New South Wales v Griffin [2004] NSWCA 17 (13 February 2004)

Last Updated: 27 February 2004

NEW SOUTH WALES COURT OF APPEAL

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

FILE NUMBER(S):

40274/03

HEARING DATE(S): 13/02/04

JUDGMENT DATE: 13/02/2004

PARTIES:

State of New South Wales (Appellant)

David Michael Griffin (Respondent)

JUDGMENT OF: Giles JA Ipp JA McColl JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20221/00

LOWER COURT JUDICIAL OFFICER: Dowd J

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)

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

LEGISLATION CITED:

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.

JUDGMENT:

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:

(a) Whether the trial judge rightly rejected the appellant's assertion that the respondent was contributorily negligent;

(b) Whether the judge correctly assessed the respondent's future loss of earning capacity at $221,513.76;

(c) Whether the judge correctly assessed the loss of superannuation benefits suffered by the respondent;

(d) Whether the amount of future care as assessed by his Honour, namely $171,372, was correct.

6 I turn firstly to the question of contributory negligence.

7 The evidence as to what led to the fight on 1 March 1995 was not particularly detailed. The judge relied on a report dated 21 March 1995 prepared by the school principal. The report noted that the respondent and another boy were seen arguing in the art class early that day:

"The class started talking about a fight between these two at recess. Someone wrote on the whiteboard in Art that there would be a fight. The class informed others in the school that there would be a fight at recess.

At recess both boys went to the sloped area off the basketball courts. It would appear that David began swinging punches first. Joshua hit David in the head. David fell to the ground and was unconscious."

8 Dr Morrison SC, who together with Mr Lonergan appeared for the appellant, submitted in essence that the respondent failed to exercise due care for his own safety by fighting when he knew that this was wrong and against the school rules, and he knew that there was a real risk that he might be hurt.

9 In my opinion this submission is divorced from the reality of the situation. The principal's report gives clear impression of the excited expectation amongst the students at the school and their anticipation that the fight would take place. The belief that the fight would occur spread throughout the school and indeed a notice to that effect was placed on the class whiteboard. Peer pressure on the respondent must have been very strong. The proposition that in those circumstances the respondent should not have turned up to fight the other boy is, in my view, quite unreasonable. Had he taken this course he would have had to face the charge of cowardice and he would have become notorious throughout the school. In my view the standard of conduct suggested bears no relationship with what should be expect of a 13 year old boy.

10 The respondent's conduct was part of "the foreseeable folly of youthful exuberance," see Brennan J in The Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 280. The dangers attendant on boys fighting in the playground were precisely the dangers against which the appellant was bound to take reasonable steps to protect the respondent, see Introvigne at 281.

11 I would not disturb his Honour's finding that there was no contributory negligence on the part of the respondent.

12 I now turn to the award of $221,513.76 in respect of future loss of earning capacity.

13 At the date of judgment, 30 April 2002, the respondent was twenty years old. In the first step of assessing future economic loss his Honour allowed for a loss of $450 net per week for five years less fifteen per cent in respect of vicissitudes. This was on the basis that the respondent needed to spend two years undertaking a TAFE course and a further three years to undertake some trade or other similar course. The appellant makes no complaint about these matters.

14 The balance of the total sum awarded for future economic loss represented the respondent's loss in this regard over the period subsequent to the five years previously mentioned. His Honour considered that for the balance of the respondent's working life, a period which he determined as being a further thirty nine years, the respondent should be awarded damages based on a loss of $250 net per week less fifteen per cent in respect of vicissitudes. The appellant submitted that this component of the award was wholly excessive.

15 Dowd J explained his reasons as follows:

"104. For the balance of his working life, which I take to be thirty-nine years, it seems to me that some of the problems which he suffers that are attributable to the injury, will mean that he will need a somewhat more understanding employer and thus, there will be significant periods of unemployment going beyond the normal fifteen percent for vicissitudes, which I propose to allow as a reduction on future loss of earnings.

105. Taking into account that there will be significant periods of unemployment, I have averaged out each year to achieve the difference between the wage that he would otherwise have earned from what he is likely to actually earn, taking into account that he was never likely to have a high income on his intellectual capacity and pre-existing problems.

106. I consider, therefore, that future loss of earning should be based on a loss of two hundred and fifty dollars per week for thirty-nine and a half years, delayed five years."

16 Dr Morrison accepted that there was a basis for holding that there had been a disruption to the respondent's education and his entering the workforce, but submitted that this was adequately catered for by the allowance of $450 per week over the period of five years.

