District Court New South Wales Medium Neutral Citation: O'Toole v Temelkovska [2012] NSWDC 88 Hearing dates: 19/06/2012 Decision date: 20 June 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff against the defendant in the assessed amount of $40,887.28; 2.Pursuant to s 77 of the Civil Procedure Act 2005, the judgment amount of $40,887.28 less the amount of $39.10 to be paid to the Health Insurance Commission, is to be paid to the NSW Trustee and Guardian, to be invested on behalf of the plaintiff until she reaches the age of 18 years; 3.The defendant is to pay the plaintiff's costs of the proceedings, such costs to be assessed on the ordinary basis, unless otherwise ordered; 4.The exhibits may be returned; 5.Liberty to the parties to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - assessment of damages under the Civil Liability Act 2002 - teenage girl suffered full thickness burn to scalp and resultant scarring caused by hairdresser applying chemicals and heat to her hair to achieve streaks Legislation Cited: Civil Liability Act 2002, s 15, s 16 Civil Procedure Act 2005, s 77 Category: Principal judgment Parties: Erin Rose O'Toole by her Tutor Shelley O'Toole (Plaintiff) Olivia Temelkovska t/as Pink Sugar Hair & Beauty (Defendant) Representation: Mr R Hanrahan (Plaintiff) No appearance for the defendant Gerard Malouf & Partners (Plaintiff) No appearance for the defendant File Number(s): 2011/413465 Publication restriction: None Judgment Nature of case 1The plaintiff Erin O'Toole, by her mother and tutor, Mrs Shelley O'Toole, brings these proceedings against the defendant, Olivia Temelkovska, the proprietor of a hairdressing salon trading as Pink Sugar & Hair Beauty, for damages for personal injury due to the negligence of the defendant. The proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"]. 2The plaintiff suffered a full thickness burn to her scalp at the crown of the head whilst the defendant was in the course of seeking to create streaks in the plaintiff's hair by applying chemicals, aluminium foils and a heat lamp. 3Default judgment was entered in favour of the plaintiff against the defendant on 3 May 2012. This hearing is therefore concerned with the assessment of the plaintiff's entitlement to damages for personal injury. Although the defendant has not appeared in the proceedings, I am satisfied that the defendant has been notified of the hearing: Exhibit "A". Facts 4On 16 October 2009, when the plaintiff was aged 12 years, she attended the defendant's hairdressing salon for the purpose of having coloured streaks applied to her hair. She had chemicals and aluminium foils applied to her wet hair and she was then seated under a heat lamp. 5Within a minute or so of sitting under the heat lamp the plaintiff felt uncomfortable and experienced an unusual sensation in her scalp. She then stepped away from the heat lamp. She felt too shy to complain, and due to her relative inexperience in such matters, she thought what she was experiencing was part of the process. As a response to the plaintiff's reaction, a salon attendant simply adjusted the position of the heat lamp and re-positioned the plaintiff under it. The plaintiff then remained there for approximately 10 seconds before again removing herself from the heat source, which she described as being very hot. She said she felt her scalp was melting. 6The salon staff apparently did not appreciate the extent of the plaintiff's injury at the time and proceeded to rinse her hair without recognising the plaintiff's injury. After the injury became apparent staff then attempted to treat the plaintiff's burn by applying milk and yogurt, with no effect. They then proceeded to wash and blow dry her hair. 7When the plaintiff's mother arrived to pick her up attention was drawn to the problem. 8Mrs O'Toole took her daughter to a local general practitioner whose notes reveal that he advised the plaintiff to apply ice to the injured area and to keep the area cool for the rest of the day. It appears that at that time, a full thickness burn to the scalp at the crown of the plaintiff's head was not recognised. There was no advice given for the plaintiff to attend a hospital for treatment of her burn. 9Overnight, the plaintiff's wound oozed a significant amount of clear fluid before Mrs O'Toole took the plaintiff to Westmead Children's Hospital Burns Unit, where she was treated extensively. 10On 9 May 2011, at the request of her solicitor, the plaintiff was assessed by Mr Greg Anning, a consultant psychologist. After reviewing her history and assessing her clinically, he noted the plaintiff was very sensitive when talking about her scar, and experienced upset when asked about it. He formed the opinion that the plaintiff underwent an extremely disturbing experience, but also underwent adjustment, and therefore has no psychological diagnosis. This does not of course derogate from the plaintiff's distress at her experience and recrudescences of such distress on occasions. 11On 5 November 2011, at the request of her solicitor, the plaintiff was assessed by Dr Edward Lobel, a consultant dermatologist. Dr Lobel confirmed the plaintiff's complaint of abnormal sensation when the scar and its immediate surrounds are touched. No further treatment has been suggested for the plaintiff's scarred scalp. It is within her hairline. However, Dr Lobel noted the plaintiff was conscious of her scar, and there was colour contrast between the scar and the surrounding skin when it was available to be viewed and not hidden by the plaintiff's hair arrangement. Assessment of damages 12The plaintiff claims damages for non-economic loss pursuant to s 16 of the CL Act. The plaintiff also claims the value of past attendant care services provided to her by her mother when such assistance was required while her injuries healed. She also claims a modest amount for past out-of-pocket expenses. Non-economic loss 13Almost 3 years have passed since the plaintiff received her injury. She is now aged 15 years. At the time of her injury she was in year 7 at school. She is now in year 10. 