New South Wales Supreme Court CITATION : SAINSBURY v GREAT SOUTHERN ENERGY PTY LTD [2000] NSWSC 479 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 400010/99 HEARING DATE(S) : 23/05/00, 24/05/00 JUDGMENT DATE : 26 May 2000 PARTIES : Andrew Sainsbury By His Tutor Dianne Sainsbury v Great Southern Energy Pty Ltd carrying on business as Great Southern Energy JUDGMENT OF : Barr J at 1 COUNSEL : Plaintiff: BMJ Toomey QC/A Black Defendant: IDM Roberts SOLICITORS : Plaintiff: Walsh & Blair Defendant: Phillips Fox CASES CITED : Kelly v Bega Valley County Council, Court of Appeal, NSW, 13.9.82, unreported McHale v Watson (1965-1966) 115 CLR 199 DECISION : See paragraphs 42 and 43. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION AT WAGGA WAGGA GRAHAM BARR J Friday, 26 May 2000 40010/99 - ANDREW SAINSBURY BY HIS TUTOR DIANNE SAINSBURY v GREAT SOUTHERN ENERGY PTY LTD CARRYING ON BUSINESS AS GREAT SOUTHERN ENERGY JUDGMENT 1 HIS HONOUR: The plaintiff sues the defendant for compensation for injury, loss and damage he suffered when he climbed a power pole and received electrical burns. The defendant owned and controlled the power pole and associated electrical installation. Liability has been admitted but there is an issue whether the plaintiff himself was negligent. 2 The plaintiff was born on 12 August 1985. About two weeks before the date of his injury, when he had just turned twelve years of age, he and a friend of his of about the same age went to Glenfield Park Reserve, a public place near his friend's house. Power lines ran across the reserve, supported on wooden poles. The pole with which this action is concerned was well supplied with cables and projections, fixed almost to ground level, that offered easy hand- and footholds to any boy with any interest in adventure. The pole was fitted with conventional metal footholds coming down to within three metres of the ground, but they could be easily reached in the manner I have indicated. 3 The plaintiff's friend dared him to climb the pole and, in response, he climbed part of the way up and then descended. This, he said, was because he thought he would be electrocuted. Then his friend climbed the pole and went all the way to the top and back. He suffered no injury. 4 The boys returned to the plaintiff's friend's house and, perhaps recalling the fact that his friend had successfully negotiated the full climb uninjured, the plaintiff said that he thought that he could not get electrocuted unless he touched two wires. 5 The plaintiff continued to be of that belief until he and his friend and other boys returned to the same place two weeks later. There was no dare on that occasion. All the boys present agreed to climb the pole. The plaintiff went first. 6 The pole carried three wooden crossbars. The plaintiff's intention was to climb to the lowest of those bars, a level well below that to which his friend had successfully climbed two weeks earlier. When his buttocks were about level with the lowest crossbar electricity from one of the conductors arced into his body and he received his injuries. 7 The apportionment of negligence between parties requires a comparison of the degree of departure by each party from the standard of care which the law requires. The standard of care required of the defendant is that of the reasonable man, the reasonable electricity undertaking with all the knowledge and skill it has or ought to have. 8 Contributory negligence on the part of a child consists of a failure to exercise that care reasonably to be expected of an ordinary child of the same age. McHale v Watson (1965-1966) 115 CLR 199 per McTiernan ACJ at 205, Kitto J at 215, Menzies J at 223 and Owen J at 229. See also Kelly v Bega Valley County Council, Court of Appeal, New South Wales 13 September 1982 unreported. 9 It is clear that on both climbs the plaintiff recognised the danger that he might be electrocuted. That recognition led to his descent on the first occasion. As he conceded in cross-examination, he realised on the second occasion that it was very dangerous to climb the pole. The danger he recognised was from the wires carried on the pole. He knew that there was a wire on the bottom crossbar. 10 It seems to me that an ordinary twelve year old boy in the plaintiff's position and knowing what he knew would not have climbed the pole. I think that he fell short of the standard of care required of him. 11 In Kelly v Bega Valley County Council Glass JA identified a number of ways in which the comparative negligence of parties might be compared or measured. 12 The first three factors were the intrinsic danger of the activity under examination, its duration and the maturity of the actor. His Honour defined a fourth factor which applied to the appeal then under consideration, and it applies equally here, namely that the defendant's default constituted an allurement which in a real sense provoked and facilitated the default of the plaintiff. 13 By those criteria, the defendant was a special undertaking which transmitted electricity at lethal voltages through a public park provided for the recreation of members of the public, including children. It owed a responsibility to all those who used the reserve to carry electricity safely. It failed altogether in its duty to do so. The plaintiff's default endangered only himself. 