Bidner v State of Queensland
[2001] QDC 41
•16 March 2001
DISTRICT COURT OF QUEENSLAND
CITATION: Bidner v. State of Queensland [2001] QDC 041 PARTIES: SHANE LEE BIDNER (Plaintiff)
v.
THE STATE OF Queensland (Defendant)FILE NO/S: 1896/99 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Brisbane DELIVERED ON: 16 March 2001 DELIVERED AT: Brisbane HEARING DATE: 18, 19, 20, 21, 22 September; 30 October 2000 JUDGE: Shanahan DCJ ORDER: Judgment that the defendant pay the plaintiff the sum of $12,029.60 CATCHWORDS:
CASES CITED:
NEGLIGENCE – Liability of statutory authority – Duty of care. Plaintiff/prisoner awarded damages for injuries received during supervised outdoor activity – Whether prison authorities had exercised reasonable care for prisoner’s safety.
Ellis v. Home Office [1953] 2 All ER 149
Howard v. Jarvis (1958) 98 CLR 177
Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 WLR 987
Richards v. State of Victoria [1969] VR 136
Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431
S.S. Pleiades v. Page [1891] AC 259
Benjamin v. Currie [1958] VR 259
Fookes v. Slaytor [1979] 1 All ER 137
James v. McCarthy [1958] QWN 32COUNSEL: Mr. D. Kelly for the plaintiff
Ms. K. Phillipson for the defendantSOLICITORS: Quinn & Scattini for the plaintiff
The Crown Solicitor for the defendant
The plaintiff has claimed damages for an injury that was caused when, on 25 February 1997, he jumped from a cliff face into water and hurt his tail bone. At that date the plaintiff was a prisoner serving a sentence and participating in an outdoor programme run by the Department of Corrective Services. For the injury and the claimed consequential impairment to physical capacity, the plaintiff has brought an action for damages against the State of Queensland alleging that his injuries were caused by the negligence of the defendant or its agents.
Both liability and quantum are in issue.
The trial was heard before me on 18-22 September and 30 October 2000. Counsel provided written submissions, the last of which, submissions on behalf of the plaintiff by leave in reply to the defendant’s submissions in reply, was received on 22 November 2000.
As the plaintiff was a sentenced prisoner up until 23 December 1997, the plaintiff’s affairs were managed by the Public Trustee. Prior to the commencement of this action, the plaintiff obtained the consent of the Public Trustee to commence.
The basis of the claim of negligence against the defendant is that the defendant was responsible for the administration of correctional centres throughout the State; the defendant was vicariously liable for the acts and omissions of its agents, servants and employees; the defendant was responsible for the safety and welfare of the plaintiff and that the plaintiff was an inmate under the defendant’s care and control.
The plaintiff on the relevant date was participating in a programme involving outdoor activities. On that day the activity was canoeing on Moogera Dam. At one stage the participants were given free time to swim. Several prisoners, including the plaintiff, jumped from the edge of a waterfall into the water beneath. Some prisoners, including the plaintiff, sought permission to move to a higher position. This was granted. At that position (there is a dispute as to the location of that position) the plaintiff claims he asked whether it was safe to jump and was told by one of the defendant’s employees, servants or agents, that it was safe. The plaintiff jumped into the water and claims he broke his tail bone as a result of the impact with the water.
The particulars of the defendant’s alleged negligence from the amended Statement of Claim filed 1 September 2000 (part of Exhibit 1) are:
(a) Failing to take any or any timely or proper or adequate precautions for the safety and health of the plaintiff while the plaintiff was under the defendant’s care and control when a reasonably prudent person with the defendant’s knowledge would have done so;
(b) Exposing the plaintiff to a risk of danger or injury of which the defendant knew or ought to have known when a reasonably prudent person with the defendant’s knowledge would not have done so;
(c) Failing to provide and maintain a safe and proper system of control and/or observation when a reasonably prudent person with the defendant’s knowledge would have done so;
(d) Failing to provide safe premises when a reasonably prudent person with the defendant’s knowledge would have done so;
(e) Failing to provide proper and/or adequate supervision when a reasonably prudent person with the defendant’s knowledge would have done so;
(f) Failing to advise the plaintiff of the dangers of jumping when the defendant knew or ought to have known it was dangerous;
(g) Failing to prevent the plaintiff from jumping;
(h) Bringing the plaintiff to a dangerous location while the plaintiff was under its control;
(i) Failing to prevent the plaintiff from hurting himself;
(j) Allowing or not preventing the plaintiff from jumping from a position on a cliff to water below, such position being approximately 30 feet from the water and such cliff in relation to the water not being vertical when the defendant knew or should have known:
(i) That the plaintiff had had no previous lessons in jumping into water from heights, and in particular;
A: had not been instructed to keep his body in a vertical position when so jumping; and
B: had not had the experience of carrying out several jumps at various heights less than 30 feet before attempting one at 30 feet.
The Plaintiff
The plaintiff was born on 10 February 1976 (report of Dr. White, 1 December 1998, Exhibit 1). He was aged 21 at the relevant date. He completed Year 9 in 1992 (T4). He has a lengthy criminal history dating from about the age of 14 (T14). As a juvenile he had been dealt with for a number of dishonesty type offences. He had been sentenced to periods of detention as well as being placed on probation (T40; 244).
In March 1993, as an adult, he was placed on three years probation and 100 hours community service. He had breached those orders (T244). In October 1993, he was sentenced to three years imprisonment for a number of break and enter and unlawful use of motor vehicle offences. He was released on parole in March 1994 (T244). He committed further offences on parole, and in January 1995 was sentenced to five years imprisonment. In relation to a drug offence committed whilst in custody he was sentenced to four months cumulative (T244). Between January 1995 and May 1996 the plaintiff on four occasions was disciplined for disobedience or refusing to obey orders (T42). In October 1998 the plaintiff was released. He returned to custody on remand on 20 July 1999 in relation to 19 counts of stealing, three counts of attempted stealing, two counts of entering and stealing and a count of possession of house breaking implements. On 9 March 2000 he was sentenced in relation to those offences to 2½ years imprisonment suspended after 225 days (the period of remand custody) for a period of four years (T244-5).
The Maygic Programme
The Maygic Programme (Management Alternatives for Youth Groups in Custody) was designed in 1995 and commenced in late 1996 (T363) with the aim of providing young offenders with an alternative means of rehabilitation and dealing with their problems (T364; 410). The programme was jointly conducted by the Queensland Corrective Services Commission and the Boonah Outlook, a division of the Department of Family Services which specialised in providing adventure based learning for disadvantaged groups (T363).
The plaintiff described the purposes of the Maygic Programme as:
“ … a programme to help young offenders to establish the ability, like, to turn away from crime and live in a different way – to think, like, there is more to life than just crime and to help young people sort their lives out on the right track.” (T6)
The programme involved the participation of suitable young offenders in counselling sessions and involvement in outdoor activities including abseiling, rock climbing, bush walking and canoeing. Also included in the programme were activities where the participants could have fun and make choices for themselves (T371). This was the part of the programme on 25 February 1997 where the participants were allowed to swim and jump from the cliff. Mr. Blair, a resource officer with the Boonah Outlook, described this component:
“ … The programme is run very much on choice, challenge by choice, and so no one is forced or enticed to do it but it was an opportunity if you wanted to do it, the opportunity was there.” (T468)
The programme’s developers assessed sites in South East Queensland for the various activities based on a sequential increase in difficulty (T364-5; 366). One such site evaluated was Moogera Dam and the area known as The Gorge where the swimming and jumping occurred (T371; 441-3).
The programme was conducted from the Palen Creek Correctional Centre and the participants were accommodated in a special area near the correctional centre (“the Maygic Camp”).
In early 1997 the plaintiff was held at the Rockhampton Correctional Centre. He was interviewed and assessed as being a suitable participant for the Maygic programme (T6). He volunteered to go on the second Maygic programme (T25-6). That programme commenced in February 1997. There was a two week “trial run” and then the 10 week programme (T6). If a prisoner did not like the programme after the two weeks he had the option of leaving.
During the first two weeks the prisoners were provided with information about the activities that would be done on the course (T26). On the second Maygic programme there were 12 participants including the plaintiff. Two facilitators from the Boonah Outlook, Mr. Denmar and Mr. Blair, and at least two prison officers supervised the programme. The role of the prison officers was to be responsible for supervision and control of the prisoners (T392).
25 February 1997
On 25 February 1997, the second day of the activity part of the Maygic programme, the participants, facilitators and correctional officers, travelled in troop carriers to Moogera Dam where the activity for the day was canoeing (T393). The prisoners were in Canadian canoes, two in each; the correctional officers, Mr. Gordon and Mr. Poelitz, also shared a canoe. The Outlook facilitators were in single kayaks (T393; 396-7).
Once the canoeing activities were completed, the participants were taken to an area of Moogera Dam known as The Gorge. This was not part of the canoeing activities, but was designed as a break to allow the participants to have free time for fun, and also to allow the facilitators to have an opportunity to observe and assess the participants (T374-5). The activity was swimming and jumping from rocks into the water.
In relation to the jumping, Mr. Denmar said:
“Then in outdoor activities it’s the kind of thing that when you are working with young men they often like to do that. So it’s something we have built into our programmes to enable these guys to have some fun and make some choices for themselves”. (T371)
The decision to jump was a matter for the individual choice of the participants. It was not something they were directed to do (T471).
The Plaintiff’s Account
The plaintiff described being told that they were going over to the “Canyon” so that the participants could have a bit of fun. They could do what they wanted to do. He got out of his canoe and went for a bit of a swim. He saw some people jumping from the cliff face where a waterfall entered the dam (T8). A couple of people had asked if it was alright to jump off the cliff and were told that it was. The plaintiff jumped from the waterfall edge (T8). In cross-examination the plaintiff’s evidence was that he could not recall receiving any instructions on how to jump (T38-9).
The plaintiff then noticed another person climbing to a higher site and he decided to go up to that area. There is a dispute as to the route taken. The plaintiff’s evidence is that he climbed a rope to the left of the waterfall and climbed the rocks on the left of the waterfall to the top of the cliff. He walked across the cliff edge to where he jumped (T8). There is a further dispute as to that position. The plaintiff had marked on a photograph the route he took to the top of the cliff (T8; 198; Photo 3 Exhibit 10). He had marked on a further photograph the route he took at the top of the cliff and with an asterisk as to the position from which he jumped (T198; Photo 4, Exhibit 10).
The plaintiff’s evidence was that when he was at the top of the cliff face he took his life jacket off and asked one of the facilitators who was in a kayak in the water, if it was alright to jump. The facilitator said:
“Oh, hang on a minute, I’ll check the water.”
He checked the water and said:
“Yeah, you’re right to jump.”
The plaintiff threw his life jacket off the cliff to break the water and jumped off the cliff (T9). His evidence was that he had to run and leap out to avoid rocks that were below. He came down on an angle to the water with his feet hitting the water first and then his back. A facilitate came and asked him if he was alright and the plaintiff told him that his feet were tingling. He was told to have a rest for a few minutes. He then swam to a smaller cliff to jump from it. During the swim he had pain in his lower back. He jumped from the smaller cliff and felt pain again (T9-10).
His evidence was that whilst he was in the water he told a facilitator that:
“It felt like someone had stabbed me in the back” T10)
He was told to get in the canoe and he knew something was wrong as he could not sit down. He complained to a facilitator that:
“Something is wrong with me, I’m in that much pain.”
He was told that he could not be helped in any way and would have to paddle back with the other person in his canoe (T11).
Back at the landing site his evidence is that he went to one of the facilitators and said:
“I need to go to hospital, my legs are all – they went like pins and needles”.
He was told they could not go anywhere as they had to load the canoes (T11). He requested to get something done about his injury. He requested not to have to sit down in the back of the transport because of pain. This was refused. The drive back to the Maygic Camp was for 45 minutes on dirt roads (T11-12).
At the Maygic Camp he was asked by a facilitator whether it really hurt. He told them it did. He was told to lie down. The facilitator knew something was wrong and he notified the prison. The plaintiff was given pain killers that night (T12). He was given that medication by one of the facilitators. He could not recall seeing a doctor or nurse that night (T46-7). The next morning he was taken to the Beaudesert Hospital (T12).
The plaintiff has given different accounts of the estimation of the upper height from which he jumped. In the report of Dr. Stanton (Exhibit 7), who saw the plaintiff on 16 December 1997, the plaintiff told him that he had jumped from a rock approximately 25 feet into the water. In the report of Dr. White (part of Exhibit 1; dated 1 December 1998), who saw the plaintiff on 24 November 1998, the plaintiff told him that he jumped off a cliff of about “50 feet”. In the further and better particulars filed on 24 November 1999 (part of Exhibit 1), it is alleged that the height above the water surface was approximately 30 feet. In the report of Dr. Blue (part of Exhibit 1; dated 12 November 1999), who saw the plaintiff on 1 and 11 November 1999, the plaintiff stated that he jumped some 25 feet.
Mr. B.J. McDougall, mechanical engineer, gave evidence for the plaintiff that he had inspected the cliff area of The Gorge. He took the photographs of the area which were tendered as exhibits (Exhibit 10), and a video of the scene (also part of Exhibit 10). The plaintiff had attended on the date of the inspection and indicated various sites to Mr. McDougall. The plaintiff indicated to Mr. McDougall the point from which he jumped. This was marked with a X on photograph number 4. Also drawn on that photograph was the route the plaintiff described that he took to get to the top of the cliff. The distance between the position at the top of the cliff indicated by the plaintiff to the water surface was 15 metres (T198). Inquiries from State Water Projects as to the water level on 25 February 1997 revealed that the water was 1.48 metres higher on that date (T198). Mr. McDougall also measured the water depth below the position on the cliff top. The water fell very quickly in depth. At 3 metres out from the base of the cliff the water was 3.6 metres deep. A further 1.2 metres out, it was 8.1 metres deep (T199). Mr. McDougall estimated the angle of the cliff face at the point indicated by the plaintiff as between 75 and 85 degrees. Mr. McDougall only measured the height from that one point indicated by the plaintiff. On Mr. McDougall’s evidence the distance from that spot to the water level on 25 February 1997 was 13.52 metres.
Other Accounts of the Jump
Much of the plaintiff’s account of the events leading to the jump and afterwards is different from that of other witnesses called in the trial. Mr. S. Hackett, another prisoner participating in the Maygic programme on the relevant day, gave evidence that the participants were told to “go and have some fun” in the Gorge area. They were swimming and jumping off the rocks. He could not recall asking any of the supervisors if it was alright to jump:
“We just started climbing up, you know, jumping off, they didn’t say nothing, you know. So we thought it was all right to do it.” (T302).
On photograph number 2, Mr. Hackett indicated an area from which he thought he jumped. The area was towards the top of the cliff face near a tree (T300). This was near the position indicated by the plaintiff. Mr. Hackett could not remember precisely because of the time that had passed (T300-1). He did not recall seeing the plaintiff jump (T301). He could not recall seeing the plaintiff injured or anyone saying he had been injured (T303). He could not remember the episode very well.
Mr. B. Devon also participated as a prisoner in the Maygic programme. He gave evidence for the plaintiff by phone. He recalled canoeing on the Moogera Dam and he thought that that had occurred a week or two weeks into the programme (T308). He recalled that they were told that the prisoners could swim around the area of The Gorge and that there were places that they could jump off (T308). He thought one side of the cliff was about 5 to 6 metres high and the other side about 8 or so. There had been no instructions received at the camp about jumping (T309). Most of the prisoners climbed to the top of the cliff face and were jumping off it. They jumped off the high cliffs first and then jumped from the cliffs on the other side. The plaintiff jumped a couple of times from the lower height (T313). He saw the plaintiff jump on two occasions from the higher side (T310; 313). He saw people taking running jumps but was unsure if the plaintiff did so (T314). Mr. Devon recalled climbing to the cliff face with the water fall to his left (T311). They jumped from the right hand side of the waterfall facing towards the water (T312). Mr. Devon jumped three times from the high point (T313). Travelling back in the canoes the plaintiff complained about his back and that he did not want to row as the lower part of his back was hurting him.
Mr. R. Poelitz, custodial correctional officer, gave evidence for the defendant. He was one of the officers assigned to the Maygic programme. He described the events at Lake Moogera:
“ … We went up into The Gorge of Lake Moogera. We actually had lunch there and the boys had a swim and were jumping off the rock face in The Gorge … The boys all asked if they could jump off it and they were told by the Outlook people that it was okay. They had checked the water and everything and it was okay that they could do that.” (T320)
Mr. Poelitz marked on a photograph (Exhibit 13) the route the prisoners took up the cliff face and the position from which they jumped. The route was to the right of the waterfall and the position was approximately the site indicated by the plaintiff. Mr. Poelitz was certain that this was the route taken by all the prisoners (T336). He thought about six of the prisoners jumped (T322) but could not specifically recall seeing the plaintiff jump. The prisoners jumped with a bit of a run up and jumped off over the edge.
After the jumping had finished, they paddled the canoes back to where the vehicles were. About three quarters of the way back the plaintiff complained that he had “a sore arse” (T323). At the vehicle site the plaintiff was told to sit down and let the others load the vehicle (T339). Back at the Maygic camp the plaintiff went and lay on his bed and later a correctional officer, Mr. Gordon, took the plaintiff to see the nurse. As a result of the plaintiff’s injury, he could not further participate in the Maygic programme (T327). At the conclusion of the Maygic programme (about 12 weeks later) Mr. Poelitz returned to Palen Creek Prison. He saw the plaintiff playing touch football without any apparent difficulty (T324). Mr. Poelitz was of the view that the Moogera Dam activity occurred on the second day of the programme, that is, within the two week initial assessment phase (T330-1). He recalled that instructions about jumping into the water were given by the Outlook people (T334).
Mr. D. Denmar, resource officer with the Outlook in Boonah, gave evidence for the defendant. In February 1997, he was employed as a senior facilitator for the Maygic programme. He had 18 years experience working in outdoor education activities (T362). The Outlook, an annexe of the Department of Family Services, specialised in the provision of adventure based learning programmes for disadvantaged groups (T363). He was involved in the initial design of the Maygic programme. Part of that development involved risk management (T365). He gave evidence that he applied risk management principles to the activity of jumping into water. That involved assessing that a place had adequate depth (T371). It involved the safe placement of other participants. His evidence was:
“I’d make sure that they had PFD’s (life jackets) on. I would make sure that their access to the particular jumping site was safe and that when the activity was running we’d probably run a swim check of the water which means that the area would be cleared of any canoes or any floating objects and there would be a depth check. So in other words people would dive down to make sure that there was no risk of people hitting anything that might be submerged.” (T371)
Such an analysis was undertaken of The Gorge site. Mr. Denmar had walked into that site when it was dry (T371). He knew the area to be 50 foot deep with no dangerous obstacles coming out from the cliff face. There was safe access to the lower waterfall ledge by a rope. Checks were made that the area was clear. The participants were given instructions on how to land into the water: they needed to ensure that they landed feet first. On at least five earlier occasions the site was used for jumping into water (T372). There had been no previous occasions when anyone had suffered injury from jumping from a cliff.
Mr. Denmar was present on 25 February 1997. It was the second day of the programme (T373). He described the events:
“We paddled into The Gorge approximately mid afternoon and the boys then started to swim initially, simply enjoying the fact that, I think, they had a bit of freedom. There was a, there’s a ledge, approximately eight feet from the water level and they asked could they climb up and have a jump and I said, yes. We then made sure that we did the swim check. We cleared all the canoes, asked people to make sure they had their PFD’s on and gave them some information about how to land into the water, and then myself and Bruce (Blair) positioned ourselves approximately 20 feet, I think, from where they would be landing and sat back to observe.” (T373).
