Moira Kathleen Watts v Australian Capital Territory [1997] ACTSC 38 (30 May 1997)

SUPREME COURT OF THE ACT

MOIRA KATHLEEN WATTS v. AUSTRALIAN CAPITAL TERRITORY

No. SC612 of 1994

Number of pages - 11

Negligence - Personal injuries

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COOPER J

CATCHWORDS

Negligence - Pedestrian injured in pedestrian mall precinct - uncovered water drain in mall in area of previous designated road - no formal road closure - whether "highway rule" applicable to control and management of the mall by the defendant - duty of care.

Personal injuries - Laceration to leg - permanent scarring - damages.

Seat of Government (Administration) Act 1924 (Cth)

National Capital Development Commission Act 1957 (Cth)

Australian Capital Territory (Self Government) Act 1988 (Cth)

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)

Buckle v Bayswater Road Board [1936] HCA 65; (1937) 57 CLR 259

Kiosses v The Corporation of the City of Henley and Grange (1973) 6 SASR 186

Hellyer v The Commonwealth (1964) 5 FLR 459

Grafton City Council v Riley Dodds (Australia) Ltd (1956) SR (NSW) 53

Desmond v Mount Isa City Council [1991] 2 QdR 482 (FC)

Gorringe v The Transport Commission (Tas) [1950] HCA 6; (1950) 80 CLR 357

Hodgson v Cardwell Shire Council [1994] 1 QdR 357

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Kelly v Lendlease Retail Pty Ltd [1993] ACTSC 34; (1993) 113 FLR 21

March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

HEARING

CANBERRA, 26 May 1997 (hearing), 30 May 1997 (decision)

30:5:1997

Counsel for the Plaintiff: G J Lunney

Instructing solicitors: Abbott Tout Harper & Blain

Counsel for the Defendant: P A Walker

Instructing solicitors: ACT Government Solicitor

ORDER

1. Judgment be entered for the plaintiff against the defendant in the sum of $33,571.42.

2. The defendant pay to the Woden Valley Hospital such further sum by way of interest properly payable to the hospital by the plaintiff over and above the interest included in the calculation of past medical expenses in the sum of $3,561.86.

3. The defendant pay the plaintiff's costs of and incidental to the action including reserved costs, if any, to be taxed if not agreed.

DECISION

COOPER J

The Facts

1. In the evening of Friday 29 January 1993 the plaintiff and a friend were strolling in Garema Place, Canberra. They were whiling away the time before the cinema commenced. As they walked, the plaintiff suddenly fell. She had placed her foot in an uncovered drain. As a result of stepping into the drain she sustained severe lacerations to her lower left leg. The nature and extent of her injuries are not in dispute; nor is there any real issue as to the quantum of any award which would follow on a finding of liability against the defendant. The principal question is whether there existed any duty of care owed by the defendant to the plaintiff and if such a duty existed whether the same was breached by the defendant or the Commonwealth prior to self-government in 1989. In the event of a breach by the Commonwealth the defendant accepts liability for the consequences of such a breach.

Liability

2. The defendant denies that it is liable on two bases. The first is that the drain in question is located in a designated roadway which continues to be used as such and that the defendant as a highway authority is entitled to take advantage of what is known as the highway authority rule. The second is that the plaintiff has failed to show on the evidence tendered that the institution of any reasonable system of inspection, maintenance and repair of the grilles over the drain would have avoided the personal injury sustained by the plaintiff; that is, that the plaintiff has failed to prove any causative negligence.

3. On 11 November 1925 a plan of layout of the City of Canberra was gazetted pursuant to s 4(1) of the Seat of Government (Administration) Act 1924 (Cth). That plan showed an area dedicated as a roadway forming substantially an outer hexagonal ring road around what is now City Hill. The section of road with which these proceedings are concerned ("the original roadway") is that between what is now the intersection of East Row and Mort Street at one end and Petrie Plaza at the other. The gazettal in 1951 under the said Act amends the original roadway plan by variously deleting or adding roadways. It shows a further roadway adjoining the original roadway at an apex which formed one of the angles of the original hexagon. In fact the original roadway was developed as Alinga Street and was a formed roadway allowing for vehicular traffic to pass from the eastern end of Alinga Street, Mort Street and East Row to Petrie Street and beyond. The area gazetted in 1951 later became Garema Place and became in part a made roadway between Alinga Street and Bunda Street. In addition to vehicular traffic, provision was made for pedestrian traffic to move along footpaths to transit the area or to gain access to the premises abutting the streets.

