Davis v The Council of the City of Wagga Wagga [2002] NSWSC 911

New South Wales Supreme Court

CITATION : Davis v The Council of the City of Wagga Wagga [2002] NSWSC 911 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20854/01 HEARING DATE(S) : 5 & 6 June 2002 JUDGMENT DATE : 3 October 2002

PARTIES : John Bradley Davis by his next friend Norman John Davis (Plaintiff) The Council of the City of Wagga Wagga (Defendant) JUDGMENT OF : Dunford J

COUNSEL : BMJ Toomey QC / AJ Black (Plaintiff) PW Taylor SC / IDA Roberts (Defendant) SOLICITORS : Walsh & Blair (Plaintiff) Phillips Fox (Defendant) CATCHWORDS : NEGLIGENCE - 15 year old boy falls off swing erected & maintained by the defendant - issues of fact - no matter of principle. DECISION : Judgment for the defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DUNFORD J

Thursday, 3 OCTOBER 2002

20854/01 John Bradley Davis by his next friend Norman John Davis v The Council of the City of Wagga Wagga

JUDGMENT 1 His Honour: In these proceedings the plaintiff claims damages for personal injuries suffered by him on 19 April 1999 when he fell whilst alighting from a swing erected and maintained by the defendant in Emblen Park, Wagga Wagga, as a result of which he suffered a compound fracture of the left radius and ulna with complete transection of the median nerve requiring a median nerve graft, and consequent disabilities. 2 During the hearing, damages were agreed between the parties, subject to any deduction on account of the plaintiff's contributory negligence if such were established, but the liability of the defendant remained in issue. 3 The plaintiff was born on 27 December 1983 and accordingly was aged 15 at the time he sustained his injuries. In his evidence he said that on the day in question there were no classes at school because of a teachers' strike so he went to the park with a friend of his, Richard King, and whilst waiting for his girlfriend who lived across the road, he and his friend used the swings in the park. There were two swings side by side. At each end there were two vertical poles joined together by a horizontal bar or stay, and a further cross-bar ran from the stay at one end to that at the other, the swings being suspended from the cross-bar (see Exhibit B). 4 He said (T 5) that as he was swinging he noticed that the "top pole", by which I understood him to mean the cross-bar from which the swings were suspended, was shaking. He thought it was going to fall, so he jumped off as the swing was going up and as he did so the S-hook which joined the seat structure to the chain suspended from the cross-bar got caught in the left hand side of his shorts on the outside of his thigh, and he fell to the ground with his left forearm across the front of his body. He was not aware that he had hurt himself badly until he saw blood on his arm with the bones of his forearm protruding through the skin. An ambulance was called and he was taken to Wagga Wagga Base Hospital where he underwent an operation, a couple of days later he was taken to Sydney Hospital for further surgery, and he returned to Wagga Wagga three days after that. He said that while he was at Wagga Wagga and Sydney Hospitals he did not discuss with his father what had happened or how he had been injured (T 6). 5 In cross-examination he said that he started the swing from a standing still position and worked it up, but not very high (T 30), that when he saw the pole shaking he told his friend that it was shaking, the friend jumped off, but he could not actually stop himself, so as the swing was coming down he went to jump, but then it was going up (T 31). He said that when he decided to get off the swing he could not remember what he did with his hands (T 35), that he landed in front of the swing, his pants were not stuck on the swing, and he did not turn around and look at the swing after he fell (T 39). He denied (T 40) that he put his left arm out to try and break his fall and said his arm was not outstretched. He continued (T 40): Q. "You kept holding with one hand? A. Yes, one hand and let go with one hand but I didn't have the other hand on. You know when you jump off and hold one thing and you hold the other one off. That's how I jumped off with one hand. That's when I've got caught. I jumped off with one hand and that's how come I got caught, must have got caught. I know the hook caught me (sic) shorts when I jumped off with one hand. Q. How do you know the hook caught your shorts? A. Because I felt it coming up here" (indicating his left thigh) . 6 He said he was not holding on when he fell. When he went to jump off he let his left hand go and held on with his right hand and as he jumped out of the swing he let go with the right hand at the same time. He said he fell to the ground with his left hand underneath him, landed in front of the swings, was not still stuck to the swing, and could not remember whether his shorts were torn (T 41). 