The information given to the prisoners was that they had to land feet first, that they jump slightly out from the cliff face and make sure that they broke the water with their feet (T373). Mr. Denmar had no training or accreditation in diving (T395). He acknowledged that there was always a risk in jumping off cliffs (T405). A couple of the boys asked if they could go up a bit higher, up on to the next ledge. After discussing the matter with Mr. Blair, the participants were told that they could, provided they climbed up on the right hand side of the waterfall and made their way around the back across the creek and directly around to the “launch site”. He gave them specific instructions on where they could jump from. Some boys then jumped but he did not know who they were (T374). He had used the “launch site” prior to that day. He only allowed people to jump from those two specific sites on that side of The Gorge. He could not recall seeing the plaintiff jump or in the water (T375). There had been no complaint by the plaintiff that his feet were tingling. Mr. Denmar recalled that while paddling the canoes back the plaintiff told him that he could not sit properly on his seat and row and that he had “a sore bum” (T374). Mr. Denmar told him to re-arrange his position in the canoe (T402). He did not tell the plaintiff that he could not be helped (T403). He could not recall the plaintiff requesting to ride in the front of the trucks (T404).
Mr. Denmar pointed to an area shown on the video which he described as the “launch site” (T376-7). This was an area some metres away and lower in height from the position indicated by the plaintiff. The participants jumped by taking only one step forward. None of them took a running jump to his knowledge (T378). No one, in his experience, had ever jumped from the position as indicated by the plaintiff. He marked on a copy of a photograph the route taken to the top of the cliff and the “launch site” (Exhibit 14). The route was to the left of the waterfall via a rope to the lower ledge and then up the cliff to the right of the waterfall to the top of the cliff. The launch site was a significant distance from the site indicated by the plaintiff. Mr. Denmar was of the view that a lay person would not be able to climb to the top of the cliff to the left of the waterfall (T406).
Mr. G. Gordon, prison officer, gave evidence for the defendant. On 25 February 1997 he was attached to the Maygic programme. It was the second day of the programme, an orientation day (T410). He recalled the boys jumping from the cliff into the water. On copies of the photographs he marked the route taken up the cliff by the boys and the two jump spots (Exhibit 16). The route and the higher jump site were the same as recalled by Mr. Denmar. Mr. Gordon could recall no one jumping from the higher position indicated by the plaintiff (T427). Mr. Gordon described how the swimming and jumping occurred:
“When we arrived in The Gorge they were given permission to get out of the canoes to swim and enjoy the surroundings. Prior to that happening I am fairly sure the Outlook people checked the area to make sure it was safe and had no obstructions and we paddled right into The Gorge and checked it and made sure it was right. They were having a swim. They’d been in and out of the bowl and climbed up on to the bowl and just skylarking and having a bit of fun, yeah, and then a group of them climbed to the top and asked if they could have permission to jump and that was given to them and they proceeded to jump off.” (T412)
The prisoners asked whether it was safe to jump off and were told it was (T426).
He saw the plaintiff jump (T412). He described it:
“It appeared to be normal, he landed feet first, he came to the surface, he didn’t appear to be in any distress or any problems and he swam around and climbed back into the bowl.”
He could not recall seeing the plaintiff jump again (T413). While rowing the canoes back across the lake, there appeared to be a problem with the plaintiff in the canoe. He changed his position to a kneeling one and continued to paddle across. He could not recall the plaintiff complaining in the water or that he complained that his feet were tingling (T428). Nor could he recall the plaintiff requesting to ride in the front of the vehicles (T430). Back at the Maygic camp the plaintiff complained he had a sore lower back and Mr. Gordon took him to see the jail nurse. She gave him some medication (T414). The next day Mr. Gordon took the plaintiff to the Beaudesert Hospital.
On a prior occasion Mr Gordon, while a participant in an outdoor training programme, jumped from the higher spot that he marked in Exhibit 16 (T421). This occurred in November or December 1996. He took the same route to the top of the cliffs that he described earlier (T422). At the time of his jump he was aged 37 and weighed 120 kilos. He described himself as “decidedly unfit”. He experienced “a fairly tingling sensation” in his feet when he hit the water and likened it to jumping from the 10 metre tower at the Valley Pool.
Mr. B. Blair, resource officer at the Outlook, gave evidence on behalf of the defendant. He had numerous qualifications in outdoor activities: whitewater instructor, canoe, kayak and sea kayak instruction, abseiling and climbing, high adventure mediums (ropes) (T437). He was also involved as a trainer in adventure based learning and risk management in that context (T439). He had undertaken risk management assessment of The Gorge area (T441). He outlined that:
“When the young people arrive at The Gorge I usually ask them to keep their shoes on cause they want to take their shoes off and they want to take their life jackets off. If they want to jump we ask that they keep their life jackets on and their shoes on. In regard to jumping we ask that they jump feet first into the water and that’s all we ask. We ask them to jump in a straight sort of manner into the water.
And what about with respect to the site itself?-- And to the site, like, we say there’s certain areas that they can jump from and we outline where those areas are and I usually go up and jump myself.” (T443)
He was present at the site on 25 February 1997. He recalled giving the prisoners “the risk management stuff”:
“I asked them to again to wear a life jacket, to wear shoes and to jump feet first. They wanted to – the first place they climbed up was into – there’s a bowl and a number of the young men were jumping from that spot into the water. Some of the young men wanted to go higher. I paddled over to Dave and John and we talked about whether they could do that and we agreed they could and we asked them to go up the right hand side of the bowl, walk around the back and then jump one at a time. The young men wanted to go higher but we said that was the point that they should jump from. So – and then they jumped into the water one at a time and everyone, sort of, clapped and gave them big, you know, sort of like it was a high point for them. And they jumped into the water and I – generally, I was in a kayak and I generally just went over to each of the young men as they jumped just to see that everything was fine. I was, sort of, like in the vicinity of where they were jumping, yeah.” (T444)
On copies of the photographs (Exhibit 17) Mr. Blair marked the route taken by the prisoners to the top of the cliff and the higher site. The route was the same as noted by Mr. Denmar and Mr. Gordon. The higher site was slightly to the left of that noted by Mr. Denmar and Mr. Gordon but some metres away from the area indicated by the plaintiff. No one had accessed the higher area by the route indicated by the plaintiff and no one had jumped from the area indicated by the plaintiff (T446). Some of the participants wanted to move to a higher area but that was refused (T448).