4. It is sufficient for present purposes to record that local government powers, including the power to construct, control and maintain roads and footpaths, was until 1930 vested in the Federal Capital Commission by the operation of the Seat of Government (Administration) Act 1924 (Cth) (s 5 and s 14) and thereafter until 1957 was exerciseable by the Ministers for State for the Interior and for Works and their successors. In so far as roads were concerned, both the Federal Capital Commission and the departments were constrained to act in accordance with the road designations on the plan for the City of Canberra and Environs gazetted pursuant to s 4 of the Seat of Government (Administration) 1924 (Cth), including such amendments or variations as were made to that plan in accordance with the procedure provided under that Act.

5. In 1957 the National Capital Development Commission Act 1957 (Cth) established a Commission of that name (the NCDC) to undertake the planning, development and construction of the City of Canberra (s 11(1)). For that purpose it was empowered "to provide ... for the provision of buildings, roads, bridges, works for the supply of water or electricity, sewerage, drainage works and for other matters and things for or incidental to that purpose". (s 11(2)).

6. It would appear that by 1965 the NCDC had prepared a development plan to redevelop the original roadway, the roadway in Garema Place and adjoining open space areas into a city mall area for pedestrian use (see the NCDC city centre design reproduced in E Sparke Canberra 1954 - 1980 AGPS (1988) at p 127). To this end, on the evidence, in the early 1970's (in fact 1971; see Sparke at p 303) the general use of these roadways as a route for public vehicular passage was terminated. Although on the evidence there was no formal road closure, substantial construction work and improvements were undertaken which made use of the area as a general roadway for general public use impossible and physically integrated the former formed roadway and footpaths into one paved mall area to accommodate multiple public use functions.

7. The paved area created an open space which flowed into courtyards and spaces developed as public seating, shelter and recreation areas. The area was heavily planted with trees, garden and flower boxes were established and drinking fountains, ornamental fountains and sculptures were provided for. I infer from a consideration of the city site plan number E 2108-6039 prepared by the Australian Survey Office (Exhibit 16) that these were areas developed so that persons visiting the area or working in the adjacent buildings would have verdant places to sit, eat lunches or food whether acquired from an adjoining shop or not, to meet people, to play draughts, to go to the shops or simply to while away the time. Over time the area was further developed. A substantial children's merry-go-round was sited in an area which previously formed part of the old roadway at the intersection of Alinga Street and Petrie Street; a bus interchange was built at the now T intersection of Alinga Street, Mort Street and East Row and the paved plaza area extending from that area and now known as City Walk was extended beyond Ainslie Avenue to the east.

8. The development of City Walk and Garema Place into a built environment for the enjoyment of those members of the public who worked or visited the area and the breadth of facilities and spaces provided for their use is clearly demonstrated from the survey plan (Exhibit 16) and the aerial photograph dated October 1990 (Exhibit 15) tendered by the defendant.

9. Although no steps were formally taken to close the designated roadways the only way in which the boundaries of those roadways may now be ascertained with any certainty is by reference to a survey plan such as Exhibit 17 tendered by the defendant. This is because no physical feature delimits the former formed roadway from the adjoining open spaces. Any vehicular access to the mall area, I find, is restricted to vehicles performing a local authority service function ancillary to its use as a mall. For practical purposes the area of the former roadways is now an undefined part of the mall area and its use is restricted to persons on foot and those conveyed by pram, stroller or wheelchair.

