State of New South Wales v Griffin [2004] NSWCA 17

New South Wales Court of Appeal

CITATION : State of New South Wales v Griffin [2004] NSWCA 17 HEARING DATE(S) : 13/02/04 JUDGMENT DATE : 13 February 2004

JUDGMENT OF : Giles JA at 42; Ipp JA at 1; McColl JA at 43 DECISION : (1) Appeal upheld to the extent that award of $171,372 in respect of future care be set aside and verdict and judgment sum of $962,234.11 should be reduced accordingly (2) Respondent to pay half the appellant's costs of the appeal.

CATCHWORDS : NEGLIGENCE - Whether behaviour of 13 year old boy contributorily negligent - Schoolyard fight - DAMAGES - Future loss of earning capacity - Brain injury - Attention deficit - Ability to obtain employment - Future domestic care - Ability to carry out domestic tasks. ND CASES CITED : The Commonwealth v Introvigne (1982) 150 CLR 258 PARTIES : State of New South Wales (Appellant) David Michael Griffin (Respondent) FILE NUMBER(S) : CA 40274/03 COUNSEL : Dr A Morrison SC/C L Lonergan (Appellant) B M Toomey QC/A Black (Respondent) SOLICITORS : I V Knight, Crown Solicitor (Appellant) Walsh & Blair Lawyers (Respondent)

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 20221/00 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40274/03 SC 20221/00

GILES JA IPP JA McCOLL JA

Friday 13 February 2004 STATE OF NEW SOUTH WALES v DAVID MICHAEL GRIFFIN Judgment 1 IPP JA: In 1995 the respondent was in year 8 at Narrandera High School, a school within the State school system. On 1 March 1995, then thirteen years of age, the respondent was involved in a fight with another boy. The respondent was hit on the head and fell to the ground. He was found unconscious and taken by ambulance to hospital. 2 The respondent received a blow to his head when he was punched and another when he fell to the ground. He suffered a brain injury in consequence. In this regard the trial judge said: "As a result of a moderately severe head injury, the Plaintiff has suffered severe dislocation to his personal life, his educational development as well as the amenity of his life. He will take a long time to get back to anywhere near what was, his albeit limited potential prior to the accident. He has lost a large part of his social life and enjoyment, normally experienced by people from thirteen years to twenty years. It will take some time before he is back into the community, and indeed, it will take some time before his capacity to test the job market will be developed. It is likely that his employment, if gained will be more fragile and that he will have periods of unemployment." 3 The respondent brought proceedings against the appellant, alleging that the appellant had been negligent in failing to provide adequate supervision at the school. He claimed damages for the injuries he sustained. 4 During the course of the trial the appellant admitted that it had breached its duty of care in regard to the respondent. This left the issues of damages, causation and contributory negligence to be determined by the trial judge, Dowd J. His Honour found that the appellant had not established contributory negligence. He found that the appellant's negligence had caused the respondent to suffer damages and he assessed those damages in the sum of $962,234.11. He returned a verdict and judgment for the respondent in this sum. 5 The appellant appeals against four aspects of his Honour's decision. The issues raised by the appeal are: