Cecilia Si Chen v Kmart Australia Limited

[2022] NSWDC 519

District Court

New South Wales

Medium Neutral Citation:

Cecilia Si Chen v KMART AUSTRALIA LIMITED [2022] NSWDC 519

Hearing dates:

24 October 2022
25 October 2022
28 October 2022

Date of orders:

28 October 2022

Decision date:

28 October 2022

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

1.   Judgment for the plaintiff in the sum of $59,929.36.

2.   Defendant to pay the plaintiff’s costs of the proceedings.

Catchwords:

CIVIL – personal injury – assessment only – right eye scarring to child

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 16, 13

Cases Cited:

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152

Sretenovic v Reed [2009] NSWCA 280

Currie v Azouri (1998) 28 MVR 406

Watts v Rake (1960) 108 CLR 159; [1960] HCA 58

Category:

Principal judgment

Parties:

Plaintiff: Cecilia Si Chen
Defendant: KMART AUSTRALIA LIMITED

Representation:

Counsel:
Ms Welsh, Counsel for the Plaintiff
Mr Walsh, Counsel for the Defendant

Solicitors:
Brydens Lawyers Pty Limited, Solicitors for the Plaintiff
Lander & Rogers, Solicitors for the Defendant

File Number(s):

2021/00266191

Judgment

1. The plaintiff is an eight-year-old female child who sues for personal injury damages consequent of an injury to her right upper eyelid suffered on 8 January 2020. She was then six years of age. She sues by her tutor, Jill Huang, who is her mother.

2. The defendant has admitted breach of duty of care. The hearing proceeded for assessment only.

3. The injury occurred when the plaintiff was walking in the children’s section of Kmart at Chatswood, and her right eye came into contact with the metal rail on which children’s apparel was hung.

4. After being accompanied by her mother in the ambulance, the plaintiff underwent surgery at Westmead Children’s Hospital, the same day.

LAY EVIDENCE

5. The plaintiff did not give evidence. The plaintiff’s mother, Ms Hounang, was the primary source of evidence of the facts in the plaintiff’s case. The plaintiff is presently in year 3 Kincoppal - Rose Bay School. When injured, on January 20 she was about to commence year one, having been at the school since the preschool stage. The plaintiff then enjoyed ballet, basketball, gymnastics and swimming.

6. Whilst accompanying her daughter in the ambulance, the mother saw her eye to be covered and that the plaintiff was very scared and quiet. Following surgery that evening, the plaintiff was discharged from Westmead Hospital the next day. On 15 June 2020 the plaintiff underwent a second operation, for removal of the stent from her eye. Between the two operations, the plaintiff was at home in pain and taking painkillers. At least initially, the plaintiff’s eye was covered and bleeding and there was lots of yellow discharge. The plaintiff complained of her pain but her mother described her as “quiet”.

7. The plaintiff did not return to school immediately at the start of the year 1 school term. She was delayed several days whilst her mother informed the teachers and the school of her injury and whilst the plaintiff protested that she did not want to go to school. The teachers prepared the other students for her changed appearance. Her mother’s evidence (at T22.45) was:

“And then they need to do some preparation then I will encourage Cecilia to go to school. Cecilia was very afraid and scared of facing her school teachers and classmates because she thinks she looks horrible, and she-probably she cannot be prepared very strong to face some questions or sort of.”

8. The plaintiff’s eye remained covered when she recommenced her schooling.

9. Prior to her injury, the plaintiff slept with her mother and her parents planned for her to start sleeping independently from when she turned 6 years of age. They have been unable to achieve her independent sleeping. At her present age of 8 ½ years the plaintiff continues to sleep with her mother. The plaintiff might laugh and then cry before sleep. When her mother asks why, sometimes the plaintiff does not give a reason and other times says that she is worried that she will get a disease or her mother might get a disease. She worries that her mother might pass away early. She worries that she will get lost in the dark and not be able to find her mother. The plaintiff, gives all sorts of reasons for why she might cry before going to sleep. Sometimes the plaintiff gives a reason of a stressor from her day or from school and needs to communicate with her mother in order to settle for sleep. Her mother said: “I think before sleep every day, like a routine almost, she happy and cry, happy and cry, then she feel, oh, good, then sleep.”: T22.25.

10. When this evidence was directed to Dr Lee, psychiatrist, for his comment, he said that not sleeping and worrying about the health of her mother are classic features of anxiety for a child. He said that this evidence of unwillingness to sleep alone from age 6, as was planned, was evidence that her anxiety had influenced and affected her normal trajectory of development.

11. An issue of contention is the extent to which the plaintiff suffered stomach discomfort prior to the injury because she complained of stomach pain both before and after injury. The plaintiff and her father, but not her mother, suffer helio bacter pyloris for which, the family has been advised that the plaintiff is too young to receive best treatment. Prior to the injury all members of the family underwent a test for this condition. Her mother’s evidence, on which she was not shaken during cross examination, was that prior to the injury the plaintiff did not mention for a long-time stomach pain but that since the accident she has mentioned it more often. The defendant took me to GP clinical notes and breath test results, showing that the plaintiff tested positive and on one occasion in 2021 negative, which results are said by the parties to be indicative of the ongoing condition. Those notes do not convince me that the plaintiff’s mother was inaccurate in her evidence of observation of worsening symptoms. The unchallenged evidence is that the family had been advised by Dr Thacker and Dr Tu in relation to the plaintiff’s organic stomach condition and that she remains too young to receive medication for it, as was prescribed for her father. The report of Dr Tu dated 27 June 2019 (Exhibit 11) confirms that the plaintiff’s parents were advised, prior to her injury, that it was not “suitable” for her to undertake treatment until she “has grown into a more adult like physique”. There has been some medical treatment, but nothing has worked. In April 2022 the family took the plaintiff to Dr Thacker because she was suffering stomach symptoms very frequently.

12. Her mother said that she can see that the plaintiff’s right upper eye lid is lower, when her eye is open, compared to the left eye. She said sometimes the scarring is very obvious. On a good day it is “not that easy” to see: T24:49. On a bad day it is “very obvious”: T50:1. Her mother said that when the plaintiff is tired, she can “obviously see her eye is different”: T25:5. Exhibit C is five short videos taken by the plaintiff’s mother of the plaintiff’s face some time several months ago in 2022. The videos show swelling of the right eye which was not obvious to me when I spoke to the plaintiff in court. That said, in each of the videos the plaintiff is wearing pyjamas. They were taken on the same evening, but not just before bed. The videos were taken when the plaintiff was drawing. Obviously, my opportunity to observe the plaintiff’s pace was near the middle day. She was not tired when I spoke to her. I would only add that I placed no weight in the video described in the Court Book index at [29] as “filming the Plaintiff moving her eyes from right to left”, because the lighting was from side and risked distorting the opportunity to assess swelling.

13. When challenged on the basis that, if the plaintiff was stressed because of her change of appearance, why was she not more frequently taken to the family GP, her mother provided the reasonable response that upon the GP attendances were only in relation to eye care such as for discharge and review of covering. She said that for real concern regarding the eye, the family attended the Westmead doctors.

14. I refer elsewhere to evidence of schoolteachers liaising with the plaintiff’s mother regarding the specifics of encouraging the plaintiff to respond to questions and to engage with teachers and classmates. Nothing in the cross examination of the plaintiff based on the general and short overviews of her as an attentive and participating student, in the school reports, caused me to doubt the accuracy of the mother’s evidence in this regard. Schools do not prepare such short reviews of the pupil’s performance over a semester with a view to precision of expression which might be required in regard to the issues in a court case. I do not say that the school reports were of no weight. I accept, as the plaintiff’s mother put it, that teachers were calling her in regard to specific injury related issues. Indeed, the school reports observed that the plaintiff pressured herself to achieve. The reports are not inconsistent with the plaintiff being more self-conscious, anxious and stressed about herself, than she was before the accident.

15. Counsel for the defendant agreed with my observation that he did not put to the plaintiff’s mother and consequently, he does not make a submission to the effect that she was other than a Frank witness. Specifically, the defendant does not submit that the plaintiff’s mother exaggerated. Because she is the plaintiff’s mother and was giving evidence of fact as if, in the shoes of the plaintiff, I observed her and listened carefully to her evidence for emotion-based distortion. I formed the view that she was a witness of accuracy.

EXPERT MEDICAL EVIDENCE

16. From this point I discuss the plaintiff’s mother’s further evidence in my consideration of the expert opinion evidence. The plaintiff’s expert medical opinion evidence includes the medicolegal reports of Dr McGlynn, plastic and reconstructive surgeon, dated 21 June 2021 and 6 June 2022; as well as for medicolegal reports of Dr Lee, psychiatrist, dated 26 April 2022, 26 September 2022, 11 October 2022, and 17 October 2022. Dr Lee gave oral evidence. The defendant did not tender any medical expert opinion report evidence.

17. Dr McGlynn assessed the plaintiff’s facial scarring during consultation on 17 June 2021. His first report helpfully described the injury and the scarring (after 18 months) observed by him. His second report commented on the photographs (exhibit A 1 and A 2) and videos (exhibit C). Nothing in the evidence of the plaintiff’s mother, or from my observation of the plaintiff’s scarring in the courtroom differs from the assumptions made by Dr McGlynn. Dr McGlynn’s detailed medical description of the injury may be summarised as:

a full thickness transverse tear of the right upper eyelid, detaching it save for a narrow lateral attachment, and a division of the upper eyelid tear duct.

18. The repair surgery included multilayer, full thickness, reattachment and the insertion of a tear duct stent, under general anaesthetic. The stent was subsequently removed as a day surgery procedure on 15 June 2020.

19. I quote the following description of the scarring from Dr McGlynn’s first report, which is in precise medical terms; but as I understand it, entirely consistent with my own observation made within the courtroom:

“On the right upper eyelid immediately above the eyelash line there were two horizontal scars separated by 5 mm. They extended from the inner canthus to 2/3 of the way across the eyelid toward the lateral canthus. There was a third scar oblique in the mid-upper lid reaching the inner canthus, 15 mm x 2 mm. The two upper scars were visible when the eye was open; all three scars were visible when the eye was closed. With the eye open, the upper eyelid fold was level with the eyelashes covering the lower transverse scar. The scarring had mixed hyper and hypo pigmentation causing noticeable colour contrast, was indented, with no visible stitch marks.”

20. Nothing in the report of Dr Delaney, ophthalmic surgeon, is inconsistent with the description of the ongoing impairment, given by Dr McGlynn. Should there be inconsistency, I prefer the specialist opinion of Dr McGlynn, as a cosmetic surgeon, over that of Dr Delaney, he being an ophthalmic surgeon.

21. At the time of the hearing, two and three-quarter years after injury and 1 1/3 years after Dr McGlynn’s consultation with the plaintiff, I did not notice any obvious discolouration, if that be what the doctor meant by “pigmentation”. I easily observed what one commonly sees of a clean scar line. The scar line or lines were lighter in colour than the surrounding skin. I assume that is a lay expression of what Dr McGlynn described in medical terms.

22. My examination of the plaintiff’s face and eyes occurred in an informal setting around a coffee table near the courtroom public gallery, I did so without speaking of her eye at all. The well lit courtroom environment provided an excellent opportunity to observe her scarring. My observation was that when her eye was open I could easily see on her upper lid a scar of length of less than a centimetre above the corner of her eye, proximal to her nose. In lay terms it was a fine line, observably paler than the surrounding skin but not otherwise discoloured. When her eyelid was down-her eye closed as she blinked-there was longer scarring extending from the corner of her eye, proximal to her nose for about 80% of the width of her upper eyelid. I saw no swelling or other abnormality than what I have described as “paler” scar lines.

23. Our faces were more than 1 m apart. Whilst I would describe the scarring as, in layperson’s terms, “hairline”, it was easily observable to a person at that distance. Whilst I did not perform the test of moving away because I did not want to alert the plaintiff to my focus on her scarring; I am sure that the scarring would be visible to a person engaged with the plaintiff, such as in conversation with her, from a distance of comfortably more than 1 m. Her scarring is readily visible to any person at normal social communication distance: see T446:16-30.

24. In Dr McGlynn’s opinion, the permanent visible scarring, which causes facial disfigurement, does not affect the plaintiff’s capacity for study or work. Importantly, he assessed her prognosis as “fair”. He explained that qualification of prognosis as resting on the risk that the plaintiff might become more conscious of her appearance during her teenage years and become significantly concerned about the scarring. He thought it unlikely that the scarring would deteriorate.

25. Dr McGlynn did not think that the scarring requires further treatment presently, but if in the future, the plaintiff requests it because of her concern, it would be “possible” to revise the scarring surgically when she is a teenager. The probable cost of such surgery, Dr McGlynn estimated at $12,000.

26. In his first report, Dr Lee recorded that the plaintiff had missed 10 days of school, not because of the scarring but because of her abdominal pain. He recorded having been told (the plaintiff’s mother attended the AVL consultation on 26 April 2022) that prior to the accident the plaintiff worried about her skin being darker than her mother’s and would ask whether her legs were “skinny enough”. He also recorded the plaintiff’s mother having said to him that she did not think her daughter required counselling “at the moment but may need it as she gets older if she becomes self-conscious about her appearance.” During oral evidence, the plaintiff’s mother said, and I accept, that she does not possess the professional skill to assess whether or not her daughter requires psychological treatment.

27. In her Frank evidence, which to my observation displayed no exaggeration, the plaintiff’s mother described the plaintiff as having changed in ways which are of concern to her. As was apparent from his reports and his oral evidence, Dr Lee also considered such changes of behaviour and demeanour to be significant in the consideration of the plaintiff’s present and future needs for psychological treatment. Those observation include:

1. the need to sleep with her mother and to be settled from both laughing and crying before sleep by her mother ongoing at age 8 ½, when the parental plan pre-injury had been that she sleeps independently from achieving age 6 years;

2. a refusal to continue with sports which risked contact including soccer and basketball (the plaintiff continues to play table tennis only);

3. teachers telephoning the plaintiff’s mother recommending speech therapy because of the plaintiff’s reluctance to answer questions;

4. sometimes, when looking in a mirror, the plaintiff tells her mother that she can see her scar;

5. the plaintiff refuses to talk about her accident;

6. a loss of confidence, in that whereas school reports describe the plaintiff’s ongoing positive development, including in terms of class participation, teachers communicated with the plaintiff’s mother about the need to encourage the plaintiff to respond to questions and about the mechanisms they have over time put in place to encourage that;

7. an increase in anxiousness, in that her mother described the plaintiff as “quiet” which, in her evidence meant all of the above factors and an underlying increase in worrying and focus on self-imperfections such that whilst her schoolwork is not affected, the plaintiff definitely feels less happy because of a sort of stress when compared with her prior to her injury.

28. Dr Lee said in oral evidence that he considered the above matters, as put to him, to be significant in terms of assessment of diagnosis and of treatment need.

29. I understood the evidence of the plaintiff’s mother to mean that she observed an overall change in the plaintiff from being a “no worry” child to presenting a more stress caused personality of greater reserve.

30. Consideration of the whole of Dr Lee’s expert opinion evidence, in my opinion, shows that he has consistently commented on the plaintiff’s symptoms in the context of his consideration of the threshold to satisfaction of the formal psychiatric diagnosis according to DSM V (Revision), Adjustment Disorder.

31. In his first report (26 April 2022) Dr Lee described the plaintiff’s overall presentation as not “current evidence of a clinically significant psychiatric disorder apart from the report of possible functional abdominal pain”. He immediately recorded his reserve for that conclusion of assessment, stating “but she seems a little worried about what might happen to her in the future, and I have to express concern about the reported sleep problems.” He also opined that the plaintiff may need psychological counselling when she is older and becomes self-conscious of her appearance. Despite his assessment that there was not present then a clinically significant psychiatric disorder and after receiving the mother’s opinion that the plaintiff did not then require psychological counselling, Dr Lee concluded that the plaintiff did suffer from “an adjustment disorder with sleep disturbance and possibly functional abdominal pain (if an organic cause for her gastrointestinal pain such as infection… Is excluded)” in the context of recording his observations of “slightly insecure before the accident given her inability to sleep alone and her concerns about her appearance… Her self-confidence and social skills have been slightly affected by injuries” and again observing that the plaintiff may become more self-conscious especially as she deals with the issues of puberty due to her residual scarring.

32. In his first report, Dr Lee estimated that if the plaintiff becomes self-conscious in the future, she will require cognitive behavioural therapy of 10 to 15 sessions at an estimated cost of $300 per session.

28. In accordance with, what in my opinion having observed Dr Lee in the courtroom, was his ongoing professional approach to reassessment of the threshold question of whether or not the formal diagnosis of Adjustment Disorder be made; as new and more information was provided to him, Dr Lee over time changed between the plaintiff meeting that formal diagnosis and only being at its threshold.

29. In his second report (26 September 2022) Dr Lee commented that in his first report he had arrived at the opinion that the plaintiff’s complaints justified that diagnosis; but on review of the whole of the information then available to him and, despite her mother’s report, Dr Lee concluded that the plaintiff did not suffer from a diagnosable psychiatric disorder because of the accident. He was particularly influenced by the plaintiff’s own report, contrary to her mother’s, that she did not suffer sleep disturbance and because school records were inconsistent with clinically significant distress. His third report, 11 October 2022 did not change his position in relation to the threshold of diagnosis. That he was focused on the question of whether or not that threshold was satisfied his plain from the final sentence of his report: “It appears that the reported symptoms are subclinical.”

30. In his fourth and final report dated 17 October 2022 Dr Lee was wrongly instructed that on urea breath testing, the plaintiff did not suffer physical gastrointestinal tract problems. In fact he was, briefed with the whole of the GPs notes which included the test results which included positive and negative test results. Nevertheless, Counsel for the plaintiff properly conceded in court that the covering letter of instructions referred to the 13 September 2021 urea breath test which was negative. The letter omitted to instruct that a subsequent test for H. pylori had returned a positive result.

31. What is most significant in Dr Lee’s fourth report, is that he observed that the GP and hospital records indicated an increased frequency of the plaintiff’s complaints of abdominal pain after the accident (and wrongly that “the urea breath test makes an organic cause unlikely”) but that, the plaintiff suffered difficulty verbalising her feelings, which difficulty was likely to have a negative consequence in her ability to cope with the complexities of life as she grows older. In oral evidence (T52.35) Dr Lee agreed that a positive Heliobacter test would lessen the significance of abdominal pain in his assessment of psychiatric diagnosis but added that stressed and anxious people commonly complain of gastrointestinal pain; so whilst the presence of H. pyloris lessens the weight of the plaintiff’s functional response to that pain, it does not exclude a combination of organic and functional complaint.

32. Thereafter Dr Lee recorded 16 paragraphs, the content of which did not involve abdominal pain, as reasons for his conclusion that “there is a significant probability of psychological disturbance, which is increasingly likely to affect her as she grows older.” I note that his expression was again in terms of significant symptomatology and consideration of the threshold to formal diagnosis and I extract from those reasons as follows:

1. At 5 “As a result of the clearly observable altered appearance of her eye, I consider that there is a likelihood of psychological disturbance as she develops both physically and psychologically.”

2. At 6 “It is likely to result in loss of self-confidence and some degree of social, intimate and vocational impairment as there are few areas of life in which self-confidence is not required.”

3. At 7 “Children with visible scarring struggle more socially than those without.”

4. At 9 “Facial expression has a crucial function in communication, and difficulty making eye contact can cause a decline in social skills.… especially in adolescents which can be a critical stage in the development of a secure identity and social competence.”

5. At 11 “She may experience intrusive questions, stares and/or avoidance which can make them acutely aware of feeling abnormal…”

6. At 15 “Scars can cause a permanent identity change requiring a new adjustment to her outward persona and inner self image.”

7. At 17 “It is her subjective experience and perceived severity of her scarring rather than objective clinical severity that will predict the level of distress as she negotiates the developmental pathways of adolescence and adulthood. Heightened awareness of scars can manifest as anger, anxiety and frustration.”

38. In court, Dr Lee was careful to explain that whether or not the plaintiff satisfies the diagnosis of Adjustment Disorder pursuant to DSM V (Revision) is not determinative of whether or not psychological treatment is reasonably required. Both during his oral evidence in chief and in cross examination he was asked whether or not that formal diagnosis is currently satisfied on the balance of probabilities and of the chance that the plaintiff will meet that diagnosis in the future. Dr Lee understood that assessment of the future, for the purposes of this hearing, involved assessment of possibilities. I listened to his evidence carefully and understood his conclusions to be:

1. presently he is “grappling” with whether or not the plaintiff’s presentation satisfies the formal diagnosis of Adjustment Disorder, but her presentation outside the courtroom was “very distressed”;

2. if future surgery were to improve the scarring during teenage, it might possibly improve the plaintiff’s psychological adjustment but would probably not achieve resolution and it is outside of Dr Lee’s specialist knowledge to assess what degree of cosmetic resolution or improvement would be achieved by surgery;

3. even if one puts aside the scarring as others with whom she engages might do, it remains the plaintiff’s subjective perception which will determine her psychological affectation because it;

4. the plaintiff has a vulnerability to be taken into account and if the photographic evidence of the scarring is accepted as valid [ comment: neither party suggested that it was not], then there is a significant possibility that the plaintiff will present under pressure of her appearance and relationships at around adolescence and early adulthood for psychological treatment;

5. that the disfigurement is to the plaintiff’s eye and face is a significant consideration when assessing the psychological affectation of her scarring upon her subjectively and in life;

6. Dr Lee’s assessment, that the plaintiff is anxious and avoiding things that it would be normal for her as a child to do are classic indicators of her suffering and Adjustment Disorder.

39. He gave the following evidence:

HIS HONOUR

[putting mother’s evidence after inviting parties to object]

(T66. 30) Q. Or she might talk about stress from the day, and it's not every day but almost, a minimum of three times a week. The question being framed by Ms Welsh toward you is, does that evidence affect whatsoever your assessment of the range of possibilities about which now all three lawyers in the room have asked you?

A. The evidence does increase the likelihood or the odds, I guess, of her having a requirement for treatment in the future. As I possibly said before, anxious children tend to be anxious about their parents. The fact that she expresses concerns for the mother's safety is quite a common thing in child psychiatry. Inability to sleep alone is a classical feature of anxiety in children. Presumably, the parents' plans for her to sleep alone at the age of six being disrupted is a sign that she's affected. So, yes, the information does influence me.

WELSH

(T 66.36 – 45) Q. Doctor, when you say it does influence you, to what extent?

A. Significantly. She's her trajectory has been disrupted in terms of this development trajectory of being able to sleep alone. She's worried about her mother, which is also concerning in the scheme of things, because one generally needs to be able to relax about the safety of one's parents in order to get on with one's lives. So, it does concern me.

(T67. 4 – 68.9) