Martin v. The Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWCA 132

Court of Appeal (NSW)|2006-05-16|Before: Giles JA, Hodgson JA, Ipp JA, Like Hodgson JA, McNair J

CITATION: Martin v. The Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWCA 132

JUDGMENT OF: Giles JA at 1; Hodgson JA at 12; Ipp JA

DECISION: 1. Appeal allowed. 2. Judgment below set aside. 3. In lieu thereof, judgment for the appellant in the sum of $80,519.10, to take effect as from 1 June 2005. 4. Respondent to pay appellant's costs of the proceedings. 5. Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund certificate if otherwise eligible.

CATCHWORDS: TORT - NEGLIGENCE - Schoolgirl injured on a school excursion when she slipped and fell from a 3.8 metre high structure in an obstacle course - Whether reasonable precautions taken against risk of injury.

CASES CITED: The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v. Kondrajian [2001] NSWCA 308 Wyong Shire Council v. Shirt (1980) 146 CLR 40

PARTIES: Daniella Martin - appellant The Trustees of the Roman Catholic Church of the Archdiocese of Sydney - respondent

COUNSEL: Ms. S. Norton SC with Ms. E.E. Walsh for appellant Mr. I.G. Harrison SC with Mr. J.B. Turnbull for respondent

SOLICITORS: Brydens, Liverpool for appellant McCabe Terrill, Sydney for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/05 DC 4883/03

GILES JA HODGSON JA IPP JA

Monday 29 May 2006 MARTIN V. THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE OF SYDNEY Judgment

1 GILES JA: Like Hodgson JA, whose reasons I have read in draft, I find whether reasonable care was not exercised extremely difficult.

2 Students engaged in the activities at the camp were not to be coddled, and were to be challenged. There was a risk of falling and injury when mounting either ramp of Mt Kosciusko, even with full instruction and supervision, but that did not mean that students should not engage in the activity or that their school would be liable to them. The reasonable care required of a school had to take into account the nature of the Mt Kosciusko activity and that an inherent risk was to be accepted. There must be remembered in determining whether there has been a failure to take reasonable care that the hind-sight of focus on the happening of a foreseeable risk must not distort the determination, and the observations of Ipp JA in The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 at [66] - "66 The question of what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury. Otherwise, as Morris LJ said in Wright v Cheshire County Council (1952) 2 All ER 789 at 796 'only inactivity and inanition could be planned'. And as McNair J observed in Jeffrey v London County Council (1954) 52 LGR 521 at 523: '[S]chool authorities…must strike some balance between the meticulous supervision of children every moment of the time when they are under their care, and the very desirable object of encouraging the sturdy independence of children as they grow up…'." 3 I have concluded, not without doubt, that reasonable care was not exercised, but for slightly different reasons from those of Hodgson JA.

4 On the well-known instruction of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8, it had to be asked what a reasonable man would do in relation to the risk of injury, a task calling for "consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have".

5 To this was added s 5B of the Civil Liability Act 2002 - " 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."

6 As appears from the reasons of Hodgson JA, the evidence of instruction on how to climb the Mt Kosciusko ramps, and on how to deal with slipping and falling, was at best sketchy, and the girls said that they were not instructed or did not recall being instructed on how to climb safely. It may be that that alone did not mean failure to take reasonable care; the plaintiff did not lead evidence of what instruction should have been given, and to an extent the challenge properly presented to the girls was to achieve a difficult climb. Further, there was the evidence that the Mt Kosciusko activity had been undertaken by a great many students without serious incident, use which may well have included sketchy instruction and wet conditions.

7 However, the defendant was required to respond, through Ms Stavert and Mr Hill, to the risk of injury foreseeable on the particular occasion. Two or perhaps three girls preceding the plaintiff had slipped, and it should have been evident that they were having difficulty in keeping their footing on the ramp. This would have been due to one or a combination of an incorrect climbing technique and wet shoes, compromising the grip of the shoes on the ramp as they ascended holding onto the rope. While one girl did succeed in climbing, the slipping of the two or three girls should have alerted those supervising the activity to a risk considerably greater than the inherent risk, and to the need to meet it by correcting the climbing technique or the slipperiness from wet shoes or, if that could not be done, calling off the activity of climbing the right-hand ramp.