Mr. Blair watched all the participants who jumped that day (T447). After each jump he went over to each of the men to see that everything was fine. He recalled probably five persons jumping from the higher site (T444). He could not recall anyone removing the life jacket and throwing it down first. If it had occurred, then that person would not have been allowed to jump (T486). He could not recall anyone complaining of specific pain (T448-9). It was not unusual after a jump for a person to complain of a “bit of a slap” to the hands, buttocks or feet (T472). The plaintiff may have complained to him but he could not recall. He could not remember anyone saying it felt as though he had been stabbed in the back and felt, if it had been said, that he would have remembered it.
Mr. Blair was aware that there was a risk in jumping from that height (T468). He said:
“You were aware, weren’t you, that there is risk in jumping from that height?-- Yes.
Into water?-- Minimal risks, yeah. I mean, as long as you check the area, you’ve got the right gear on, but in any activity, adventure based activity, there is a risk involved, correct, yes.” (T468)
And also:
“Now, on reflection, and looking at that, it’s the case, isn’t it that, to prevent this sort of injury, you could have just let them jump off a lower jump?-- Again I don’t think you are going to get an injury from jumping from there. You know, like, it’s the sort of jump I would have done as a young person. So it’s – again it’s minimising risk and that is what it is about.
Mr. Blair, if you accept that an injury did occur from that jump, then the way that you have could have prevented that jump reduced the risk of that injury was to have them jump off lower jumps, wasn’t it?-- There’s a less – there’s a minimal – the risk is minimised further from a lower jump, yes.” (T484)
He was asked whether there had been any individual assessment of the participants. He said:
“Each person was interviewed prior to entering – entering the programme and their fitness level was, like – we had to assess their – we asked them if they had any – any previous injuries and stuff like that and that – we told them that there would be, like, some vigorous exercise and stuff involved, so there was – that sort of personal assessment was there, yes.
And on the day you didn’t undertake any assessment of the person’s ability to jump into the water from that height before you let them jump?—Again, it’s challenge by choice. That’s up to the – yeah, person’s own choice to do that.
So is that – that’s a yes, you didn’t undertake any assessment for each individual?-- No.” (T471)
After the incident the Outlook viewed the site and decided not to use the higher position for any further jumping (T483). Mr. Blair had sought no advice from experts as to the dangers in jumping from heights (T469).
The complaint by the plaintiff in the water after the jump was not recalled by Mr. Denmar, Mr. Poelitz, Mr. Gordon or Mr. Blair. Similarly, none of the other witnesses could recall any of the participants accessing the higher jump site by a route that went to the left of the waterfall.
Expert Evidence Concerning Diving and Jumping
Mr. J. Sanders, structural engineer, gave evidence for the plaintiff. He was called as an expert in relation to diving. He provided a report (Exhibit 9). For 20 y ears he had been a member of the technical diving committee of the International Swimming Federation (FINA). He had experience as an administrator in swimming, diving, water polo and synchronised swimming up to Olympic level.
He was of the opinion that there was nothing dangerous about jumping from the rock ledge (the lower site) from a height of 2-3 metres, if the water had been investigated to make sure there was no underwater hazards (T130). Accepting the plaintiff’s account as to the site of the higher jump, Mr. Sanders accepted that the jump occurred from a position 13.5 metres above water level. That came from the report of Mr. McDowell. From that position there was shallow water to about 1.2 metres from the bottom of the cliff. This presented a danger. The water depth out from that shelf was more than ample for safety. Mr. Sanders’ major concern was as to the height of the cliff in regard to inexperienced people jumping. If a jumper was to lose balance and move from the vertical during any jumps above 5-6 metres, consequential impact with the water could either hurt or do damage (or both). The 10 metre platform is the highest level from which competitive diving is performed and training to that height occurs in graduated stages. As the height increases, any loss of balance gets worse during the lower part of the jump. Mr. Sanders was of the opinion that beginners should not jump from a height greater than 5 metres without any instruction (T131). His view was that by allowing beginners to jump directly from a 13.5 metre high cliff, there was a high possibility of an accident occurring.
In Mr. Sanders’ view, studies had demonstrated that the potential for injury is significantly related to body alignment when hitting the water surface and that the speed of hitting the water is directly proportional to the square of the height above the water. There was no difference in impact in whether the surface of the water was broken or not (T133). In cross-examination Mr. Sanders was of the view that if the jumping point was lower by a metre and a half (that is, 12-12.5 metres), his evidence would fundamentally be about the same (T136).
Mr. G. Hall, psychologist, gave evidence for the plaintiff. He had been coaching diving since 1976 and had achieved Level 3 coaching which was the international level. He had been the Queensland state coach and the Australian national coach. He himself had been a diver from 1970-1976. In training novice divers he started them from a low level and gradually increased the height. The higher the dive the more chance there was for something to go wrong (T282). With a jump there was less ability to change angle in the air. Because a jump required moving out and the introduction of a horizontal motion, there was less control over the centre of balance. A running jump provided more control (T286). To jump safely from heights in excess of 5 metres was a matter of very structured and controlled experience. One wrongful impact from 10 metres could cause chronic damage (T288-9). Even from a jump of 8 metres a person would hit the water at about 55 kph which was enough to do damage. From lower heights the danger was still there but to slightly lesser degrees (T291).
Findings of Fact
I found the plaintiff’s recall of detail as less than satisfactory. For example, his evidence as to his employment history was lacking in detail and differed substantially from the Statement of Loss and Damage (T87-99). His evidence as to the detail of the jump from the higher position differed from the pleadings. For example, the pleadings indicated that he asked the instructors whether it was safe to jump (amended Statement of Claim) whereas his evidence was that he asked “Is it alright to jump” (T9). Also, his evidence at the trial was the first time he alleged that he had taken a running jump. His evidence concerning medical treatment back at Palen Creek Prison is not consistent with other evidence. Mr. Gordon and Nurse Buchanan (T351) both gave evidence that the plaintiff was seen by the nurse and received medication on the night of 25 February 1997. The plaintiff could not recall seeing any medical personnel that night (T46-7). His responses to questions about seeking medication in jail were hesitant and, in my view, lacked reliability. My overall impression of the plaintiff was that he had an inability to remember detail. For example, his estimates as to the distance jumped from the higher site ranged from 30 feet to 50 feet. He conceded that he did not have a good memory (T217).
