Katie Elizabeth Johnson By Her Next Friend and Father Gordon Riggs v Joan Johnson [1988] ACTSC 22 (28 April 1988)

SUPREME COURT OF THE ACT

KATIE ELIZABETH JOHNSON by her next friend and father GORDON RIGGS v. JOAN
JOHNSON
S.C. No. 570 of 1984
Assessment of Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.

CATCHWORDS

Assessment of Damages - No question of principle.

HEARING

CANBERRA
28:4:1988

ORDER

There be judgment for the plaintiff for the sum of $15,646.20.

The defendant have credit for the amount of $1,420.50 on account of the judgment.

The balance, $14,225.70, be paid into Court.

Out of that balance the sum of $125.70 be paid to the plaintiff's solicitors on their undertaking to pay it to the person or persons entitled to it for services rendered to the plaintiff or as reimbursement to any person who has paid all or any part of that sum to anyone so entitled.

The remaining $14,100 be paid out to the Public Trustee to be dealt with by him for the benefit of the plaintiff in accordance with the provision of the Public Trustee Ordinance 1985.

DECISION

This is an assessment of damages. The plaintiff, who was born on 9 January 1981, was injured in an accident on 5 May 1982 when a passenger in a car then being driven by her mother. The trial proceeded principally on medical reports, no part of which was challenged. However, on one minor aspect, the length of the mother's stay in hospital after the accident, there is some confusion.

2. The plaintiff was strapped in a baby seat and not thrown out of it. There was brief loss of consciousness. On arrival at Royal Canberra Hospital she came under the care of Dr Newcombe, a neurosurgeon. She was barely rousable and extremely irritable but was moving all her limbs. There were contusions and superficial abrasions of the head and face, left knee and right leg. Several small lacerations had probably been from broken glass. There was a severe contusion of the left ear. She made a progressively good recovery with no neurological sequelae. X-rays of skull and cervical spine showed no abnormality.

3. About a year later the plaintiff was reviewed by Dr Newcombe. The child's mother told Dr Newcombe then that her behaviour was normal and that she had had no symptoms but that there had been some psychological trauma in the form of withdrawal from maternal care at the time of the accident and for a considerable time thereafter, even following discharge from hospital. At first she would have little to do with her mother but at the date of review was perhaps overly attached.

4. Dr Newcombe thought it unlikely that there would be any persistent disturbance from that in the future. He noted scarring in the region of the left cheek and left nostril which constituted a series of small scars and a cosmetic problem which would be permanent. He thought her memory and concentration normal and her speech normal for her age. He noted no abnormal signs on examination of the central nervous system. He concluded that apart from scarring no permanent sequelae were expected but recommended review at the end of 18 months after the accident.

5. Dr Newcombe saw the plaintiff again on 7 December 1983. Her mother then indicated that her behaviour was normal for her age. Her sleep, however, was said to be disturbed but probably gradually improving. He found no abnormal neurological signs on examination. He considered that from a neurological point of view her condition was stable and that further treatment was not indicated.

6. He reviewed her finally on 20 February 1985. She was then said to be attending school in her first year and doing well but her sleep was disturbed on some nights by nightmares. He concluded his report by saying:-
"There are no neurological problems. She is

aware of her facial scars and is concerned by
them. The extent of the psychological effect
is difficult to estimate without drawing her
attention to the scars in detail. However,
it seems probable that there will be
significant permanent psychological effect
because of this permanent cosmetic problem.
Her general condition would appear stable."

7. Dr Peter Brown, a plastic surgeon, was asked to examine the plaintiff and report on the scarring. He was told that the lacerations, which were mostly superficial abrasions, had not required suturing but that dressings were required for a period of some two weeks until the healing was complete. He found that she had residual scarring in the skin of the left upper forehead, the left lower eyelid and the left upper lip. He described the scarring as follows:-

"1. In the skin of the left upper forehead
just below the hairline there is a 9 mm
long white linear scar measuring about 2
mm in breadth.
2. In the skin of the medial third of the
left lower eyelid there is a
transversely orientated white linear
scar measuring 1 cm in length.
3. In the skin of the left upper lip in its
lateral third there is an obliquely
orientated linear scar measuring 1 cm in
length. All scars are white in colour."

8. Dr Brown considered the scars to be fully mature and unlikely to change substantially with further passage of time. He thought them permanent and that they would cause her some cosmetic disability. He did not think that further surgical revision of the scars would improve their overall appearance greatly and recommended they should be accepted in their present form.

9. I have inspected the scarring on the child's face. That on the left upper lip seems to me not to have been accurately described by Dr Brown. Although the scarring is not very long it has a webb like appearance, white in colour, generally flush with the surrounding skin tissue.

10. The circumstances of the plaintiff's conception are set out in the reports of Dr Freeston, formerly a child psychiatrist at the Child & Adolescent Unit of the Mental Health Branch of the A.C.T. Health Authority and of Dr Dyball, a psychiatrist who examined the child on behalf of the mother's insurer. It is unnecessary to recount the circumstances but I accept what is set out in those reports as being accurate, confirmed as they were by the plaintiff's mother when she gave evidence. They form some part of the plaintiff's psychological background.

11. The plaintiff was being breast fed up to the time of the accident. Her hospitalisation, which lasted about a week after the accident, appears to have been very traumatic. She was too young to understand what was happening and cried inconsolably until allowed to be with her sister. After a week the children went to stay with the plaintiff's maternal grandmother to whom the plaintiff continued to cling very much. This Dr Freeston thought was to be expected in the circumstances.

12. The plaintiff's mother, who was seriously injured in the accident, was also, I am satisfied, hospitalised for about a week. Her incapacity thereafter led to the children's being placed in the care of their maternal grandmother for about three weeks. At the end of that period the plaintiff's mother was disconcerted and hurt to find that the child remained attached to her grandmother, rejecting her. She was so upset that she took the children back to Canberra with her before she was physically fit herself. Thereafter she worked hard and successfully at re-establishing her relationship with the plaintiff, allowing her, for example, to come into her own bed every night without asking her to return. She did not mind that situation, thinking that the plaintiff would naturally grow out of it as she herself appears to have done at about the age of six or seven.

13. I am satisfied, on the medical evidence, that at the moment the plaintiff shows a degree of excessive dependency on her mother. If this continues, and there is a possibility that it will, some professional counselling will in due course be necessary. It is, however, not possible to say that the excessive dependency is caused by the accident although I am satisfied that it has contributed to it to some degree. Some modest amount of compensation in respect of the plaintiff's psychological condition must therefore be allowed but in making such an allowance I am acutely aware of other factors which I am satisfied have contributed towards that condition. I emphasise that it is not presently of particular moment.

14. The question of the scarring is to be approached, I think, at two different levels. At school she has been subjected to some teasing by her fellow pupils. This is understandable since the scarring, although not grossly disfiguring, would tend to mark her out from her playmates. She has felt some embarrassment about the teasing which this has brought about and some embarrassment generally and I make allowance for that. I think that embarrassment and teasing is likely to lessen to some degree in the years until puberty. More importantly, I think, the scarring will constitute a serious cosmetic disability in the eyes of a pretty teenager and in the years beyond her teens.

15. Doing the best one can in the circumstances, I think the proper amount to award for general damages is $12,000. Out of pocket expenses are agreed at $1,546.20 but of these $1,420.50 has been paid by or on behalf of the defendant. I allow $2,100 interest at the rate of 7% on the sum of $5,000 at which I estimate her general damages to date. I allow no interest on the sum of $125.70, the balance of out of pocket expenses, as I do not know whether they have been paid or, if paid, when or by whom.

16. There will be judgment for the plaintiff for $15,646.20. The defendant is to have credit for $1,420.50 on account of the judgment sum. I will order that the balance of it, $14,225.70 be paid into Court. Of that sum $125.70 is to be paid to the plaintiff's solicitors on their undertaking that they will pay it to the person or persons entitled to it for services rendered the plaintiff or as reimbursement to any person who has paid all or any part of that sum to anyone so entitled. I will order that the remainder of that balance, $14,100, be paid out to the Public Trustee to be dealt with by him for the benefit of the plaintiff in accordance with the provisions of the Public Trustee Ordinance 1985.