8 There was an increased risk, one which could come home when a girl was two or three metres above the ground, and a "spotter" or "catcher" could well not prevent or alleviate injury from falling from that height; another of the students acting as a "spotter" or "catcher" would be quite unlikely to do so. The increased risk was foreseeable and not insignificant, and if a girl did slip and fall from a height (as the two or three girls had not - they slipped at an early point in the climb) there could be a quite serious injury. It was easy to meet the increased risk in the manner abovementioned, and to let the girls undertake the less risky challenge of climbing the other ramp with the horizontal logs.

9 Ms Stavert's attention was given to the other ramp with the horizontal logs. If Mr Hill was giving attention to the right-hand ramp on which the plaintiff slipped, he did not intervene. The failure to appreciate, or to respond to, the increased risk of injury was within the particular of failure in instruction and supervision, and reasonable care was not exercised.

10 It was not submitted that there was the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff (Civil Liability Act s.5L).

11 I agree with Hodgson JA as to damages, and with the orders his Honour proposes.

12 HODGSON JA: On 1 June 2005, Acting Judge Boulton gave judgment for the defendant with costs, in proceedings in which the appellant had sued the respondent for damages for personal injury, arising out of an accident that occurred on 9 November 2000. The appellant appeals from that judgment.

CIRCUMSTANCES 13 The appellant was born on 14 July 1986, and in 2000 she was a Year 8 student at All Saints Catholic Girls' College at Liverpool.

14 In November 2000, the College conducted a two-day camp for Year 8 students at Cataract Scout Park, Baden Powell Drive, Appin. Students were to depart by bus from the school at 9am on Thursday 9 November and return at 3pm on Friday 10 November. In the letter to parents enclosing a parental permission form, the camp was described as an "adventure-style camp", with aims including to "develop skills in coping with obstacles".

15 At the camp, the girls were divided into groups of between 15 and 20, each group being supervised by a teacher and an instructor from the camp. The appellant was in a group supervised by a teacher Ms. Stavert and an instructor Mr. Hill.

16 The appellant's group completed a number of activities in the morning of 9 November, including a water slide. They were then taken to "Challenge Valley", which was an obstacle course in the bush.

17 The accident in which the appellant was injured occurred at an obstacle called Mt. Kosciusko, a structure having a platform about 3.8 metres above the ground which could be reached by either of two ramp-like structures. The ramp on the left consisted of horizontal logs forming a rough stairway, which could be climbed with the assistance of a knotted heavy-duty rope which hung from the platform or somewhere above the platform. The ramp on the right consisted of what has been called a timber plank, which also could be climbed with the assistance of a knotted heavy-duty rope hanging from the platform or somewhere above the platform. From the diagram which was in evidence, it would seem that each of these ramps was about 2.4 metres wide, and angled at about 60 degrees or a little more from the horizontal.

18 Before reaching Mt. Kosciusko, the appellant's group had gone through obstacles involving contact with muddy water, so that their clothes and shoes had become wet. At the time the appellant's group attempted to climb this obstacle, Mr. Hill was positioned on the platform and Ms. Stavert was positioned near the ramp consisting of horizontal logs.

19 The girls in the appellant's group were given the option of climbing either ramp. A number of girls chose to climb the ramp consisting of horizontal logs, that is the ramp on the left. The appellant went to the ramp on the right, and was the fourth or fifth girl to attempt to climb that ramp. One of the girls preceding the appellant climbed it successfully, while the other two or three failed and dropped back to the ground without injuring themselves.

