIFF: MR M ELKAIM DEFENDANT: MR G LAUGHTON SOLICITORS : PLAINTIFF: McLAUGHLIN & RIORDAN DEFENDANT: I V KNIGHT, CROWN SOLICITOR CATCHWORDS : NEGLIGENCE; child injured in fall from playground equipment in school grounds during non-school hours; effect of head injury on child with pre-accident intellectual deficits; residual earning capacity. ACTS CITED : Government and Crown Suits Act 1912 CASES CITED : Chappel v Hart 72 ALJR 1344. Fitzgerald v Penn (1954) 91 CLR 268. DECISION : SEE PARAGRAPH 55 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS FRIDAY 30 APRIL 1999 17586 of 1985 Steven Strath, formerly known as Steven Orle, by his Tutor, the Protective Commissioner v State of New South Wales. JUDGMENT 1 The plaintiff makes a claim for damages arising out of personal injury. The personal injury was suffered following an incident that took place in the grounds of the Cabramatta Public School. 2 Questions of liability and quantum are in issue. Both sides have called oral evidence. There has been tender of many photographs and much documentation (including experts' reports, school records and statements). The trial extended over four days. 3 The plaintiff was born on 18 August 1975 (he is now 23 years of age). He has an elder brother (Joseph born on 3 October 1972). His parents separated in July 1981. His mother married Terence Strath on 7 August 1985. He continues to live with his mother and step-father. 4 In 1982 he commenced his schooling at Cabramatta Public School. The incident took place on 12 March 1984. The plaintiff was then eight years of age and in year 3. His brother was then in year 6 and about 11 years of age. He and his brother had returned to play in the school grounds during non-school hours. 5 The plaintiff was then living with his mother and brother at Cabramatta. They occupied a unit in a block of units located near the school. It was an area of residential unit blocks and there were no near-by play areas. The plaintiff and his brother had adopted the habit of returning to the school (usually with other children) and playing on the grounds after school hours (generally during a period after 3.00 pm and up to 6.00 pm). Access to the play-ground was had by climbing over what has been described as a brick fence or wall. The relevant part of the playing area had inter alia a fenced tennis court, cricket nets and a pine log construction known as a fort. The fort is depicted in the photographs which comprise Exhibit A. These photographs were taken by the plaintiff's mother shortly after the incident. Subsequently, the fort was removed. When this took place is somewhat unclear (the plaintiff's mother said that it was no longer there when the plaintiff returned to school in about June 1984). 6 The plaintiff has no memory of the day of the incident. Joseph was not present when the incident took place, as he had left the play-ground with friends prior to the incident to go to a nearby shop. By the time of Joseph's return to the play-ground, the ambulance was in attendance and the plaintiff was seen lying on the ground in the play area near the fort. Joseph does not know the identity of any of the children with whom the plaintiff may have been playing. The plaintiff's mother came to the school inter alia on both 13 and 14 March 1984 (presumably she took the photographs on one of those days). 7 The plaintiff suffered a depressed fracture of the left side of the skull. This was a severe head injury and he has been left with severe physical problems (including a right-sided heavy paresis). There will be deterioration of the right-hip joint. His medical reports are to be found in Exhibit H. 8 Following the incident, the plaintiff was first taken by ambulance to Fairfield Hospital. He was then transferred to Westmead Hospital. He underwent a left parietal craniotomy and evacuation of the haematoma. He then remained on ventilatory assistance until 20 March 1994. He was discharged from hospital on 6 June 1984. 9 In June 1984, the plaintiff returned to school. Firstly, he attended for one or two hours per day. By the end of the year, he was attending for the full day. He completed his primary school education at Cabramatta Public School at the end of 1987. In 1988, he commenced schooling at Lyrnea High School in a special class. Because of difficulties, he moved to Lawrence Hargrave School For Special Purposes. He completed his High School education in 1993. 10 Since the incident, the plaintiff has undergone surgery. There was surgery to his right hip in 1991. He had surgery to his right ankle in 1992. There was further surgery to his right hip in 1993. Later in the same year, he underwent drainage of a haematoma in the right groin. Apart from surgery, he has received considerable other treatment (including speech therapy and physiotherapy). He continues to see his general practitioner (Dr Gibson) about every three weeks. At school, he was subjected to bullying and teasing. He developed the view that he was different to others and this has led to depression. He says that his visits to Dr Gibson assist with this problem. He has been the recipient of services provided by his mother and his step-father. 11 After completing his schooling, the plaintiff attended Liverpool Tafe. He completed a number of courses. He ceased attendance at Tafe when no further courses were available to him. His attempts at obtaining employment have been unsuccessful and he is presently unemployed. In 1997, he undertook a four-month work experience programme. On his behalf, it is said that realistically he is unemployable. In contrast, the defendant contends that he does have a working capacity. He has a keen interest in fishing and presently devotes much of his time to that activity. 12 Save for acquaintances formed through fishing activities, the plaintiff has no friends. He does not have a girl-friend. His mother concedes that he has the capacity to drive a modified motor vehicle and that the acquisition of a licence and a vehicle may remove an impediment to him having a girl-friend. He accepts that at some time in the future he will have to live independently of his mother and step-father. He presently lacks the confidence to live on his own. 13 Since December 1993, the plaintiff has been receiving a Disability Pension. He has his own bank account (a savings account). The operation of the account receives some supervision from his mother. 14 The proceedings were commenced in 1985. They were brought in the name of Steven Orle against Trevor William Haines. The plaintiff has taken the name of Steven Strath. His affairs are now in the hands of the Protective Commissioner. His claim is as is now pleaded in the Amended Statement of Claim filed in Court on 12 April 1999. The defendant is now the State of New South Wales (following the repeal of the Government and Crown Suits Act 1912). The alleged cause of action is founded in negligence. The defendant denies negligence and alleges contributory negligence. 15 Unfortunately, this case now comes on for trial more than fifteen years after the incident took place. The fort has been removed. It is not unexpected that witnesses profess to have and in fact have loss of recollection. The loss of recollection is of a significant order. This takes on particular importance when the evidence tends to be sparse and throws up conflicting material. Two potential witnesses (Miss Ford who was the School Principal at the time of the incident and Mrs Jagoe who was a Deputy Principal at that time) have died. Other potential witnesses have not been called. Witnesses who have been called have not been questioned on relevant matters which could have been expected to fall within their state of knowledge. This was a case that required a separation of the issues of liability and quantum and a determination of the former question at the earliest possible time. A fair trial of the liability question is now a very difficult task. 16 The plaintiff himself was the first witness called. He relied on evidence from his brother, his mother and his step-father. Also, he called Mr Ali Akin. An expert (Mr Pilton a landscape architect) prepared a report (Exhibit J). He gave supplementary oral evidence and was cross-examined. One of the plaintiff's medical experts (Dr Middleton) also gave supplementary evidence (she had prepared two reports) and was cross-examined. The defendant called Mr Manwaring (who is now a Superintendent of Schools and was the Deputy Principal responsible for years 3 - 6 in 1984) and Miss Rooney (the plaintiff's class teacher in the years' 1984 and 1985). 17 The first question to be addressed is the circumstances of the accident. The only known eye-witness is Mr Ali Akin. He was born in 1973 (about 11 years of age at the time of the incident). He lived in a nearby block of units and was a student at the school in year 5. He was not a friend of the plaintiff. I shall now refer to his oral evidence. He was playing in the tennis court area (roller skating). He observed the plaintiff playing alone on the fort. (For completeness, I should mention that during his cross-examination the plaintiff rejected the contention that he sometimes played alone). The plaintiff had been seen both ascending and descending the fort on a number of occasions. He had been using the means of descent provided by what has been described as fireman's poles. The plaintiff was seen attempting a descent by means of the poles which led to him falling head-first. His head made contact with the ground surface in the area of the poles. His body finished up wedged between the two poles. 18 Mr Ali Akin had provided a statement to an investigator for the defendant on 22 March 1989 (about 5 years after the incident and when he was 15 years of age). It has been admitted as Exhibit G. It contains the words, "I can't remember any pieces of wood sticking up. But they might have been there". 19 His version of the incident itself was not challenged. However, there is issue as to other aspects of his evidence. 20 Mr Ali Akin had described the ground surface as being of compacted sand. He said that after the incident sand had been placed at the base of the fort. Initially, he could not give an exact date for when this was done. He later said it was "a month or so" after the incident. In cross-examination, he initially said that he knew the sand around the fort was not loose. Later, when shown photograph A3, he said "I can't say there is loose sand". He was not asked to put his mind to the question of ground surface until about 9-10 months ago. He conceded that his recollection had faded since the incident but maintained that he was 90% sure about what he said concerning the sand. He did not have an accurate recollection as to when the fort was removed. There was conflict between his evidence and what was later said by Mr Manwaring. Mr Manwaring said that there was a covering surface of river sand under the fort, which was placed there for the purpose of being soft to take the fall of students. He described it as being a soft surface. It was there prior to the incident. He could not be specific as to the depth of the sand. He believed that Exhibit A showed sand at the bottom of the fireman's poles. He was first asked to put his mind to the matter of the nature of the surface in the days following the incident. 21 Mr Manwaring had made a statement on 22 November 1985. It was admitted as Exhibit 6. The statement refers to an interview had with Ali Akin. It records that Mr Manwaring was told by Ali Akin "that he had been playing in the tennis court with a ball". It also refers to a statement made to him by the plaintiff's mother "that another boy had pushed Steven from the climbing equipment". 