7 The plaintiff's first difficulty is that he did not at the time tell anyone that his shorts had become caught in the S-hook or in any part of the swing apparatus, nor that he jumped off because he saw the cross-bar shaking or vibrating. He told the ambulance officers who attended him (Ex. A, p 4) that he fell off a swing and put his hand out to break the fall. He gave the Wagga Wagga Base Hospital (Ex. A, p 6) a history that he fell off the swing onto his left forearm from a height of about two metres and that the fall was witnessed by his friend, and told the Nursing Assessment Emergency Department (Ex. A, p 7) that he fell off the swing onto his outstretched left arm. On arrival at Sydney Hospital on 21 April he gave a history (Ex. A, p 47) that he fell off a swing two days ago whilst waiting for his girlfriend (see also p 46). So it appears that until the time he left Sydney Hospital on 24 April he apparently told no one that the fall was precipitated by his shorts being caught on a hook or on anything else, although he did supply to Sydney Hospital the detail that it happened whilst he was waiting for his girlfriend. 8 The plaintiff's father gave evidence that a couple of days after he and the plaintiff returned to Wagga Wagga, that is about 26 April, he went by himself (without the plaintiff) to the park to have a look at the swings, and he noticed that on one of the swings the hooks that attached the seat were open at one end, indicating about an inch or three centimetres, and he drew a diagram (Ex. 3) showing how the hooks were said to be open at the end of the S-loop. Then a couple of months later, after he had given instructions to his solicitor, he went and took a photo of the swing (Ex. G). The photo was taken between 27 May and 30 July 1999. The photo does not show anything wrong with the S-hooks but Mr Davis said that the hooks then in place appeared to be new. 9 It is not clear from the evidence how he knew which swing to look at. He said a lady pointed something out (T 64), but there was no evidence of who the lady was, what she told him, or how she knew anything about the plaintiff's accident, and she was not called as a witness. 10 It was only after this that the plaintiff told anyone that his shorts had become caught in any part of the swing. On 27 March 2000, he told Dr JS Middleton (Ex. A, p 96) that whilst on the swing he noted the crossbar shaking abnormally and thought it might collapse so he jumped off but hooks holding the seat of the swing to the vertical supports, caught in his shorts, his next memory was of being half lying on the ground, but with his shorts still attached to the swing, half suspending him, and being dragged backwards and forwards with the movement of the swing, and he recalled detaching himself, this last assertion being a direct contradiction to what he said in cross-examination where he denied that he had been still stuck on the swing (T 41) and said that he was lying on the ground. 11 On 21 February 2000 he also told Dr Richard Honner (Ex. A, p 110) that after he saw the cross-bar shaking, he tried to jump off but the hook of the swing caught his shorts and dragged him along the ground. On 18 July 2001, he told Dr Bliss, who examined him on behalf of the defendant, that when he jumped, his shorts caught on a hook on the way down which threw him off balance and he landed heavily on his left arm (Ex. 1), whilst in their letter of instructions to Denton Corker Marshall Pty Limited (architects) seeking an expert opinion, the plaintiff's solicitors said that "when the plaintiff was attempting to alight from the swing the bottom of his football shorts caught on the widened S-bend causing him to fall heavily forwards onto his outstretched left hand." 12 So, in summary, the plaintiff's description of the accident initially included no reference to his shorts being caught or the unsteady cross-bar. After his father allegedly inspected the swing (query the correct swing) and purportedly found the S-bend partially open, the plaintiff told his solicitors and some doctors that when his shorts got caught he fell onto his outstretched hand, although in evidence he denied that his hand was outstretched to break the fall, and he also told Dr Middleton and Dr Honner that as a result of his shorts being caught, he was dragged backwards and forwards by the movement of the swing, which he also denied in his evidence, and he told Dr Middleton that he recalled detaching himself. 