Thompson v Cross [2014] NSWDC 8

District Court New South Wales

Medium Neutral Citation: Thompson v Cross [2014] NSWDC 8 Hearing dates: 12/03/2014 Decision date: 13 March 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the plaintiff for $92,909.10 Catchwords: Occupiers liability, negligence of grandmother Legislation Cited: Civil Liability Act 2002 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Hahn v Conley (1971) 126 CLR 276 Category: Principal judgment Parties: Kobie Thompson (Plaintiff) Joan Cross (Defendant) Representation: R Harrington (Plaintiff) S Torrington (Defendant) Lee Sames Egan (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2012/185298 Publication restriction: No

Judgment 1The plaintiff is now 30 years of age. The defendant is her paternal grandmother. When the plaintiff was 20 months old she was at her grandmother's home in Kanwal, just north of Wyong. She put her arms in the air. In doing so she pulled the cord running from a power point to a kettle. The kettle tipped over. There was very hot water in the kettle. The water poured over the plaintiff's right side. She suffered burns over her right nipple, her abdomen her leg and her foot. 2The plaintiff has sued her grandmother. She says her injuries were caused by her grandmother's negligence as occupier of the premises. The defendant has denied liability and has challenged the version of events said to have led up to the plaintiff's injury. 3There is no dispute that the kettle fell over and the hot water poured over the plaintiff. The defendant however says she was not at fault, rather it was the plaintiff's mother who was to blame. 4Despite the accident having occurred in 1985, the parties agreed that the action is governed by the Civil Liability Act 2002 (the CLA). This is because the action was started after the commencement of the Act. The plaintiff has claimed damages for non-economic loss, medical expenses, future economic loss and future care. 5The plaintiff, naturally, has no memory of the incident. She does however have a general recollection of being burnt. She said that as a child she was aware of looking different. She was embarrassed at sleepovers. She said that during puberty the burns were not of much significance however it has been as an adult that she has had the most problems. 6The plaintiff is a single mother with three children. She said that her inability to breastfeed her children, due to a deformed right nipple, caused her a great deal of upset. She felt that her capacity as a mother had been unfairly judged and she had been deprived of the ability to breastfeed her children. 7The plaintiff said that she was now embarrassed by her scarring and concerned that her appearance would hamper her prospects of finding a new partner. She said that she was paranoid of skin cancer. She felt itchy around the scars when they had been exposed to the sun. There was otherwise no pain. 8The plaintiff said that she would have suggested surgery as soon as possible (to her left breast) to improve the symmetry of her breasts. She was cross-examined about having the procedure. It was put to her that she might reconsider if there was to be scarring to the left breast caused by the operation. She said that further scarring would be taken into account but she was primarily concerned to have an improvement from her present position. I felt it likely that, having funds available, she would proceed with surgery. 9The plaintiff's parents separated in 1986. The plaintiff remained with her mother, Mrs Theresa Jones. She has had little to do with her father, Raymon Thompson, although in recent years there has been some contact. She speaks to him on the telephone from time to time. She saw him at his last birthday because it was thought that, due to illness, it might be his last birthday. 10Although there was little challenge to her evidence I was impressed with the plaintiff as an honest witness. This was exemplified by her acknowledgement that depression she has suffered was due to the relationship with the father of her children and was not related to her scarring. 11The plaintiff's mother gave evidence. She was born in 1959. She was married to Raymon Thompson. They separated in 1986. They had four children, Michael born in 1979, Robert born in 1981, Christie born in 1982 and Kobie, the plaintiff, born in 1984. 12At the time of the accident she said the family was living in the Coffs Harbour area. Her husband's parents were living at Kanwal. They had recently moved into the house. 15 October 1985 was the first time that she and her family visited the house. 13She said that they arrived around midday. Sometime later the defendant was preparing dinner for the family. There were two tables in the kitchen, one a large table for adults, and the second a children's table with four chairs. She marked the position of these tables on Exhibit B. 14She also marked the location of the power point to which the kettle was attached. The kettle was near the sink and close to the edge of the bench top. 15Mrs Jones said that her husband and his father, Bruce, were in the lounge watching television. The defendant was preparing dinner. The three older children were seated at the children's table. Mrs Jones "gathered up" the plaintiff and shepherded her towards the remaining chair. 16The plaintiff raised her arms and caught the cord attached to the kettle. The kettle tipped over pouring water onto the plaintiff. She was immediately taken to the bathroom and bathed in cold water. She was then taken to Wyong Hospital. The notes from the hospital indicate she arrived at 5:30pm (Exhibit A). 