20 The appellant then attempted to climb this ramp, and got about half way up the ramp, and then fell back to the ground. There was some question whether the fall was caused by slipping or loss of balance or both; but it is clear that the appellant must also have lost her grip on the rope. The fall caused her to break her left leg, about three inches above the ankle.

21 Mr. Hill filled out an accident report on the day of the accident, which stated the time of the accident as being 5.15pm. The report gave the following account of what happened: Whilst climbing activity Mt. Kosiosko (sic) Daniella slipped and lost balance and started to swing the girls spotting her could not catch her at (sic) this stage she dropped and that is when the break occurred on the right leg 3 inches above ankle.

22 The appellant was taken to Campbelltown Hospital. A nail was inserted by Dr. Dave in her leg. She underwent further surgery on 13 November, and there was a delayed closure on 14 and 16 November. The appellant is now left with noticeable scars on her leg, and she has some ongoing problems with her leg.

ISSUES AT TRIAL 23 The Statement of Claim included the following particulars of negligence: (a) Instructing the Plaintiff to attempt to negotiate an obstacle course that was dangerous. (b) Instructing the Plaintiff to attempt to climb up a wooden plank that was slippery and dangerous due to the presence of mud and water on the planks. (c) Failing to warn the Plaintiff that attempting to climb the plank was dangerous. (d) Failing to properly instruct and supervise the Plaintiff in relation to the camp activities including negotiating the obstacle course and attempting to climb the wooden plank.

24 The Defence alleged contributory negligence, but that is no longer an issue.

25 Factual issues contested at the trial included the following: (1) Were the relevant activities compulsory or did the appellant believe they were? (2) What, if any, instructions or warnings were given? (3) Were there "spotters" or "catchers" in position to assist the appellant if she fell? (4) Was the plank slippery? (5) Did the appellant slip or lose her balance? (6) What was the prior history of incidents at Mt. Kosciusko?

26 Evidence was given by the appellant and five other students. For the respondent, evidence was given by Ms. Stavert and another teacher Ms. Leigh. By the time of the hearing, Mr. Hill was living in Canada, and a statement of his made on 14 January 2005 was admitted into evidence.

DECISION OF PRIMARY JUDGE 27 The primary judge made the following factual findings, among others: (1) The girls were encouraged to try each obstacle, but they could and did decline some tasks. (2) Mr. Hill described the task of each obstacle, and demonstrated climbing the right side of Mr. Kosciusko. (3) The plank climbed by the appellant was dry (but had some residual dried mud from previous use). (4) The appellant lost her balance and fell. (5) Mt. Kosciusko had previously been used for a large number of secondary school pupils without incident.

He did not make a finding whether or not there was a spotter in place at the foot of the ramp climbed by the appellant. He said that if the safety of the system depended on an inexperienced person acting as a spotter, the system would be defective; and that the case did not hinge on the presence or absence of spotters, because the appellant did not make any allegation of negligence on this ground.

28 The primary judge found that the allegation of "failure to properly instruct and supervise" was not sustained. He found the plank was not slippery and dangerous; and that climbing the plank was challenging, but not inherently dangerous. He found there was no evidence as to what remedial action could or should have been taken, apart from stopping participation in the activity altogether. No form of warning was suggested other than a warning that the activity was dangerous, and the primary judge found that such a warning was not warranted.

29 The primary judge considered s.5B of the Civil Liability Act 2002. He found that the risk of the activity was small, and that having regard to the benefit of adventure activity to secondary pupils, there were no further precautions that a reasonable person should have taken.

30 He assessed damages, against the possibility of a successful appeal, as follows: non-economic loss at 25% of the most extreme case, $26,000; past out-of-pockets $3,769.10; future out-of-pockets $10,750; future economic loss $20,000; giving a total of $60,519.10.