14The plaintiff described and recalled the experience of her scalp burn as being traumatic and painful for her. Her mother described the plaintiff as appearing to be in a state of shock at the time. Unsurprisingly, the plaintiff was crying at the time she realised the implications of her injury. 15The plaintiff endured many hospital visits for treatment of her scalp defect, including an operation under general anaesthetic. These matters are recorded in ample detail in the hospital clinical notes. It was uncomfortable for the plaintiff to undergo treatment, which involved regular dressing changes and repeated scalp shaving for wound hygiene, and involved removal of escharred tissue. These treatments were without local anaesthetic and caused her distress. 16The plaintiff was initially treated conservatively in the hope that the scalp wound would heal by itself. However, this approach proved unsuccessful, and on 25 November 2009 the plaintiff was admitted to hospital for excision of the margins of the defect in her scalp and suturing. A photograph shows what appears to be some 11 sutures. This has left a scar described as being located on the crown of her head, being some 5cms in length and placed laterally across her head. 17The medical evidence comprises Exhibit "B". The Westmead Children's Hospital notes attach a series of some 18 photographs taken at various stages both pre-operatively and post-operatively. 18The plaintiff is clearly embarrassed by her scar and is self-conscious in relation to it, although she courageously sought to make light of it when giving her evidence. For her, the scar to her scalp is not only embarrassing, but it is also a source of daily inconvenience and discomfort, as well as serving as a reminder of the most unpleasant experience she has had to endure. The residual scar remains permanently alopecic. She avoids wearing her hair short as a result. 19The plaintiff's initial unpleasant experiences extended to having to wear beanies and headscarves in an endeavour to disguise the shaved part of her head until she was able to re-grow her hair when treatment concluded. She had to endure teasing by those of her peers who were ignorant of the cause of her scalp defect, and were apparently unaware of the adverse effects of such insensitive teasing upon her. That teasing extended to internet distribution of negative comments about her scalp on facebook. This caused her embarrassment and humiliation. This then caused her to lose confidence and to feel uncomfortable about herself. 20Those feelings continued with some intensity for about 5 months, at which time her hair had started to grow a little longer so she could have it arranged to cover her scalp scar by the careful arrangement of her hair, including by the use of pins. 21The plaintiff continues to experience sensitivity in the area of her scar and cannot bear for it to be touched, especially by others, including when attending a hairdresser. Her mother still takes the time to warn hairdressers of the plaintiff's predicament at the time she makes an appointment for the plaintiff to have her hair cut. She nevertheless feels anxious when going to see a hairdresser. 22The plaintiff has to take special care when grooming her hair and avoids contact with her hairbrush in the area of the scar that remains sensitive. As a result, the daily grooming of her hair takes longer as she has to be gentle with her hair so as not to pull it. This would seem to involve some difficulty as her hair is thick, long and apparently naturally curly. Understandably, discomfort in the region of the scar would readily arise when combing or brushing such hair. 23With the passage of time the plaintiff feels less uncomfortable talking about her experience and the scarred area on her scalp. On an unpredictable basis, she has some days where she feels aggravated by the experience she has been through. This seems to be triggered when she attends to the grooming of her hair. In 2011, when interviewed by Mr Anning, the psychologist, she described her distress in this regard as being 7 on a scale of 1 to 10. These days, she identifies her level of distress as being variable, but usually at 4 on the same scale of 1 to 10. 24She still takes care and effort not to expose the scarred area to the sun, including when going to the beach. It therefore inconveniences her on an everyday basis as it takes her longer to get ready to go outdoors due to the additional time taken to arrange her hair, including by means of pins, headbands and other means of head protection. 25On the one hand the plaintiff is fortunate that the injury was localised and that the acute phase of her psychological reaction to her injury has receded. On the other hand, she is still burdened by discomfort, apprehension, inconvenience and at times distress when reminded of her untoward experience, especially when grooming herself. 26Cosmetic components of disability and reactive psychological sequelae are often difficult to assess in terms of damages. This case exemplifies that difficulty because the plaintiff clearly understated her problems and held back more expansive answers when questioned on the nature and extent of her past injury and disabilities. Notwithstanding her reticence to dilate upon such matters, it was plain from her evidence, that on a daily basis, she is still adversely affected by the aftermath of her unfortunate experience at the defendant's hairdressing salon. 