10. I find that the redevelopment of the area of the former formed roadway and footpaths did not take place independently of the other works undertaken in the mall. Nor was the work undertaken the creation, repair, or maintenance of that area as a roadway by the Commonwealth in its capacity of highway authority. I find that the entire works which comprise the mall area were undertaken as part of a scheme of urban redevelopment to create a pedestrian precinct for mixed public use by visitors to, or those who worked, in the mall area and environs.

11. I find that the drain system into which the plaintiff stepped was constructed in 1984 - 1985 as part of the ongoing mall development. The plan Exhibit 16 shows the drain in issue in City Walk at the opening of the courtyard created by Garema Place. It was put by counsel for the defendant that it was constructed in that location as a wide open V to catch the sheet flow of rainwater coming down the incline of Garema Place to the drain. An examination of the plan, and the location of other drains with open grilles for covering to catch water flow in other parts of the mall, would suggest that the contention of the defendant is correct and I so find. What the plan also shows is that the drain in issue is part of a drainage plan for the mall as a whole and the fact that the drain is in an area within the area of the designated original roadway, and the area of the former formed road is fortuitous. There is nothing to suggest that the drain in issue formed part of the original roadway or formed road surface or was intended when constructed in 1984 - 1985 to service that part of the mall which remained formally as designated road area, as a road per se; the particular drain was constructed as part of a scheme for removal of groundwater from the mall, as a mall.

12. It follows that I reject the submission that the drain was constructed by the Commonwealth as part of a public roadway in its capacity as a highway authority so as to bring it within the statement of Dixon J in Buckle v Bayswater Road Board [1936] HCA 65; (1937) 57 CLR 259 where his Honour said (at 281):-

A highway is devoted to public use and its use is an advantage enjoyed as of common right. The public right is independent of the ownership of the soil, which might be vested in the frontagers or in other persons not in the least concerned in the state of the way. In order that the public right may be enjoyed to best advantage, road authorities are established and armed with powers in relation to the highways. For that purpose a legal authority is given to them to construct, maintain and repair roads and to keep them free of obstruction and in an orderly condition. But the existence of such powers gives rise to no civil liability for the consequences of the defective state of a road. Even where a parish was liable to indictment for failure to repair a highway, no action would lie against it for the recovery of damages sustained by an individual as a result of the disrepair of the road, and this notwithstanding the general rule that particular damage arising from a public nuisance is actionable. It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway.

13. It was submitted by counsel for the defendant that although vehicular traffic had effectively been eliminated from the roadway that did not prevent the area remaining a roadway and the defendant having the status of highway authority in respect of it. In support of this submission the defendant relied upon the decision of Bray CJ in Kiosses v The Corporation of the City of Henley and Grange (1973) 6 SASR 186 where his Honour said (at 193):-

In my view the concept of dedication for the purposes of public passage does not dictate any particular mode of passage and the area subject to the dedication is not altered or changed simply because of changes which make one particular mode of passage impossible in fact or in law. At common law "a highway may be dedicated only for one or more of the recognised kinds of traffic" (Halsbury, vol 19, p 57, par 84, and see p 12, par 9). So, in my view, the dedicated area is not changed, and therefore the provisions of the Roads (Opening and Closing)Act are not called into operation, simply because part of the road is made impassable to vehicles, so long as the right of pedestrian passage over that part is unaffected. If that is so the plaintiff's case must fail in so far as it is based on the Roads (Opening and Closing) Act. The green area will not cease to be available for use by pedestrians. It will, then, remain part of the dedicated highway area, even though vehicles will no longer be able to use it. And the narrowed portion of Yorkshire Street still usable by vehicles will remain usable by them even though passage over it in one direction is prohibited. In my opinion the proposed changes will not constitute any alteration or closing of a road within the meaning of the Roads (Opening and Closing) Act because they will not result in any change in the area dedicated for the purposes of public passage, though the mode of user by the public will be changed.

14. The issue in Kiosses was not whether the local authority was a highway authority or whether the highway rule operated in the circumstances under consideration in that case. The issue was whether or not the local authority had closed a road, or were empowered to do what they had done by narrowing a roadway and limiting it to pedestrian traffic without following the statutory scheme provided in the Road (Opening and Closing) Act 1932 - 1946 (SA) for road closure. That is a different question to the one presently in issue.