GROUNDS OF APPEAL 31 The appellant appeals on the following grounds: 1. The judgment was against the evidence and the weight of the evidence. 2. Insufficient reasons were given for the entering of a verdict for the respondent. 3. Having found that the activities the appellant performed prior to attempting Mount Kosciusko were intended to leave participants with wet clothing and shoes the trial judge erred in failing to find that it was reasonable for the respondent to make no allowance for that before directing the appellant to attempt the obstacle. 4. The trial judge erred in failing to hold that as the appellant had been instructed that activities in Challenge Valley were compulsory she therefore believed she was required to attempt the obstacle known as Mount Kosciusko. 5. The trial judge erred in failing to find that the appellant had slipped because of a combination of mud and water on her shoes and the surface of the obstacle. 6. Having found that of the 4 or 5 girls who attempted the climb before the appellant only 1 had succeeded whilst the others fell the trial judge erred in finding that the obstacle had been used without prior incident. 7. The trial judge erred in accepting the evidence of Mr Hill which was contrary to the evidence of the appellant and the other students called without giving any or any adequate reasons and without making any findings of credit. 8. The trial judge erred in giving undue weight to the affidavit of Mr Hill when he was not available for cross examination. 9. The trial judge erred in finding that the activity was adequately supervised when there was no evidence the students had been warned of risk, advised to dry their shoes, instructed what to do if they started to fall, or given any further instructions after previous falls in circumstances where there was no protection available if a student fell. 10. The trial judge erred in finding there was an onus on the appellant to formulate an appropriate warning. 11. The trial judge's finding of non economic loss was manifestly inadequate. 12. The trial judge's allowance of future economic loss was manifestly inadequate.

SUBMISSIONS ON LIABILITY APPEAL 32 Ms. Norton SC for the appellant submitted that there was error by the primary judge in not finding that the appellant slipped on the plank, and in not finding that the plank itself was slippery, at least for girls with wet shoes. Ms. Norton submitted that, in the circumstances of that day, when three out of four (or perhaps two out of three) girls had slipped back, this indicated that there were problems, either because of the prevailing conditions or because the girls were not climbing the obstacle correctly. Although these girls fell from a low height and did not injure themselves, the fact that they fell showed that there was a possibility of a fall from a greater height with a substantial risk of injury. Accordingly, the respondent or its agents should either have stopped the use of the smooth ramp, or at least made sure there were precautions in place to minimise the risk of injury in the event of a fall from higher up, for example, by adequate use of spotters or catchers.

33 Ms. Norton submitted that the absence of spotters was relied on by the appellant below, and was within the particulars of negligence; and the need for spotters was supported by Mr. Hill's statement. Accordingly, the primary judge was in error in simply dismissing the issue of spotters as irrelevant.

34 Ms. Norton submitted that all the girls gave evidence that they were not given instructions on being spotters or catchers. This evidence should have been accepted over the unsworn statement by Mr. Hill that he "instructed each student how to be a spotter", with no indication in the statement of what he actually said to each student. At the very least, Ms. Stavert, who was next to the easy ramp consisting of logs, should have been positioned below the more difficult smooth ramp.

35 Mr. Harrison SC, for the respondent, submitted that the object of the camp, and of this obstacle in particular, was that the girls be given a challenge. This obstacle was difficult, but that did not mean that it was dangerous or an unreasonable risk. There was no evidence that anything untoward had previously happened on this obstacle, the statement of Mr. Hill that thousands had negotiated the obstacle without incident was the only evidence on the matter, and the primary judge was correct to accept it. It was reasonable to accept that the prior use had been in all conditions, and there was no evidence suggesting it was dangerous to undertake the obstacle after rain or with wet shoes.

36 Mr. Harrison submitted that the fact that two or three girls slipped and fell on their feet did not suggest a real problem requiring the activity to be stopped. It was quite normal that some challenging obstacles would not be completed, as had been the case with the monkey bars on the same day. The positioning of a spotter or catcher would not have made any difference. The positioning of another 14-year-old girl at the bottom of the ramp would not be a sufficient precaution if there were a substantial risk of injury by a fall from high up on the ramp, and would not have ameliorated this accident. The primary judge was correct to treat the issue of spotters as irrelevant.