The plaintiff’s evidence of how he accessed the higher site is in stark contrast to the evidence of all other witnesses who were present that day. All witnesses, including Mr. Devon, recalled that the prisoners climbed to the top of the cliff by a route to the right of the waterfall. The plaintiff’s account was that the route was to the left of the waterfall. According to Mr. Denmar, a lay person could not access the top of the cliff on the left hand side of the waterfall (T406). I accept the evidence of Mr. Denmar, Mr. Blair and Mr. Gordon as to the route taken by the prisoners to the top of the cliffs.
The lack of reliability of the plaintiff impacts upon his evidence as to the actual position of the higher site. Although supported by the evidence of Mr. Poelitz and Mr. Devon, I am not satisfied that this was the position of the higher site. I found the evidence of Mr. Denmar and Mr. Blair particularly significant in this respect. Both were particular familiar with the area because of their involvement with the Outlook programmes. Both impressed me as responsible and professional. Their evidence was consistent and forthright. The evidence of Mr. Gordon as to the higher site was also relevant as he had himself jumped from the same position on an earlier occasion. Considering all of the evidence, I find that the plaintiff jumped from around the positions indicated in Exhibits 14, 16 and 17. This was not the same position as indicated by the plaintiff in his evidence, and not the position from which Mr. McDougall measured the height above the water. It is clear however that the height of the higher position was still in excess of 10 metres. From the photographs and the evidence, it was probably in the order of 11.5 to 12 metres above water level.
I also find that the plaintiff did not complain to one of the supervisors or the Outlook staff immediately after the jump or whilst he was in the water, that he had felt a pain “like someone had stabbed me in the back”. Neither Mr. Denmar nor Mr. Blair recalled such a memorable statement. Neither Mr. Denmar nor Mr. Blair specifically recalled seeing the plaintiff jump, although Mr. Blair conceded one of the prisoners may have said something about feet tingling. Mr. Gordon saw the plaintiff jump and there was nothing unusual about it. From their evidence I am satisfied that the first complaint of pain made by the plaintiff was during the return trip by canoe.
I am further satisfied from the evidence of Mr. Denmar and Mr. Blair that instructions were given to the prisoners on how to jump. Those instructions were that they jumped feet first, stayed vertical and wore their life jackets and shoes.
I also reject the plaintiff’s contention that he was treated with disregard by the supervisors when he complained of pain. I accept the evidence of Mr. Poelitz, Mr. Gordon, Mr. Denmar and Mr. Blair that the plaintiff was treated appropriately when he complained of pain. He was taken by Mr. Gordon to the nurse on the return to Palen Creek and was taken to hospital the next day.
I find from the evidence of Mr. Poelitz (T320), Mr. Denmar (T373), Mr. Gordon (T426) and Mr. Blair (T444) that the prisoners were told it was alright for them to jump from the higher site. Mr. Gordon’s evidence is in fact that they were told it was safe. I am satisfied that in some terms the plaintiff heard from the supervisors that it was alright or safe for the participants to jump from the higher site. That site was approximately 11.5-12 metres above the water level.
A submission has been made that I should discount the evidence of the prison officers and the Outlook personnel on the basis that there is some evidence of collusion between them and perhaps the defendant’s legal representatives. The basis for that submission was an answer given by Mr. Blair that he was aware of a medical opinion that the specific injury to the plaintiff may have been “from a past incident” which had been aggravated (T481). Mr. Blair was not sure where he had heard this but thought it might have been from the lawyers (T482) or from Mr. Gordon on the return from the doctor (T483). In fact, the doctor from Beaudesert Hospital, Dr. Peachy, on the day after the incident, diagnosed an acute fracture of the coccyx (T59). A later medical opinion from Dr. Blue was that there had been a pre-existing condition. I allowed Mr. Gordon to be recalled and he could not remember any conversation with Mr. Blair about the issue (T510). Mr. Blair obviously became aware of the suggestion of a previous injury at some stage. There is no evidence that any of the lawyers involved in the matter disclosed it to him and I reject the contention. Others of the witnesses were cross-examined as to any collusion or discussion between themselves about their evidence. Mr. Gordon was adamant that there had been no such discussion (T428). I do not accept that there has been any collusion between these witnesses. As noted above, I was most impressed with the evidence of Mr. Denmar and Mr. Blair. The evidence of Mr. Poelitz as to a different higher launch site militates against any such collusion. Mr. Denmar, Mr. Blair and Mr. Gordon were all familiar with The Gorge site from previous experience, and I have no hesitation in accepting their evidence.
The Duty of Care to Prisoners
There is a common law duty owed by prison authorities to take reasonable care of a prisoner’s safety (Ellis v. Home Office [1953] 2 All ER 149). In Howard v. Jarvis (1958) 98 CLR 177, the High Court held that a police officer owed a common law duty of care to exercise reasonable care of prisoners safety while a prisoner was in custody. In Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 WLR 987, Farquharson LJ at 996 described the scope of the duty of care:
“When one person is in the lawful custody of another, whether that be voluntarily, as is usually the case in a hospital, or involuntarily, as when a person is detained by the police or by prison authorities … there is a duty upon the person having custody of another to take all reasonable steps to avoid acts or omissions which he could reasonably foresee would be likely to harm the person for whom he is responsible.”
That duty is not absolute. There is no strict liability on the part of prison authorities for any injuries sustained by a prisoner merely because the person was under the care and control of the prison authority at the time of sustaining injury (Richards v. State of Victoria [1969] VR 136). The duty is to take reasonable care and what is reasonable must be judged in light of all the circumstances (Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431).
Such undertakings as the Maygic programme have obvious benefits for both the prisoners themselves and the community. They provide training in outdoor activities and impact upon an individual’s self respect. They have obvious rehabilitative impacts. Any outdoor activity has obvious risks. The obligation of a prison authority conducting such programmes is to take reasonable care to minimise those risks and not to undertake activities where the risk of injury is substantial in the circumstances. My judgment in this matter should not impact on the provision of such programmes.
The participants in the Maygic programme, including the plaintiff, were volunteers. The defendant’s agents in the persons of the Outlook staff carried out an assessment of The Gorge site for swimming and jumping activities. In relation to the two “launch sites”, they were safely accessible and provided almost vertical drops to deep water. Checks of the water were made to ensure the water was clear of other participants and any submerged objects. The participants were not directed to jump from the cliff sites, but made choices of their own to do so. They did, however, seek permission of the supervisors to jump from the higher site, and this was given in terms that indicated that it was safe.
It is clear from the evidence of Mr. Sanders and Mr. Hall that jumping from the lower height was safe in the circumstances. However, from their evidence, it is also clear that for inexperienced persons to jump from a height of 11.5-12 metres is inherently dangerous. This is simply because of the height involved which obviously is a factor in the speed of impact. Any deviation from the vertical carries a risk of injury. The fact that other jumps occurred in the past without injury does not, in my view, detract from what should have been obvious: a jump by an inexperienced person from such a height carried an appreciable risk of injury.
In my view, considering the nature of the Maygic programme, it would have been impractical to provide the staged training and diving and jumping as recommended by Mr. Sanders and Mr. Hall. The participants should simply not have been permitted to jump from the higher position. It is important to note that the participants sought permission to jump from the supervisors and were told it was either “alright”, “okay” or “safe”. That permission came from persons who would have been seen by the participants as having the requisite knowledge and experience to properly assess the situation. There is no support for the defendant’s submission that because of the plaintiff’s criminal history and discipline history within the prison system that he would have ignored a denial of permission if it had been made. Certainly this was not the plaintiff’s evidence and the expectation of the prison officers present was that they would be obeyed. In any event, actual permission was given.
It is my view that the agents of the defendant did not take reasonable care in the circumstances. I am satisfied that the plaintiff suffered the injury as a result of the jump from the higher position. His complaints on the return canoe trip indicate that he had suffered an injury by that time. In my view, it is unlikely that jumps from lower heights caused the injury.
Contributory Negligence
As noted above, the plaintiff made an individual choice to jump from the higher position. The defendant has not pleaded that the plaintiff contributed to his injury by making the decision to jump. It has been pleaded (amended defence, 12 September 2000) that the plaintiff contributed to the injury by failing to follow the instructions of the defendant’s agents to keep his body in a vertical position when jumping. Considering the evidence of the experts that it would be extremely difficult for an inexperienced jumper to remain in a vertical alignment when jumping from a cliff face, I reject that contention.
It has also been pleaded that the plaintiff contributed to or aggravated his injury by again jumping from a lower height after the higher jump and by playing sport in the prison within weeks of the injury. In my view, this is not pleading contributory negligence in relation to the actual higher jump itself.
Rule 150(1)(e) of the Uniform Civil Procedure Rules requires that contributory negligence must be specifically pleaded. The common law position is the same (S.S. Peliedes v. Page [1891] AC 259; Benjamin v. Currie [1958] VR 259; Fookes v. Slaytor [1979] 1 All ER 137). The decision of Wanstall J in James v. McCarthy [1958] QWN 32 must now be read in the light of those authorities and r.150. As noted above, contributory negligence in relation to the decision of the plaintiff to jump from the higher position has not been pleaded.
Damages
The plaintiff has claimed general damages, special damages, medical expenses, travel expenses, gratuitous assistance, past economic loss, reduced earning capacity and future gratuitous assistance. It is submitted on behalf of the plaintiff that the total damages would fall within a range of $196,145 - $216,569.
Medical Evidence
It is pleaded in the amended Statement of Claim that the plaintiff broke his tail bone as a result of the impact with the water and that he now has a permanent impairment.
On 26 February 1997 the plaintiff was taken to Beaudesert Hospital and was seen by Dr. Peachy. Dr. Peachy was a general practitioner and in February 1997 was a senior medical officer at Beaudesert Hospital. The plaintiff complained of a very painful backside (T59) and an x-ray was performed. The hospital notes indicated a fractured coccyx. Dr. Peachy did not note any sclerosis on that x-ray and in view of the instructions he gave as to the plaintiff not sitting or walking long distances, Dr. Peachy was of the view that it was an acute injury (T60). Dr. Peachy recommended that the plaintiff be limited to necessary walking and no strenuous activities. Any strenuous activity would interrupt the healing process (T61). Dr. Peachy would not have recommended running with a fractured coccyx. Playing touch football within a short time with such an injury would have aggravated it (T62).
Dr. M. D. Stanton, general practitioner, examined the plaintiff on 16 December 1997. He provided two reports (Exhibit 7). The plaintiff complained of persistent severe pain when sitting. History, examination and a subsequent x-ray confirmed a badly healed fracture of the tail bone. Physical examination revealed some generalised muscle tenderness in the lower lumbar region. There was undue prominence and exquisite tenderness of the sacrum and coccyx. Rectal examination revealed acute angulation of the coccyx bone with exquisite tenderness of this bone through the rectum. Dr. Stanton diagnosed a fractured coccyx with malunion and chronic coccydynia. Coccydynia is a syndrome which is a complex of pain symptoms (T75). Those conditions had combined to produce significant symptoms and disabilities. Dr. Stanton was of the view that the plaintiff exhibited a disability of some 15% of the whole person. Dr. Stanton was of the view that overuse of a fracture was likely to lead to some complications (T72). He would have advised against sporting activities within a short space of time after sustaining a fractured coccyx (T73). The doctor was of the view that one would expect some longer term complications such as failure to heal from such activities (T75).
Dr. D. N. White, orthopaedic surgeon, gave evidence for the plaintiff. The plaintiff was examined by him on 24 November 1998 and 4 August 2000. Dr. White provided two reports (part of Exhibit 1). Dr. White obtained a history from the plaintiff and examined him. The doctor examined x-rays performed on 16 December 1997 which showed sharp angulation between the sacrum and the coccyx. There was also some deformity of the terminal segment of the sacrum which appeared to be angulated forward, possibly the consequence of a healed fracture. That was a fracture of the terminal segment of the sacrum rather than of the coccyx (T185). On 24 November 1998, the plaintiff’s condition had improved to a degree, although he still reported ongoing problems with significant physical activities, bending and sitting for any length of time. Dr. White regarded the plaintiff’s condition, for all practical purposes as stable and stationery and considered that he had suffered a 10% whole person impairment. Dr. White regarded the plaintiff as likely to be permanently unfit for work involving heavy physical labour or work required sitting for lengthy periods on a hard surface.
On the examination of 4 August 2000, Dr. White agreed with the conclusion of a CT scan of 26 July 2000, which demonstrated anterior angulation of the coccyx, that the “misalignment of the sacrum and coccyx” was long standing. Dr. White was again of the view that the plaintiff’s whole body impairment as a consequence of the complaints in relation to his cervical spine, lower back and sacro-coccygeal area was of the order of 10%. Dr. White had not been provided with the x-rays of 26 February 1997 (T187). Examination did not require a rectal examination (T181). The CT scan of 26 July 2000 did not comment on the presence of sclerosis. This was an area of the body which was difficult to visualise with great clarity on ordinary x-rays (T180) and if there had been pronounced sclerosis present, Dr. White would have recorded it (T181). Depending on the quality of the x-rays, it was possible for sclerosis to be seen in an earlier x-ray and not seen in a later lower quality one (T186). Dr. White did not diagnose coccydynia (T188).