14 The defendant's default applied for a long time. The pole was a fixture and the photographs show that it was by no means a new installation. The plaintiff's default was short-lived and impulsive. 15 The defendant's default was that of a mature man knowing all the dangers of the carriage of lethal voltages of electricity in the circumstances. The plaintiff was an immature boy twelve years old. 16 The defendant's default constituted an allurement which actually provoked and facilitated the plaintiff's default. As photographs of the pole demonstrate, the defendant never made any attempt to keep children away from the electrical equipment carried on the pole. No guards were installed, such as one commonly sees which prevent access to dangerous places. On the contrary, it provided what I regard as positive encouragement to climb. 17 The plaintiff was a boy who, though he recognised danger, had no full appreciation of the consequences of climbing the pole. His limited experienced led him to the erroneous belief that he would not be injured if he took care not to touch two wires at once. 18 Taking these four factors into consideration, I think that negligence should be apportioned nine-tenths to the defendant and one-tenth to the plaintiff. 19 The plaintiff remembers little of the accident itself. He appears to have been knocked unconscious by the force of the charge. He fell part way down the pole and was held up when his shirt caught on one of the pegs. His friend tried to prevent him from falling further, but eventually he fell to the ground, landing on his left hip. Fortunately, the break in his fall prevented his also sustaining the serious orthopaedic injuries which would surely have followed if he had fallen the full distance from the crossbar. 20 The charge entered his left buttock and emerged over the outer side of the right knee and lower leg, causing full thickness burns. He was taken to Wagga Wagga Base Hospital and placed in intensive care. He was in great pain and required the administration of morphine. Next day he was taken by air ambulance to the burns unit at the Children's Hospital, Westmead. There he remained for one month and during that time several debriding treatments were carried out to the wounds over the left buttock and right lower leg. Skin grafting was performed in October. He was sent to home after a month and his mother carried out daily dressing of his wounds for the next few weeks. He wore a pressure suit in an attempt to minimise the scarring. 21 The plaintiff was disturbed every night by recurrent nightmares. As the skin grafted areas healed he was troubled by an intense, unpleasant itching. That was aggravated by the hot summer weather and the need to wear the pressure suit. Eventually he was able to cease taking morphine and was switched to Panadeine and a drug to control the itch. 22 All these events took place during the school holidays, so the plaintiff did not miss much time from class. However, when he got back to school he found it difficult to cope with class work because it was uncomfortable for him to sit on a hard chair and difficult to concentrate in view of the unpleasant itch in the scarred areas of his left buttock and right leg. The drugs he had to take made him drowsy and interfered with his concentration, too. 23 The plaintiff's school reports show that he was not doing especially well at school before his injury. He was described as likeable, but having trouble doing what he was asked to do. His behaviour, attitudes and work habits lacked consistency. He had not progressed as quickly as those having the care of him would have liked and was easily distracted from his work. 24 Following treatment, he found himself in high school and initially suffered the difficulties I have summarised. However, his reports show that he continued to do poorly at times well after the unpleasant effects of his injuries and the need to wear the pressure suit might have been expected to have stopped affecting him to any great extent. He continued to be easily distracted and to fail to do work that was expected of him. 25 I will not deal with the detail of his reports, but it is apparent that he is not a high academic achiever. It was submitted on his behalf that the probability is that he will be fit only for manual work, and I think that this is probably so. 26 The plaintiff's scars are now of an age at which those advising him are prepared to offer opinions about the probable result. The scarring to the left buttock extends into the lower back and measures eighteen centimetres by twelve centimetres. The graft was meshed and that has resulted in a speckled, grid-like appearance. It is not surprising that the plaintiff is particularly embarrassed about this scar. 27 There are three skin grafted areas on the front and outer aspect of the right knee. They measure ten centimetres by eight centimetres, six centimetres in diameter and eleven centimetres by twelve centimetres respectively. They are slightly depressed and circular or rectangular in shape. They are prominent. 