37 Accordingly, Mr. Harrison submitted, the primary judge was correct in not being satisfied that there was an unreasonable risk, or that the activity should have been stopped, or that there was some precaution that should have been taken that was not taken.

DECISION ON LIABILITY APPEAL 38 It was an important part of the appellant's case that her shoes were wet, and that the plank was slippery, at least for someone with wet shoes. The finding of the primary judge to the effect that the appellant lost balance and did not slip was in my opinion an error, and one which had the potential to affect the result in the case.

39 The primary judge apparently overlooked that, in his statement made on the day of the accident, Mr. Hill wrote that the appellant "slipped and lost balance". In circumstances where the evidence was that two or three girls in front of the appellant slipped, where the appellant's own evidence was that she slipped, and (as the primary judge found) their shoes were wet, a finding that the appellant lost balance rather than slipped, on the basis of Mr. Hill's later statement that the appellant lost balance, was an error. This error is disclosed particularly in the primary judge's assertion, as supporting a finding that the appellant did not slip, that Mr. Hill's two statements were consistent: their consistency in relation to losing balance did not count against a finding that the appellant slipped, in circumstances where the statement made on the day of the accident asserted that the appellant slipped.

40 The question then is, does this materially affect the primary judge's decision, and if so, should this Court make a contrary finding; or are there other reasons for setting aside the primary judge's decision?

41 Other findings of the primary judge which in my opinion are not affected by error are to the effect that the appellant had a choice (she plainly had a choice at least as to whether to attempt to climb the obstacle by the log ramp or the smooth ramp), and the finding that the obstacle had been used in the past by a very large number of secondary school pupils without incident. However, it is also the case that the appellant was a 14-year-old girl who was encouraged to tackle challenging obstacles; and the evidence did not establish the circumstances of prior uses of the obstacles. On the latter matter, however, there is force in Mr. Harrison's submission that it is reasonable to assume that the usage in the past had been in all conditions, including wet conditions.

42 As to the presence of spotters, there is force in the view taken by the primary judge that, if the system were unsafe without them, it would not be made safe by them; and also in the submission of Mr. Harrison that the presence of spotters would not have ameliorated this accident.

43 However, there is also force in Ms. Norton's submission that Mr. Hill's statement suggested that the use of spotters was one part of the safety precautions considered appropriate for this obstacle; and also in her submission that the prior slipping of two or three girls indicated there was some problem on this day. Those girls apparently did not fall far; but if another girl reached a height of two or three metres above the ground and then slipped and fell, there would plainly then be some risk of injury. The respondent led little evidence as to how the risk of injury from a fall from the upper part of the ramp was addressed. Mr. Hill's statement said that he gave instructions "on how to safely negotiate the obstacle"; but he did not indicate what it was he said, in particular about what a girl was to do if she slipped and lost her footing on the upper part of the ramp. For example, he did not say that his instructions dealt with the question whether or not in those circumstances the girl should make sure that she held on to the rope and let herself down by the rope. His statement also said that he instructed each student how to be a spotter; but again, his statement did not indicate what it was he said, in particular about what the spotter was to do if another girl was falling from a height of two or three metres or more.

44 Another obstacle mentioned in the evidence was the obstacle called "monkey bars"; and the evidence was that many girls dropped from them into muddy water. It seems reasonable to assume that they did not drop more than (say) about one metre, and if so, that would suggest there was no risk of any significant injury from those circumstances; but in the case of Mt. Kosciusko, there was a possibility, which could not be ignored, of a fall from a height of up to 3.8 metres, particularly in circumstances where the girls had wet shoes and two or three had already slipped from lower heights. The incident-free history of the obstacle could be taken to indicate that there was no need for particular precaution; but as mentioned above, the evidence did not establish the circumstances of previous use, and did not establish what safety instructions were given to the girls either as climbers or spotters.