15. For present purposes I am prepared to assume that the exclusion of vehicular traffic from the designated road area in City Walk and Garema Place would not operate to close the road and that the passage on foot by pedestrians through the mall over the area which remains a designated road is consistent with the continued existence of a road. Likewise, I am prepared to assume for present purposes that the construction of a footpath for use by pedestrians comes within the highway rule (Hellyer v The Commonwealth (1964) 5 FLR 459 at 462 - 464). However, those two assumptions do not answer the issues in this case, namely, whether the integration of a designated roadway into a mall area wherein the designated roadway loses its predominant purpose, use, character and identity as a roadway takes the construction authority and the completed works outside the highway authority rule, and whether the construction of the drain in issue as a question of fact formed part of the construction of a roadway by a roadway authority within the meaning of the rule.

16. None of the cases referred to by the defendant deal with the conversion, whether by formal road closure or otherwise, of designated roadway or formed roadway into open space as part of a mall designed as a pedestrian precinct for multiple uses which include as one, but not the predominant use, the transit of pedestrians through the mall area. In my opinion, the trend of judicial authority is against any expansion of the highway rule beyond its clear limits as applicable to public roads owned, constructed or maintained by a highway authority in its capacity as a highway authority and not otherwise (see the discussion in Fleming Law of Torts, 8th ed at 438 - 439). It is not, in my view, an acceptable result that the application of the highway rule is determined by the fortuitous circumstance that the drain falls in that part of the mall which remained a formally designated roadway. Such a result is arbitrary and cannot be supported in terms of legal principle, reason, logic or demonstrable public policy. The historic philosophical and economic rationales for the highway rule do not exist when what is being undertaken is in effect a local government function to redevelop urban space, including a formed roadway and footpaths, as multifunctional urban open space for use as a pedestrian precinct. Further, the authorities support an approach which characterises the function and purpose for which the works are undertaken to determine whether the authority is acting as a highway authority and whether the works undertaken were highway works (Buckle at 286 - 287; Grafton City Council v Riley Dodds (Australia) Ltd (1956) SR (NSW) 53 at 56 - 58; Desmond v Mount Isa City Council [1991] 2 QdR 482 (FC) at 486, 494).

17. In the instant case for the reasons outlined above as to the nature and purpose of the works which created the mall, each process of characterisation should be answered in the negative.

18. The highway rule only protects a highway authority from a liability for nonfeasance in respect of the repair and maintenance of roadways within its control; it does not protect the authority from acts of misfeasance (Gorringe v The Transport Commission (Tas) [1950] HCA 6; (1950) 80 CLR 357 at 380; Hodgson v Cardwell Shire Council [1994] 1 QdR 357 at 366; Desmond v Mount Isa City Council at 486, 494). Thus the plaintiff, whether or not the defendant is a highway authority, mounts a case of misfeasance based upon the conduct of the defendant in relation to the management and control of the drain in issue as revealed by the defendant's answers to interrogatories.

19. Interrogatory number 3.1 asked:-

3.1 Did those drains have grilles on them, and if so: 3.1.1 Describe the construction of the grilles; 3.1.2 Could the grilles be removed; 3.1.3 Could the grilles be displaced from their usual position.

and was answered

3.1 Yes. 3.1.1 Cast Iron grilles approx 610 mm x 200 mm x 25 mm. 3.1.2 Yes the grilles are designed to be removed for maintenance purposes. 3.1.3 Yes.

20. Interrogatory number 4.3 asked:-

4.3 Did the defendant undertake any, and if so, what repairs of drains in Garema Place.

and was answered:-

4.3 Yes. Gratings on surface drains were replaced on 6 August 1992 and 18 August 1994.

21. Interrogatory number 10 asked:-

10 During the period of two months prior to 29 January 1993, was the defendant aware that drain covers in Garema Place might become displaced or removed, and if so: 10.1 What steps did the defendant take to prevent that happening; 10.2 What steps did the defendant take to correct the situation when either condition occurred.

and was answered:-

10 No. Drain covers are heavy concrete constructions and need mechanical devices to move them. If this interrogatory goes to the metal grates then the Territory had been aware from installation that they might be displaced or removed. They were designed to be removed easily. In order to minimise theft, vandalism or accidental displacement the Territory had adopted a practice of welding lengths of the grating together. 10.1 See my answer to the preceding interrogatory. 10.2 I do not understand this interrogatory.