17 A considerable body of medical evidence, as well as the evidence of the respondent and his mother, was led in regard to the issue of the respondent's capacity to work in the future. In the end however, Dowd J accepted the evidence of Dr P Rawling, a neuropsychologist. Both Dr Morrison and Mr Toomey QC, who together with Mr Black appeared for the respondent, argued the appeal on the basis that Dr Rawling's evidence was the best evidence of the respondent's loss of economic capacity and did not refer in any substantial way to any other expert evidence in this regard.

18 As Dr Rawling explained, an accurate assessment of the nature and extent of the brain damage sustained by the respondent in consequence of the fight was made particularly difficult by reason of the fact that prior to the fight the respondent suffered from a number of physical conditions that tended to detract from his capacity to earn.

19 When the respondent first entered the school system he had difficulty with reading and in expressing thoughts in written form. He had spelling difficulties. He was prone to temper tantrums. He became upset when frustrated. He had problems with language and mathematics. He had poor hand-eye co-ordination. He was an immature student who preferred to play rather than work. As a young boy he was shown to be poor in all areas of learning with difficulties in concentration. His IQ showed scattered results in the nineties, that is, in the low average range. He had poor vision in his left eye as a result of corneal scarring. He had problems with his right ear. In effect, he had always struggled academically and at the time of the fight he was regarded as a boy who was usually at the bottom fifty per cent of his classes, who had trouble reading.

20 Dr Rawling, in a report dated 14 May 2001, noted that a neuropsychological assessment two years after the fight revealed a substantial decline in intellectual efficiency, with IQ scores dropping from an average to a mildly intellectually disabled level. Another expert expressed the view that prior to the fight, school based assessment produced some evidence of attentional problems, but these were not of sufficient severity to produce the marked intellectual IQ deficit that had resulted subsequent to the fight.

21 Dr Rawling expressed the view that at that stage it seemed likely that the head injury had led to a significant exacerbation of the attention deficit problems. He noted that at subsequent assessments the IQ scores had returned to the level prior to the fight. Nevertheless he said that there was continuing evidence of a specific attentional deficit. He accepted that that deficit was secondary to brain injury. He said that as at 14 May 2001 there was evidence of a persisting attentional deficit. He concluded:

"The head injury and the attendant psychosocial problems have had a very significant impact on [the respondent's] academic achievement ... He had not been able to work since leaving school and had become dependent on the care and supervision provided by his parents. Currently his prospects for sustaining himself in open employment [seems] very poor."

Dr Rawling proceeded to give oral evidence. He explained that by 1998 the respondent's IQ scores "were pretty much at the level that you would expect on the basis of early assessment."

22 He accepted that there was "some suggestion of attentional problems in the pre-accident assessment." He reiterated that at the time of the trial there was a persisting deficit in attention. He said:

"I think it's hard to explain his current level of disability entirely in terms of his brain injury and attentional deficit. But what you would expect of a person with an organic attentional problem, which I think [the respondent] has, is this fatigue. We think that because the attentional ability is diminished, [the] sort of routine tasks that for most of us don't tap our mental energy reserves in any serious way, when your attention is impaired they do drain your energy reserve more quickly."

23 Dr Rawling went on to say that the continuing attention deficit problems would make it hard for the respondent to maintain an adequate level of functioning over the course of a working day or a working week. He said:

"So you would expect, on what I have in front of me, that there is any number of jobs he has got the intellectual ability to cope with, what will beat him or cause problems for him at least is his consistency over time. He will tire. He's more likely to make mistakes. And then with [the respondent] you have got the emotional sequelae to this accident whereas lost confidence, become dependent, withdrawn, all the products of trauma."

24 Dr Rawling expressed the view that the respondent might become more independent in the future and his capacity to be employed might improve, but accepted that there would always "be a substantial compromise of his employment ability."

25 Later in his testimony when cross-examined by senior counsel then appearing on behalf of the appellant, Dr Rawling said that the degree of attention deficit from which the respondent was suffering was of "mild to moderate severity." He opined that this particular deficit was "due to brain injury."

26 In these circumstances, despite Dr Morrison's forceful submissions to the contrary, I consider that on the evidence accepted by the judge and which, as I have indicated, appears to be accepted by both parties in this appeal, at the time of the trial the respondent was suffering from an attention deficit disorder of mild to moderate severity due to brain injury. The only brain injury from which the respondent suffered was that caused by the appellant's negligence.

27 Dr Rawling explained that the following difficulties resulted from an inability to focus or maintain attention. He said:

"One is the ability to retain information in your mind and manipulate. If I say to you that I buy seven two cent stamps and give the clerk a fifty cent piece, how much should I get back? You have to retain and do the two calculations and then give an answer. If you can't do that, you are going to give the wrong answer. It is the ability to resist distraction and try to test that. Another one is just speed."