45 In all these circumstances, I find the questions whether the primary judge's error was material, and if so whether this Court should be satisfied that reasonable care was not exercised, extremely difficult. However, I have come to the view that the following is the correct analysis.

46 The appellant and the other girls with her attempting to climb the plank had wet shoes. Two or three girls in front of the appellant slipped on the plank, indicating that there was a significant risk that the appellant would slip. If she slipped high up the plank, there was a significant risk of injury. All of the girls said they were not, or did not recall being, instructed on how to climb safely or how to act as spotters. The respondent was in a position to lead evidence as to what precautions were in place and/or what instructions were given for safe climbing and/or acting as spotters, so as to reduce the risk of the injury from a fall from high up the plank, but did not lead such evidence. The appellant did in fact slip and fall from a height of nearly two metres. She did not hold on to the rope and did nothing else to minimise the impact from such a fall, and was not assisted by any spotters.

47 In those circumstances, I would hold that the primary judge's error in relation to whether the appellant slipped was sufficiently material to vitiate his decision, so that this Court is required to form its own view.

48 I would infer that the appellant did not know what to do if she slipped high on the ramp, because she was not told what to do in those circumstances; and I would also infer there was no properly instructed spotter in place. (This is both because of the evidence of the girls, and because of the lack of evidence from Mr. Hill as to what he said in relation to giving instructions to climbers and spotters.) The risk of injury from a fall from high up the ramp was materially increased because the appellant was not told what to do and because there was no properly instructed spotter in place. The reasonable response to the foreseeable risk of injury from a fall from high up the plank was to give instructions as to what to do in the case of slipping high on the plank and to have a properly instructed spotter in place, and this was not done. The appellant's injury was a realisation of the resulting increased risk. In those circumstances, the respondent failed to properly instruct and supervise the appellant in relation to the climbing of the plank, so that particular (d) of negligence was made out; and the appellant's injury was caused thereby.

49 I would add that, if I were wrong to conclude that the risk could have been reasonably dealt with by proper instructions to climbers and spotters, then I would agree with Giles JA that the reasonable response to the risk would have been to restrict climbing to the log ramp.

50 For those reasons, I would allow the appeal and give judgment in favour of the appellant.

APPEAL ON DAMAGES 51 The appellant suffered a fracture to her left leg. She developed compartment syndrome, and this required procedures which left her with significant scarring on both sides of her left calf.

52 The primary judge made the following findings, which were not challenged on appeal: The Plaintiff fractured the tibia and fibula of her left leg. Her treatment for the injury and subsequent complications is set out succinctly by Dr. Max Ellis, a specialist surgeon in his report dated 24th September 2001: "She was injured while on a school camping expedition on the 9.11.2000. She was climbing a plank and fell and broke her left tibia and fibula. The soft tissues were intact, the skin was not broken. She was taken by ambulance to Campbelltown Hospital and admitted for 11 days. Operative reduction of the fracture by intramedullary nailing was performed on the 11.11.2000. Postoperatively the foot became extremely swollen in the back slab and was cold and dorsiflexion of the ankle produced extreme pain. On the 12.11.2000 medial and lateral fasciotomies were performed. The wounds were partially closed on the 14.11.2000 and again on the 16.11.2000 ".

A more detailed account of her treatment is set out in the report of her treating surgeon Dr Chandra Dave dated 12th September 2001. None of this is contentious and there is no need for me to repeat it here.

Dr Max Ellis was called to give some brief evidence on the part of the Plaintiff. The Defendant's Counsel objected to Dr Ellis giving further evidence in chief outside the four corners of his reports. In the face of these objections I allowed Dr Ellis to give the evidence which mainly concerned: (i) The Plaintiffs knee disability particularly the state of the patella and underlying cartilage; (ii) The fibrosis in the leg muscle consequent upon the compartment syndrome; (iii) The effect of both upon the Plaintiffs ability to run and her athletic ability.