22 Neither of the statements (of Mr Akin and Mr Manwaring) made reference to the surface at the base of the fort. Neither party questioned Miss Rooney concerning this matter. The position was similar with both Joseph and his mother. Mrs Akin (who may have seen the incident) was not called. Mr Akin (the father of Mr Ali Akin) was not called (he was in attendance at the scene following the incident). Mr Milic (an employee who appears to have had responsibility to maintain playground areas) was not called. There is evidence that he was close to retirement at the time of the incident. The plaintiff made a call for any statement made by him. No statement was produced by the defendant. The plaintiff made a call for photographs held by the defendant. The photographs produced in response to this call were made the subject of a claim for privilege which was not challenged. The evidence reveals that these photographs were not shown to Mr Manwaring. As could be expected, these matters generated a plethora of submissions from the bar table. 23 The evidence demonstrates that the school-grounds were regularly used for play by children in non-school hours. Access to the grounds was easily had by climbing over the brick fence. The school had knowledge that children were playing on the grounds in non-school hours (there could be up to thirty children on the grounds when several soccer matches were played in the tennis court area). Steps were taken to prevent this happening. There was oral instruction to leave the school grounds given to particular students found there during non-school periods (including to the plaintiff shortly before the incident). The matter was the subject of comment at school assembly and newsletters were sent to parents (viz that the school was out of bounds during non-school hours). There was a walk of the perimeter of the school buildings at the end of the school day. (One of the purposes of this walk was to ensure security of school buildings and contents). 24 There is material to suggest that prior to the incident the plaintiff may have been of low average intelligence. There is material to suggest that he had difficulty keeping up with school work. There was testing carried out in 1982 (it revealed inter alia an IQ of 84). In year 2 he was functioning in the bottom 5 of the grade. In reading and mathematics he was operating two years below his chronological age. He was placed in an intellectually mild (IM) or Opportunity Abnormal (OA) class prior to the incident (in February 1984). There was significant improvement in his skills by the end of 1985. He remained in an OA class whilst at primary school. There were disciplinary problems prior to the incident. By the end of 1985, his behaviour had become more controlled. He was not as popular as some other children were in his class. 25 I now turn to the question of liability. The existence of the alleged duty of care was not in issue. Breach of that duty was in issue. Ultimately, two matters were agitated. The first may be generally described as a matter concerning the ground surface at the base of the fort. The second may be generally described as a matter concerning one of fencing or access to the fort during non-school hours. The first matter was the one principally relied on by the plaintiff. 26 The first matter was not raised until a very late stage in the proceedings. It was raised by the amendments which appeared in the Amended Statement of Claim filed in Court on 12 April 1999. This pleading contained the fresh allegation that the ground surface below the children's fort was a packed earth surface. One of the particulars of negligence introduced by this pleading was failing to provide or ensure an appropriate ground surface under and around the equipment. 27 The original pleading had alleged that the plaintiff's head had struck one of two logs protruding from the fort. The amended pleading alleged that his head struck either the packed earth surface or one of the logs. 28 The case proceeded on the basis that the providing of a soft sand surface would have been appropriate ground surface. The question of fact in issue was the nature of the actual surface at the time of the incident. Both Mr Akin and Mr Manwaring said that the ground surface was of sand. The issue of fact thrown up by their evidence was whether or not it was compacted sand or a soft sand surface. 29 At this stage, I should observe that I closely observed the demeanour of all witnesses. In assessing credibility, I have taken both the evidence and demeanour into account. 30 It seems to me that the late raising of the ground surface matter may be of significance in explaining some of the questions agitated on this issue. It may go some way to explain the lack of reference to it in material and the lack of attention to it otherwise. For completeness, I should add that there is history in expert reports which records that the plaintiff's head hit a timber pole or a protruding peg. It may also be observed that whilst the ground surface may have been seen as a relevant matter, there may have been initial focus on the suggestion that the plaintiff had been pushed from the fort and later focus on the suggestion that he struck his head on one of the logs. 31 The fort was a piece of equipment for use by the younger children (it was placed in the K2 playground area adjacent to the K2 classes) at the school. The material does not suggest that Mr Akin played on the fort. When he went to the fort, his attention may have been concentrated on the injured plaintiff. He was then about 11 years of age. 32 Mr Manwaring was a school administrator involved in the making of investigations following the incident. He inspected the fort on the following day (inter alia to view the line of sight from the fort to where Mrs Akin was standing on her balcony). It was initially said that he was a witness who was not prepared to make concessions. This submission was later withdrawn. During the course of his evidence, Mr Manwaring both corrected earlier evidence and made concessions (inter alia concerning his recollection as to matters such as the fort and the fence). However, his evidence remained firm on the matter of the presence of the sand at the base of the fort. He gave me the impression of a witness doing his best to give honest and reliable evidence. 33 Both parties contend that Exhibit A gives support to their respective case. In my view, these photographs afford little assistance on this issue. At best they may be regarded as giving an ambiguous impression. There are problems occasioned by under-exposure and the presence of shading. At the very least it can be said what is depicted by the photographs is not inconsistent with what has been said by Mr Manwaring. 34 It is not said that either of the witnesses has set out to deceive the Court. It is crucial to the case of the plaintiff that Mr Akin's evidence be preferred to that given by Mr Manwaring. The Court is asked by the plaintiff to not accept Mr Manwaring's evidence. 35 I am not satisfied that I should prefer the evidence given by Mr Akin to that given by Mr Manwaring. I reject the submission that I should not accept Mr Manwaring's evidence on this question. For completeness, I shall add that I prefer the evidence given by Mr Manwaring to that given by Mr Akin. These findings are decisive on the principal matter argued in respect of the allegation of breach of duty. 36 I now turn to the other matter argued on the question of breach of duty. Whilst this matter was not abandoned, it was not argued with great vigour. One problem for the plaintiff is that this matter received a lack of support from his own expert. In Exhibit J, Mr Pilton said inter alia;- "Finally there is the question about the propriety of the school failing to construct an adequate fence to exclude young children from using the school grounds after hours. To be fully effective such a fence would have to have the physical (and therefore aesthetic) attributes of a prison fence which would be unlikely to be acceptable in today's world where schools are intended to be 'warm and friendly' places!" 37 I have already made mention of the steps taken by the school to prevent children from entering upon the school premises during non-school hours. I should also mention that during a routine perimeter walk, the plaintiff had been found on the premises between 4 and 4.15 pm on a day in early March 1984. He had been asked to leave. 38 I am not satisfied the part of the case founded on this matter has been made out. In my view, the plaintiff also fails on this matter. 39 The plaintiff bears the onus of satisfying the Court that he has a cause of action (on the balance of probabilities). In my view, he has failed to satisfy the Court that there was a breach of duty. 40 Whilst the findings that have been made dispose of the question of liability, I should mention two other matters which were agitated by the parties. Firstly, there was a question of causation. Secondly, there was a defence of contributory negligence. 41 Mr Pilton provides the only expert material on the question of liability. He did not have the advantage of inspecting the fort. He appears to have prepared his report on an implicit assumption that there was a hard surface at the base of the fort. His report is founded on the premise that the ground surface around the structure was inherently dangerous (the basis for this premise is not specified). He was cross-examined at some length. He conceded that any of the measures proposed by him and a soft sand surface ("safe falling zones") do not serve the purpose of preventing injury. He said that "The idea is to reduce the severity of injury". They do not exclude the possibility of a significant injury for someone falling head first on to the surface (be it rubber matting, pea gravel, soft sand or pine bark). Both parties have referred the Court to passages in the judgments delivered in Chappel v Hart 72 ALJR 1344. 42 It has been said that causation is a complex and controversial problem. The plaintiff is required to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered. Causation is essentially a question of fact to be resolved as a matter of common sense (Fitzgerald v Penn (1954) 91 CLR 268 at 277-278). It arises in the context of attributing responsibility for the damage that has occurred. 43 In this case, the only expert is of limited expertise. The plaintiff's case has its other evidentiary deficiencies. In my view, if the plaintiff had been able to prove breach of duty, I would not have been satisfied that he could demonstrate the requisite causation between such breach of duty and the damage suffered. 44 I shall just mention some of the matters relied on by the defendant in propounding the defence of contributory negligence. It was said that there was material indicating that the plaintiff had been shown by staff how to use the fort. Further, it was said that his use of the fort prior to the incident demonstrated that he knew how to use it. It is finally said that the plaintiff did not show sufficient regard for his own safety and that this contributed to his injury and that if a finding of negligence was made the plaintiff should bear responsibility up to 30%. Apart from joining issue on these matters, counsel for the plaintiff placed emphasis on the youth of the plaintiff. In the light of the findings made, it is unnecessary to proceed further with a consideration of this matter. 