Dr. T. Blue, orthopaedic surgeon, gave evidence on behalf of the defendant. He examined the plaintiff on 1 November 1999, 11 November 1999 and 26 July 2000. X-rays were taken on 1 November 1999 and a CT scan performed on 26 July 2000. On examination in November 1999, Dr. Blue noted that the plaintiff had a full range of spinal movement with the complaint of lower lumbar and sacral pain at the extremes of all movements. There was wide spread tenderness from the L4 region of his spinal column down into his lower sacrum. There was no mark of localised tenderness and surprisingly in Dr. Blue’s opinion, no coccygial tenderness. The plaintiff’s coccyx was not prominent and his lower sacrum was readily palpable but not excessively so and was not tender. X-rays of the plaintiff’s sacro-coccygeal region taken in June 1997 reported a sharp angle but no obvious fracture. The x-rays of 26 February 1997 confirmed the sharp angulation but some sclerosis was present in the plaintiff’s last sacral segment which suggested he may well have fractured his lower sacrum at some time prior to 25 February 1997. Dr. Blue was of the opinion that the plaintiff may have sustained a fracture of his distal sacrum in the jump from the higher position. Dr. Blue had no doubt however that the plaintiff had made a full and complete recovery from the injury and that he presented with no ongoing sacro-coccygeal or lumbar disability whatsoever. He also had not developed coccydynia. The fracture, if it occurred, had soundly united and the plaintiff displayed no discomfort in sitting for at least 20 minutes during the examination on 1 November 1999.
In the examination of 26 July 2000, the plaintiff represented without spinal deformity and displayed normal spinal mobility. Dr. Blue was of the view that there was some overpresentation of symptoms and disability. One Wardell sign was present which Dr. Blue agreed was insignificant (T163). The plaintiff’s account of his symptoms was also not consistent (report 27 July 2000); part of Exhibit 1). Dr. Blue was again of the opinion that the plaintiff suffered no ongoing disability. The sclerosis present in the x-rays of 26 February 1997 indicated a fracture some 12-18 months previously (T154). There was no evidence of coccydynia (T156). Dr. Blue had treated some 80-100 people with coccydynia (T158). The x-rays of 26 February 1997 indicated no fracture of the coccyx (T161). There may have been a fracture to the sacrum. Dr. Blue was also of the view that it was unnecessary to perform a rectal examination to determine the presence of coccydynia.
The plaintiff gave evidence that after the injury it hurt to walk around for a period of about a month (T49). The plaintiff thought that about a month and a half after the injury he signed a document indicating that he wanted to play sport (T50). The document was in fact dated 5 March 1997 (Exhibit 6). It indicated that he had been given medical advice about his condition and the risks involved and took full responsibility for playing sport. He thought he had played touch football three to four weeks after signing that document (T51). He played some 20 minutes and stopped (T13). He also played indoor cricket about “a month and a bit” after the injury (T53). Some 12 weeks after the incident at The Gorge, Mr. Poelitz saw the plaintiff playing touch football (T324-5). The plaintiff did not see the doctor or nursing staff at the prison from July 1997 until June 1998 (T56), although it should be noted he was in receipt of some pain medication during this period of time.
As noted above, I found the plaintiff to be an unimpressive witness. His various accounts of the detail of the jump itself are inconsistent with each other. I have not accepted his account of various details surrounding the actual event, and have preferred the evidence of other witnesses. In particular, I am of the view that the plaintiff’s recount of his own work history displayed a lack of candour (T48; 85-104). The same comments apply to the detail of medication obtained as disclosed in the Statement of Loss and Damage (T81-82). In my view, any opinion based on a history given by the plaintiff would be suspect.
I accept that the plaintiff was injured in the jump from the higher position on 25 February 1997. That injury was probably a fracture of the lower sacrum as reported by Drs. White and Blue, or, perhaps more likely, the aggravation of a pre-existing injury. In that regard, I prefer the evidence of Dr. Blue who had access to the x-rays performed on 26 February 1997 rather than Dr. White who did not. In the light of the opinions of Dr. White and Dr. Blue, I do not accept a diagnosis of Dr. Peachy that the plaintiff suffered a broken coccyx. I have similar difficulty in accepting the evidence of Dr. Stanton that there was a fracture of the coccyx and coccydynia. Both Dr. White and Dr. Blue, who are orthopaedic surgeons, did not diagnose coccydynia.
The injury obviously caused some pain and suffering to the plaintiff over the following period of time, however, he sufficiently recovered to play both touch football and indoor cricket against medical advice. The medical evidence is that those activities may have impacted upon his recovery. Considering my doubts as to the reliability of the plaintiff, I prefer the opinion of Dr. Blue as to the total recovery of the plaintiff by November 1999, rather than that of Dr. White who has relied at least in part, on the history provided by the plaintiff.
In my view, the plaintiff is entitled to an award for pain and suffering for the injury he suffered. Considering the extent of that pain and suffering which could only have existed between February 1997 and November 1999, and the possibility that the period of recovery was extended by the plaintiff’s own activities in playing sport against medical advice, it is my view that damages should be assessed at $10,000.
With respect to any future economic loss, in view of the plaintiff’s complete recovery, I am not satisfied that any award should be made. With respect to any past economic loss, it should be noted that the plaintiff was in custody after the injury to October 1998. He returned to custody in July 1999. In my view, the plaintiff has shown very limited pre-accident earning capacity and also has not displayed any real attempts at obtaining or maintaining employment (T88-104). The plaintiff’s reasons for leaving many of the positions he held after very short periods of time were unconvincing. He has displayed very low motivation in seeking or holding employment or in following up training opportunities (T104-110). I am thus not satisfied that any lack of earnings in the period October 1998 – July 1999 was in any way attributable to the injury. I decline to make any award for past economic loss.
The special damages in relation to the Health Insurance Commission should be allowed. There should be a limited allowance for pharmaceutical as I am of the view that the plaintiff had fully recovered by November 1999. The travel expenses to visit the various doctors should be allowed. Medical expenses should be allowed in a global figure of $250 as per the plaintiff’s written submissions. There should be a minimal award for past gratuitous assistance covering the period October 1998 – November 1999, but none for future care.
I am thus of the view that the plaintiff should be awarded the following damages:
Pain, suffering and loss of amenities $10,000.00
Interest (at 2% per annum) $ 800.00
Special damages $ 608.00
HIC Refund $109
Pharmaceutical $200
Medical expenses $250
Travel expenses $ 49
Interest on special damages (at 5% per annum) $ 121.60
Past gratuitous care $ 500.00
TOTAL$12,029.60
There will therefore be judgment that the defendant pay to the plaintiff the sum of $12,029.60. I will hear submissions in relation to costs.
0