Dr Ellis had taken a somewhat less sanguine view than Dr Bliss of the Plaintiffs disabilities in his earlier reports. His explanation of the muscle fibrosis which is not referred to by Dr Bliss was persuasive and I prefer his opinion on this aspect of the matter. He was also more forthright than Dr Bliss in rejecting the prospect of revision of scarring of the leg and again I prefer his opinion. He considered that the 15% loss of the efficient use of the left lower limb was permanent - again taking a more serious view than Dr Bliss who referred to some "minor disabilities" and "not … much in the way of disability". He thought there would be some disadvantage suffered by the Plaintiff in satisfying the entry test to the Police Force again differing from Dr Bliss who thought her ability to work as a Police Officer unaffected. In his report Dr Ellis had described this ambition as "not significantly jeopardised". In all of these matters I prefer the opinions of Dr Ellis. His opinions do not fall outside the range of opinions already expressed and insofar as this was the case I reject the objections that were made to his evidence. I found the clarification of these issues by Dr Ellis quite useful.

53 He then went on to say: There is no loss of expectation of life in the present case. However, the Plaintiff might expect to experience pain in her leg and knee on exertion or if required to stand for long periods. Her ability to engage in strenuous sport will be lessened. The significant scarring to the inner and outer sides of her lower leg will be permanent. She is not altogether indifferent to the appearance of her leg and expresses a preference for the wearing of jeans to conceal the scars.

Very significantly these injuries occurred early in her life at age fourteen. She had a troubled convalescence with the development of compartment syndrome and the insertion of the intramedullary Nail. I assess the percentage of the most extreme case at 25%.

54 On future economic loss, the primary judge said this: The difficulty here is that at the time of injury the Plaintiff was a school student. She currently works in the food outlet but I am not provided with evidence of her earnings. She says that from time to time she needs to be seated during her work. She hopes to become a Police Officer but may be somewhat disadvantaged - on entry though on the evidence "not significantly" - in that occupation. Reference is made in the evidence to her unsuitability for strenuous activity.

I am not provided with evidence as to the potential earnings of the Plaintiff as a Police Officer. I would expect that in her current occupation in a food outlet she would be earning at the rate of the lower paid persons in the community and that were she to miss out on appointment to the Police Force she would incur a significant financial detriment over her earning years.

However in the absence of more detailed evidence as to earnings and as to the likelihood of her failing the entry test it is only available to me to adopt a nominal figure to reflect some compensation for the interference with her ability to earn income in the future:

55 Mr. Norton submitted that it was an error to refer to a percentage of "the" most extreme case, and submitted that the appropriate range was 30%-33% of a most extreme case. She submitted that the allowance of $20,000.00 of future economic loss for a person just embarking on her working life was inadequate. The appellant's evidence was that her leg was already giving her difficulty at work, and her condition was such that it could prevent her engaging in her chosen career in the Police Force, or at least hamper her significantly in that career.

56 Mr. Harrison submitted that the awards were well within the range open to the primary judge.

57 Non-economic loss is a matter of impression. The appellant's scarring is significant and justified substantial compensation. However, in my opinion an award of 25% of a most extreme case is a reasonable one in the circumstances. But for the scarring, I think a substantially lower award would have been appropriate.

58 The matter of future economic loss is also a matter of impression in the circumstances of this case. However, I think the award of $20,000.00 is manifestly inadequate, for a person just embarking on her working life with an injury that has the potential to have more than a trivial effect on that working life. I would allow $40,000.00 as a buffer.

ORDERS 59 For those reasons, I propose the following orders.

Appeal allowed.
Judgment below set aside.
In lieu thereof, judgment for the appellant in the sum of $80,519.10, to take effect as from 1 June 2005.
Respondent to pay appellant's costs of the proceedings.
Respondent to pay appellant's costs of the appeal, and to have a Suitors' Fund certificate if otherwise eligible.

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.

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Cases Cited (2)