45 Although the question of liability has been determined adversely to the plaintiff, there is authority for the view that the Court should in appropriate cases still proceed to express its views on the question of quantum. 46 The plaintiff propounds a very large claim (in the order of at least $2,300,000) which comprises numerous heads of damage. Both parties have prepared a schedule of damages. 47 Subject to the question of liability, there is consensus as to two heads of damage only (out-of-pocket expenses in the sum of $3,395.75 and cost of future treatment in the sum of $34,315.56). Apart from this consensus, there is some common ground as to inter alia rates and periods of time. The principal areas of dispute concern general damages, past economic loss, future economic loss, past care and future care. The distance between the parties is enormous. In addition to these matters, there are lesser disputes concerning matters such as transport costs and the quantum of the costs to be allowed for the build-up of the plaintiff's shoes. 48 The plaintiff claims that the incident had left him with both a reduced intellectual capacity and physical disabilities. The question of the severity of the physical disabilities has aroused little dispute. The real contest concerns the question of the alleged reduction in intellectual capacity caused by the head injury in the incident. On behalf of the plaintiff, it is seen in terms of a reduction from low average to border-line retarded. Largely, the defendant takes the view that if there was any reduction in intellectual capacity it was not of significance. 49 The resolution of disputes of this nature is usually a difficult task. The present case is no exception. It suffices to merely mention some of the problems. The plaintiff suffered the severe head injury at a young age. At the time of the injury, he suffered from intellectual deficits. Relevant expert opinion has been founded on erroneous history and/or without the benefit of material of importance. 50 The plaintiff's material presents a picture of a person who has inter alia no realistic potential for work and needs future care because of the combination of the intellectual deficits and physical disabilities suffered because of the incident. Largely, the material provides little assistance in differentiating that part of the claimed loss which is attributable to the plaintiff's physical disabilities as opposed to that part which flows from any reduction in intellectual capacity. 51 In the presentation of the plaintiff's case particular stress is placed on the material provided by Dr Langeluddecke, Dr Gilandas and Dr Middleton. Dr Langeluddecke prepared a report dated 25 June 1986. The report relied on a history provided by the plaintiff's mother (inter alia in relation to pre-accident personality functioning and premorbid mental functioning). The history was not consistent with the evidence given at the trial (this meant inter alia that her assessment of the plaintiff's premorbid level of intellectual functioning was based on at least average academic achievements prior to his head injury). Dr Gilandas has provided three reports (the first was dated 27 May 1995). He had a history that the plaintiff was reputedly of low average intelligence pre-accident. He proceeded on the basis that IQ tests of children below the age of 8 tend to be unreliable. His testing suggested that the then intellectual functioning of the plaintiff approached the borderline mentally retarded range. Both Dr Langeluddecke and Dr Gilandas took the view that the head injury had a significant effect on the plaintiff's pre-incident difficulties. The plaintiff's expert material has to be seen in the context of the defendant's expert material together with the school records and the evidence of Miss Rooney. Miss Rooney was an impressive witness. She said that during the 5 weeks prior to the incident the plaintiff seemed to be appropriately placed in the OA class. She took the view that the plaintiff had the prospect of improvement but only to a certain level. The plaintiff's experts do not appear to have had the advantage of the school material. Whilst the school records should be treated with caution, they afford guidance as to future potential. 52 The severity of the head injury of itself gives support to the view that the incident may have led to some loss of intellectual functioning. There is evidence which reinforces that view. However, I am not satisfied that it leads to a position where the Court can identify the extent of that loss with any precision. On balance, the best that the Court can do in the circumstances is to find that there is some loss of functioning attributable to the incident. 53 I am not satisfied that the injury attributable to the incident has left the plaintiff devoid of residual earning capacity. There is some capacity. The range of work available may not be large and may be of a restricted nature. Clearly, the plaintiff is in a position of significant disadvantage in the open labour market. 54 The assessment task in this case would be complex and time consuming. If an assessment were to be made, it would in many respects be arbitrary in nature. This would be the best that the Court could do in the circumstances of this case. In the light of the views expressed on the question of liability, it seems to me that there is a present lack of utility in pursuing that task in this case. 55 There will be judgment for the defendant. The plaintiff to pay the costs of the proceedings. Exhibits may be returned. I hereby certify that paragraphs 1-55 are the reasons for judgment of Master Malpass. Dated 30 April 1999. (H D LEWIS) Associate. 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