28 On the right posterior thigh there is a donor site sixteen centimetres by sixteen centimetres and on the anterior thigh a further site nineteen centimetres by fourteen centimetres. The skin in those places is of a different texture from the surrounding skin and, although they do not have the appearance of the grafted burns, they represent a modest cosmetic deformity. 29 In the opinion of Dr Olbourne it would be possible to revise the surgery of the buttock, but that would be a major affair and would require a very large rotation flap to replace the depressed area on the buttock. The scarring attended by the flap development would present yet another cosmetic deformity with which the plaintiff would have to contend, and it would remain a matter of judgment for him whether he would be better off with things as they are, in spite of his considerable embarrassment, or whether to engage in another round of surgery. 30 The areas on the right lower leg could be improved without such serious consequential effects. 31 I have already mentioned the plaintiff's embarrassment about his appearance. His injuries have made him the subject of ridicule at school, where boys call him "burnt chicken" and joke that his penis was burnt off. He has fewer friends than before. 32 He rarely wears shorts because he does not wish to expose the scars to public view. 33 He is a keen rugby league player, and has continued to play in spite of his difficulties. He wears a stocking to cover the right knee and protect it from hurt, but it bleeds when knocked. The right knee hurts when he runs and he thinks that it is weaker than the left. The buttocks hurt, with a nerve pain, when knocked. 34 He has developed symptoms of anxiety. He will not go to bed unless the doors and windows of the house are all locked. He bites his fingernails down to the quick. 35 The only hope now held out for improvement of his condition and symptoms is the possible revision of the scars and an improvement in their appearance, subject to new cosmetic deformities which those procedures will necessitate. I think that the plaintiff will continue to have the pain, restriction, embarrassment and anxiety that he now has for the rest of his life. They will seriously interfere with the things he can do physically, including his work. They will interfere with his relations with people. They will interfere with intimate relations. Together, his condition and symptoms are very serious indeed. 36 I assess general damages at $200,000, which will incorporate an allowance for interest on the past component. 37 The plaintiff has not yet thought about the kind of work he might do when he leaves school. For the reasons I have explained, he is unlikely to be suitable for a sedentary job involving complicated thought processes or a job which requires him to deal with people. The occupations of his father and his sister and his indifferent performance at school suggest that he is best fitted for manual work of some kind. His disabilities will make it more difficult for him to obtain and keep such work, and I think that he is entitled to a substantial award to protect him against the financial loss he will suffer because his symptoms will narrow the fields of work suitable for him and make it more difficult for him to compete with others to get that work. 38 Average weekly earnings for adult males stand at present at $653 net. I think that the plaintiff's disabilities and disadvantages in the labour market will result in his earning up to $150 per week net less than average weekly earnings. He is now fifteen years of age. If it were assumed that he would begin work at seventeen and work until sixty-five, a calculation taking into account the appropriate yield on the fund and discount for the vicissitudes, deferred for two years, would produce a lump sum of about $189,000. One cannot be exact about these matters, and I think justice will be done if I allow the plaintiff the sum of $150,000 for future economic loss. 39 I propose to make an allowance for future medical expenses and the like. The major component would be the cost of revising the scars, which on present values could range between $10,000 and $12,000. It is impossible to assess the probabilities that the plaintiff will decide to have those procedures carried out or when. There may be a substantial deferral, during which time the fund would earn interest. The amount I shall allow will take account of other possible expenses, like the purchase of stockings to cover the knee and the like, as well as the additional medical expenses which will flow from the plaintiff's increased susceptibility to injury. I allow $4,000. 40 The Griffiths v Kirkemeyer component has been agreed at $10,000. 41 The plaintiff's past out-of-pocket expenses have been agreed at $6,255. 42 These allowances total $370,255, and a deduction of ten percent should be made for the plaintiff's own negligence. The plaintiff's loss for which the defendant is responsible is therefore $333,230. The defendant has a defence for amounts paid in the sum of $3,150. The amount of the plaintiff's verdict will therefore be $330,080. 43 There will be a verdict and judgment for the plaintiff in that amount. The defendant must pay the plaintiff's costs in an amount to be agreed or assessed. ********** Last Modified: 09/26/2000 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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