17Mrs Jones denied the following propositions that were put to her: (a)That she had been to the Kanwal house on a number of previous occasions. (b)That the kettle was normally in a different position and she had moved it to the position it was in when the accident occurred. (c)That her husband and her mother-in-law had travelled to Royal Prince Alfred Hospital that day to fetch Mr Cross. (d)That immediately before the accident her husband and the defendant had been assisting Mr Cross to go to bed. (e)That there was no children's table in the kitchen. 18Because of the nature of the cross examination, namely the putting of a completely different version, I paid particular attention to Mrs Jones's evidence in order to assist me in determining her credibility. I gave the same attention to the evidence of the defendant who provided the different version. 19Both witnesses were obviously hampered by the length of time that has passed since the accident occurred. The separation of Mrs Jones from her husband also suggested some inter-family tensions. 20The defendant gave evidence. She is now 83 years of age. She asserted the accuracy of her recollection but also accepted her memory was "hazy". At one point she said it was "ridiculous" that she was being called upon to remember events that occurred 28 years ago. 21The defendant was adamant that the plaintiff's family were then living in "Springwood" and visiting frequently, about once a week. In fact she was referring to Springfield, which is close to Gosford. She accepted that they would not have done so if they were living in the Coffs Harbour area at the time. I think it clear from the medical material in Exhibit A that the family was then living in Coffs Harbour. The defendant was mistaken. 22The defendant said that her son and his family came over at about 6am on the day of the incident. She and her son then left for Sydney, returning with her husband at about 6pm. She gave no explanation why the whole family would have arrived at 6am and, as already mentioned, the hospital notes indicate that the plaintiff arrived at the hospital at about 5:30pm. 23The defendant said there was no children's table in the kitchen. She said a children's table was only purchased some two years later and placed on the deck following renovations. This seems inconsistent with the family break-up in 1986. 24The defendant said the kettle was not normally in the position where it was when the accident occurred. She said she did not move it and suggested it must have been Mrs Jones. No reason was given as to why this might have occurred. 25The defendant said that she was coming into the room when she noticed the plaintiff grabbing the cord. She rushed about 4 metres and managed to stop the kettle when it was at about 45° angle. This seems a quite incredible feat. 26As I have said above, I paid particular attention to the demeanour of the witnesses. I could not conclude that the defendant was obviously dishonest. I am however satisfied that she is mistaken in her recollection, perhaps because of the time that has passed and perhaps, subconsciously, because of the history of the family that has elapsed since the incident. At the same time I formed a very favourable impression of Mrs Jones. I thought she was forthright in her evidence, doing her best to give an accurate recollection of the events which no doubt would have stuck in her mind, having seen her daughter badly injured. 27I prefer the evidence of Mrs Jones and accept her version in preference to that of the defendant. It follows that I accept that the kettle was not placed in its final position by Mrs Jones and that she had not been aware of its position previously. I also accept that this was the first visit of the family to the house and that the presence and placement of the tables and kettle was as described by Mrs Jones. 28It is necessary to say something about Exhibit 2, which contains two statements from Mr Raymon Thompson, the plaintiff's father. First of all I accept that due to a terminal illness Mr Thompson could not attend court. The first thing I note about the statement is that Mr Thompson is under the same misapprehension about where his family lived at the relevant time. The move to Springfield occurred later. Mr Thompson says that he and his mother went to pick up Mr Cross, but as with Mrs Cross, gives no explanation as to why the rest of the family would have, from about 6am, come to the house in Kanwal. 29Another inconsistency with his mother's evidence is that Mr Thompson states that both he and his mother were in the bedroom when he heard a scream coming from the kitchen. According to Mrs Cross she was coming into the kitchen and saw the kettle tipping over. 30Mr Thompson provides no explanation as to why the position of the kettle might have been moved by his former wife. He also does not have the other three children in the kitchen when the accident happened, unlike Mrs Jones who said they were seated at the small table. Although his sketch does not include the small table, Mr Thompson does not say anything about it in his statements, in particular he does not corroborate his mother's evidence about when it was purchased. 31There is also a tenor in the statements of Mr Thompson protecting his mother from criticism and attributing blame to his ex-wife. 32I do accept that in very broad terms Mr Thompson's statements support his mother's version more than that of his ex-wife. However, I am mindful that he has not been cross-examined and that there are some clear mistakes in the statements, the most obvious example being that the family was then living in Springfield. 33The contents of Mr Thompson's statements do not cause me to doubt my acceptance of the evidence given by Mrs Jones.