22. Interrogatory number 11 asked:-

11 During January 1993, did the defendant have a system for inspection of drain covers in Garema Place, and if so: 11.1 What was the system; 11.2 How often was it carried out.

and was answered:-

11 No 11.1 I am not required to answer this interrogatory. 11.2 I am not required to answer this interrogatory.

23. It was submitted by counsel for the defendant that answer 11 ought to be construed as limited to concrete drain covers and not referable to the metal grilles covering drains. The answer to interrogatory number 10 does not suggest that the defendant intended the answer to interrogatory number 11 to be so limited. Even if it is read in such a limited way it does not alter the view which I have formed.

24. Assuming that the drains as constructed in 1984 - 1985 were as a matter of design and construction in accordance with the then acceptable standard for drains to collect rainwater flow as groundwater, the nature of the drains in terms of the risk of the grille being dislodged with attendant risk to a person walking in the vicinity of the drain was known to the defendant. Indeed, a system of partial welding was introduced to overcome the problem. In 1992 and 1994 the defendant saw fit to replace the grilles on the drains in Garema Place. In the context of the interrogatories delivered and the answers given, I find that the grilles replaced included those on the drain in issue at the opening of Garema Place at the City Walk section of the mall. Whether or not the defendant was a highway authority at the time, the decision to replace the grilles in 1992 required the defendant to exercise due care for the safety of pedestrians who would use the mall having regard to the defendant's knowledge of the risks attendant to the use of the previous grilles and the current standards of engineering design and practice. In my view the choice of the non-fastened grille in 1992 was negligent, notwithstanding that the choice of such a grille in 1984 - 1985 may not have been negligent. I am persuaded to this view because the defendant itself had come to the view that because the grilles were unsecured, the system in use had the risk of loss or displacement of the grilles with consequent exposure to the open drain. To overcome this risk, welding of sections was undertaken but it still left sections capable of dislodgment or removal. In other areas of the mall grilles of heavier weight and larger dimension which were secured in place by bolts, were used by the defendant. The use of these fixed grilles removed the risk of injury to a pedestrian from stepping into a drain where the grille had been removed or displaced. In an area developed for and used as a high density pedestrian precinct the risk of a pedestrian stepping into an uncovered drain in the event that the grille was dislocated or removed was both real and foreseeable (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47).

25. I accept the evidence of the engineer Mr Shoobridge that systems for locking grilles in place have become available since 1984 - 1985 in grilles supplied by manufacturers. What is self-evident to my mind, is that in the absence of some system of securing the grilles, it was necessary to institute a system of inspection, maintenance and repair if the grilles were to be used in a mall situation as opposed, for example, to use in some non-pedestrian area, to collect rainwater run-off where the grille function in the mall situation was as much to prevent a passerby inadvertently placing a foot in the drain as it was to keep leaves and debris out of the drain.

26. In my view the duty of care owed by the defendant to the users of the mall when it determined to replace the grilles to the drain in 1992 required either that the defendant install grilles which could not readily be removed or dislodged so as to leave the drain uncovered or to put in place a system of regular and reasonable inspection of the grilles to discover any lost, broken or displaced grille and to replace the same in order to protect users of the mall from personal injury arising from the absence of the grille over the drain.

27. Questions 3.1, 4.3, 10 and 11 of the interrogatories invited an answer disclosing the existence of some system of regular inspection, maintenance and repair of the grilles on the part of the defendant. Replacement of the grilles at two yearly intervals does not indicate the existence of such a system and I infer that none existed. I draw this inference all the more readily because the answer to interrogatory number 11 does not seek to differentiate between concrete covers and metal grille covers in admitting that no system of inspection existed and further because it was within the power of the defendant to call a responsible officer to give evidence of such a system, if one existed, and to seek to establish that the plaintiff's loss occurred notwithstanding the existence of such a system. This it failed to do.

28. Under the Australian Capital Territory (Self Government) Act 1988 (Cth) the Australian Capital Territory Executive was given the responsibility of governing the Territory in respect of the matters specified in Schedule 4 to the Act. Those matters include "Territory Land as defined in the Australian Capital Territory (Planning and Land Management) Act 1988", "Use, planning and development of land", "Public Works", "Local Government" and the like. Under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) the NCDC was abolished and land management was provided for under Part V of that Act.

29. Upon the commencement of self government in the Territory in 1989, management and control of the mall area and the drain in issue became vested in the defendant as the body politic established under s 7 of the Australian Capital Territory (Self Government) Act 1988 (Cth) and was exercised through the relevant arm of the Executive of the Territory.

30. In 1992 when it replaced the grilles on the open drains in Garema Place and in January 1993 when the plaintiff was injured, the defendant, as the entity responsible for the management and control of the mall area, as the body who encouraged members of the public to use the mall as a pedestrian precinct, and the entity which in fact placed the unfixed grilles in place in the drains, was in a sufficient relationship of proximity to persons who used the mall for its intended purposes to owe those persons a duty of care (Nagle v Rottnest Island Authority [1992] HCA 43; (1993) 177 CLR 423 at 430). The plaintiff fell within that class of persons to whom the duty was owed. The duty of care was to take all reasonable steps to protect the plaintiff from personal injury by stepping into an uncovered or unprotected drain. In the instant case, that duty could only be discharged by providing a grille which was fastened in place, or providing a reasonable system of inspection and repair or replacement to detect and replace missing or broken grille covers, or to provide a warning, covering, or fencing, of the uncovered drain until repair or replacement of the grille was carried out. The defendant, I find, breached that duty in that it replaced as drain covers metal non-fastened grilles in circumstances in which it knew or ought reasonably to have known that there was a risk of injury to pedestrians from such a grille being removed or dislodged from the drain. Alternatively, it failed to institute any or any reasonable system of inspection to discover missing or defective grilles. It is no answer on the part of the defendant to say that the plaintiff has not proved that the injury would not have occurred in fact if such a system had been in place (see Kelly v Lendlease Retail Pty Ltd [1993] ACTSC 34; (1993) 113 FLR 21 at 28). If it appears that no reasonable system was in place for the inspection, maintenance and repair of the grilles to ensure that the grilles were properly in position in the drain having regard to the expected hazards to pedestrians using the mall from an open drain where a grille had been removed, dislodged or displaced, it may be inferred that it is probable that if such a system had been in place then the fall of the plaintiff as a result of an uncovered drain with the consequent personal injury would have been avoided.

31. I find that the conduct of the defendant using grilles which were not secured in place or in not having any reasonable system of inspection, having regard to the known risks in the grilles used, was negligent and as a matter of fact and common sense its negligence contributed in a material way to the plaintiff stepping into the open drain. The defendant's negligence was therefore causative of the plaintiff sustaining the personal injury and her loss and damages consequent thereon. The defendant therefore is liable to the plaintiff in damages (March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 524, 531 - 532; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412 - 413).

Quantum

32. The defendant was born on 6 December 1972. At the time of her injury she was a university student at the University of Canberra. She also worked part-time at Woolworths on a casual basis. At times she was engaged in full time employment with that employer as a casual in vacation periods.

33. As a result of the injury she sustained lacerations to the frontal aspect of her left lower leg which required sutures. She was conveyed by ambulance from Garema Place to Woden Valley Hospital where she was eventually treated in casualty and returned that night to her home.

34. Over the ensuing days the plaintiff was at home, generally unable to walk or care for her washing and dressing needs and the need to replace the dressings to her sutured lacerations. These services, which occupied two to three hours per day, were undertaken by her mother who was a registered nurse.