28 In my opinion, these matters as explained by Dr Rawling, all caused by the appellant's negligence, are likely to hamper the respondent severely in attempting to obtain employment in the future. I conclude that the evidence amply supports the judge's finding that throughout his working life there will be significant periods of unemployment going far beyond the normal allowance for vicissitudes of life. In my view there is no proper basis for challenging the finding made by his Honour with regard to future economic loss. In my view, this aspect of the appeal fails.

29 The appeal in regard to the amount awarded in respect of loss of superannuation benefits is dependent upon the appeal in respect of loss of future economic capacity. As the appeal in respect of the latter issue in my opinion fails, so does the appeal in respect of loss of superannuation benefits.

30 I now return to the appeal in respect of future domestic care. I pause to note that Dowd J awarded the sum of $10,000 in respect of past domestic care and there is no challenge to this award.

31 In dealing with future domestic care his Honour said:

"109. I consider, however, that the plaintiff will have needs for additional cleaning assistance, over and above that which would otherwise be provided. He has been socially disadvantaged, and he has yet to establish a relationship with females and will [lose], for a significant period, the assistance of sharing accommodation with another, as an alternative to that which his mother now provides. It is, in my view, unlikely to be significant in that he is now able to do his own room and can make simple meals, probably not inconsistent with most young men, but I can see no basis for the claim by the plaintiff for twenty hours per week.

110. The defendant, quite correctly, submitted that in his case it may take a little bit more organising that others. I consider that this is correct, but as a result of the injuries the plaintiff has suffered, I do consider that he will need assistance several days a week, more than he would otherwise and would allow six hours per week at twenty dollars per hour, to cover, not only domestic, but gardening and other requirements, which I accept he is unable to carry out."

32 In my view there is a fundamental inconsistency between his Honour's finding on the one hand that the respondent has the capacity to clean and tidy his own room and to make simple meals for himself as well as having a relatively significant residual capacity to work, and - on the other hand - the finding that the respondent should be compensated on the basis that he needs additional domestic care for six hours for week for domestic, gardening and other requirements.

33 Mr Toomey drew attention to the fact that the respondent had difficulty with fatigue. He found cleaning and vacuuming to be physically exhausting. He had difficulty mowing the lawn and using a whipper snipper, and his mother is said to have done his cooking and washing.

34 I am not persuaded by these matters. The respondent's mother testified that he tidied his room himself. He cleans his shoes. He can now shave properly. He bathes himself and washes himself, despite his mother saying that she has to check because he forgets to use soap, toothpaste and shampoo. I do not think that these defects in memory justify any award in respect of domestic care.

35 I accept that the respondent is likely to be fatigued by whatever employment he obtains in the future. That fatigue will be exacerbated by whatever work he has to do in caring for himself at home. Nevertheless, on reading the evidence as to the difficulties the respondent is likely to face in this regard, it seems to me that his situation will not be significantly different to that of the mass of single persons who live alone and work to support themselves. The attentional deficit disorders from which the respondent suffers should not make any material difference to his ability to carry out ordinary domestic chores adequately.

36 I accept that the respondent will suffer from fatigue to a degree greater than other persons. On my reading of the evidence however, that fatigue is not likely to be so severe as to require him to obtain the assistance of others to clean, cook, wash and perform other tasks involved in maintaining himself.

37 In my view, the trial judge erred in holding that the respondent will need assistance for several days each week to cover his domestic, gardening and other requirements.

38 Mr Toomey pointed out that the appellant had not made any submissions at the trial positively contesting the respondent's claim for future domestic care. A schedule of damages was put to Dowd J on the appellant's behalf which omitted any reference to an award in respect of future domestic care. It is plain that the appellant made no concession in regard to future domestic care and in my view the failure to make positive assertions in this regard should not preclude the appellant from succeeding on this ground on appeal, as I think it should.

39 I would uphold the appeal in respect of the award for future domestic care. In my view, the respondent is not entitled to any damages in respect of this head.

40 In summary therefore I would uphold the appeal to the extent that I would set aside the award of $171,372 in respect of future care and the verdict and judgment sum of $962,234.11 should be reduced accordingly.

41 As regards costs, the appellant was successful in regard to one of the three issues that were argued. This is a significant matter to take into account. Mr Toomey submitted that regard should also be had to the appellant's omission to make positive submissions at the trial regarding future domestic care. In my view, that aspect has no bearing on the costs order that should be made. I am of the opinion that justice will be done if the respondent is ordered to pay half the appellant's costs of the appeal and I propose that such an order be made.

42 GILES JA: I agree.

43 McCOLL JA: I also agree.

44 GILES JA: The orders of the Court will be in accordance with those proposed by Ipp JA.

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LAST UPDATED: 20/02/2004