13 These descriptions contain a number of inconsistencies. There was evidence in the case that the plaintiff was of low intelligence with learning difficulties and his manner of giving evidence demonstrated very limited language and communication skills, but whilst one can make allowance for such disabilities, these inconsistencies do not provide a convincing history of what actually occurred or what caused him to fall. 14 Moreover, apart from his father, there is a total lack of corroboration of any kind of the plaintiff's version. In particular his friend, Richard King, was not called and no explanation was proffered for his absence. The shorts were not produced and the plaintiff said he did not know whether they were torn or not. 15 Mr Pilton, an architect, expert in the design and building of playgrounds gave evidence of how S-hooks when used to connect swings to suspending chains can open and Mr Johnson the ganger in charge of the relevant maintaince for the defendant also described how they can open. The photographs taken by Mr Connolly (Exs. K and L) show a series of swings with S-hooks but, apart from those depicted in photos 4A, 4B and 4C and in Ex. L, they are not open and they do not protrude sideways. In any event, none of them are photographs of swings in Emblen Park. Exhibit N is a totally different type of attachment and not relevant to the present issue. 16 In any event, the plaintiff's accident having happened on 19 April, the Council maintenance team by coincidence did a routine inspection of Emblen Park on 27 April 1999 and (as per Ex. 5) Mr Johnson and his assistant checked the swing frame and the seats. They found both of them to be in good working order and, although he had no specific recollection of this inspection, by reference to his usual practice he described how the structure of the posts and cross-bars supporting the swings would be tested and examined. He also described how the swing seats and attachments would be examined. In particular, he described how, if there was an opening in the S-hook, the testing would cause the A-frame attached to the seat to come away from the chain, but by reference to the records, he could say this did not happen. He did note on that occasion that the S-hooks would need to be replaced later on because they were worn, but he said that this meant, not that there was any kind of opening at the extremities of the S-hooks, but that the metal had become thinner where the top and bottom circumferences of the 'S' had rubbed against the metal of the suspending chain and the A-frame of the seat, a totally different picture to the extremities of the S-hooks opening apart. He said that if the ends of an S-hook had opened, he would close it with a crimping device and record the fact (T 87-88). Entries to this effect do appear on occasions in Ex. 5, but not in respect of this inspection at Emblen Park. 17 Having regard to the fact that Mr Johnson appeared to be an honest and straightforward witness, but particularly having regard to the fact that on that date he noted features of the S-hooks (i.e. that they were worn) but did not record anything about any opening in the S-hooks, I am satisfied that there was no excessive opening in the extremities of the S-hooks or any of them as at that date, and therefore no such opening at the time of the plaintiff's accident. 18 Reliance was placed by the plaintiff on the inspection report of 8 June 1999 (Ex. M) which shows defects in the swing frame double (although not in the seat), and it was suggested that this tended to corroborate the plaintiff's evidence that the cross-bar was at fault when he had his accident in April and indicated that it had further deteriorated by the time of the June inspection. I reject this submission. Not only does the report of 27 April show the swing frame double to be in order, but if it was as bad as the plaintiff described on 19 April and overlooked on 27 April, one would have expected it to collapse prior to 8 June, when it was apparently still in working order, although the need for future repair was observed and noted. 19 The plaintiff carries the onus of proving on the balance of probabilities that the accident occurred substantially as he claims in that his shorts got caught on a protruding or partially open hook or similar as he jumped off the swing. Having regard to the inconsistent histories given by the plaintiff, the total lack of corroboration, the evidence of Mr Johnson and the Council records to the effect that there was nothing wrong with the cross-bars or the hooks when they were inspected on 27 April, the plaintiff has failed to satisfy me of these matters, and accordingly he must fail. 20 I therefore direct the entry of judgment for the defendant and order the plaintiff to pay the defendant's costs of the proceedings. **********