27On her behalf, taking the above factors into account, it was submitted that the appropriate range of damages for non-economic loss would be between 15 per cent and 25 per cent of a most extreme case, with the upper range being appropriate in view of the plaintiff's youth. There is considerable force to that submission. 28In my view, on balance, I consider that the plaintiff's damages should be assessed at 25 per cent of a most extreme case. The plaintiff's physical sensations due to her scarring are unlikely to abate. These will most probably be an ongoing source of psychological discomfort to her, as has occurred to date. She is only 15 years old and has many years ahead of her in which she will encounter these difficulties. 29According to the currently applicable table of s 16 CL Act damages, 25 per cent of a most extreme case equates to an amount of $34,000. I therefore assess the plaintiff's entitlement to damages for non-economic loss in the amount of $34,000. Past attendant care services 30The plaintiff has in the post-injury period received the benefit of the assistance of her mother due to the effects of her injury. She therefore claims damages for the value of such services pursuant to s 15(4) of the CL Act. 31These services comprised Mrs O'Toole attending to the plaintiff's needs over an extended period of some 36 weeks following the injury. The services involved daily assistance with careful washing and showering necessitated by the need to keep the scalp wound dry and the application of regular changes of dressings. Mrs O'Toole also assisted the plaintiff with arranging her hair to try and disguise the cosmetic defect during the 5 months it took for the hair to re-grow in the area that required regular shaving whilst the plaintiff underwent treatment. She also assisted the plaintiff with counselling to help her cope with her discomfort and distress due to the effects of her injury. The plaintiff experienced significant anxiety and distress. This also extended to the effects of teasing the plaintiff had to endure from some of her insensitive peers at school, until she became more robust in her ability to deal with such matters herself. 32Mrs O'Toole described how she undertook such tasks to the extent of a minimum of 1 hour per day, sometimes 1.5 hours per day, from the time of the plaintiff's injury until the middle of 2010. I accept her evidence in that regard. I find that these attendant care services would not have been required by the plaintiff but for the occurrence of the injury in question occasioned at the defendant's hairdressing salon. 33I am satisfied that these services were provided to the extent of at least an average of 1 hour per day for 7 hours per week during the period between discharge from hospital on 17 October 2009, and mid 2010, which I took to refer to 30 June 2010. This is a period of a little over 36 weeks, thus satisfying the threshold requirements of s 15(3) of the CL Act. 34The quantification of 7 hours per week at the rate prescribed by s 15(4) of the CL Act is set out in the schedule that comprises the Appendix to these reasons. I therefore assess the plaintiff's entitlement to damages for her injury related need for past attendant care services in the sum of $6188.18. Past out-of-pocket expenses 35The plaintiff has incurred out-of-pocket expenses comprising $39.10 for her initial non-hospital medical expenses. This amount has been paid by the Health Insurance Commission and is refundable from this award of damages. The plaintiff also incurred a total of $640 in travelling expenses as a result of her need to attend many appointments for treatment of her scalp wound at the Westmead Children's Hospital Burns Unit. She has also incurred the sum of $20 for painkilling medication. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the aggregate sum of $699.10. Disposition 36The plaintiff's damages have been assessed in the total amount of $40,887.28. She is entitled to a judgment in that sum less the amount refundable to the Health Insurance Commission. The balance must be held by the NSW Trustee and Guardian until she reaches the age of 18 years. Costs 37Since judgment is to be entered in her favour, the plaintiff is also entitled to a consequential order for costs. Orders 38I make the following orders: (1) Verdict and judgment for the plaintiff against the defendant in the assessed amount of $40,887.28; (2) Pursuant to s 77 of the Civil Procedure Act 2005, the judgment amount of $40,887.28 less the amount of $39.10 to be paid to the Health Insurance Commission, is to be paid to the NSW Trustee and Guardian, to be invested on behalf of the plaintiff until she reaches the age of 18 years; (3) The defendant is to pay the plaintiff's costs of the proceedings, such costs to be assessed on the ordinary basis, unless otherwise ordered; (4) The exhibits may be returned; (5) Liberty to the parties to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15(4) [7 hours per week] Weekly Hourly Period Weeks s.15(4) s.15(4) Amount for 7 hours per week Rate Rate 1. 17.10.2009 to 20.11.2009 04.85 $959.90 $23.99 $814.46 2. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2179.48 3. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2225.36 4. 22.05.2010 to 30.06.2010 05.57 $986.90 $24.67 $961.88 Total 36.12 $6188.18 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2012