35. The lacerations were infected and the plaintiff's condition deteriorated. She was admitted as an in-patient at the hospital on 4 February 1993 and treated with antibiotics and topical treatment of the lacerations to clean them and to allow discharge from them. She was discharged on 8 February 1993 to return to the care of her mother who provided nursing type care on a diminishing basis over the next few months.

36. Initially the lacerations caused the plaintiff significant pain and suffering. This diminished over time. The injury prevented her from engaging in netball and aerobics for a period of approximately six months. The injury for some time caused aching when standing for lengthy periods at work. For approximately the last twelve months the plaintiff has been symptom-free in a functional sense from the injury.

37. There is no permanent loss of function of the lower limb. The disfigurement from the original injury has diminished over time and on the medical evidence cannot be further improved by plastic surgery.

38. The plaintiff has been left with two areas of permanent scarring in the front of her lower left leg. Dr Peter Battlay, in a report dated 15 November 1996, described the scarring as follows:-

There is a vertical scar over the extensor aspect of the lower leg measuring 6 x 1.5 cms. It is covered by slightly pigmented and somewhat friable skin. The characteristics of the scar indicate healing by secondary intention.

Lower down, also on the extensor aspect, there is a pigmented scar, triangular pointing downwards, with a 4 cm base and 2.5 cm sides. The area is pigmented, and again is covered by friable skin, indicating healing by secondary intention. The appearances of this scar are those left by a partially necrotic proximally-based flap.

There is also a 2 cm long horizontal scar just above the lateral malleolus.

39. Dr A C James, in his report of 8 November 1996, described the scarring as follows:-

On examination, the vertical scar in the middle of the left leg measures 8 x 1.5 cms. The epithelium is thin and there is some hyperpigmentation on the lateral side.

The distal triangular shaped scar measures 3 x 3 cms, with thin skin and some hyperpigmentation.

40. Although they have improved substantially the scars are still a source of embarrassment to the plaintiff. She now wears clothing which covers her lower leg when she participates in sport or when she dresses to go to work or out in public. During the trial she was wearing dark stockings which had the effect of hiding the discoloration caused by the scarring.

41. Save for the figure for general damages under the head of pain and suffering and loss of the enjoyment and amenities of life, the parties are agreed on the amount recoverable under the other applicable heads including interest. Counsel for the plaintiff submitted that I ought award a sum in the range of $25,000 to $30,000 for pain and suffering and loss of the enjoyment and amenities of life. Counsel for the defendant submitted that a proper figure under this head was the sum of $25,000.

42. In the absence of any permanent loss of function to the left lower limb and having viewed the scarring, I am satisfied that an amount of $25,000 under these heads is an adequate sum and of that amount the sum of $20,000 should be awarded for past pain and suffering and loss of enjoyment and amenities. Any award for future loss under these heads must be confined to a sense of continuing embarrassment at the residual scarring. The complication of infection to the laceration causing a deterioration of the general health of the plaintiff and the need for in-patient care impacted adversely upon the plaintiff in terms of pain and suffering and loss of amenities over and above that attributable to the lacerations alone. This additional feature justifies an award of damages in the sum of approximately $20,000 for past pain and suffering and loss of the enjoyment and amenities of life. I should add that no comparative awards were cited by counsel on the issue of the quantum under these two heads of damage.

43. The following were agreed amounts as recoverable loss under other heads:-

1. Past medical expenses (including interest) $3561.86 2. Past economic loss $1306.90 3. Griffith v Kerkemeyer costs $892.50 4. Interest on past pain and suffering and loss of amenities (on $20,000) $1720.00 5. Other interest (excluding interest payable to hospital) $1090.16

44. I award damages by way of general and special damages including interest in the sum of $33,571.42. There will be judgment for the plaintiff in the sum of $33,571.42 together with the costs of and incidental to the action to be taxed if not agreed.

45. The defendant by its counsel conceded that if it was liable to pay damages it was obliged to pay any additional amount by way of interest properly payable to the Woden Valley Hospital which has not been included in the above item for past medical expenses.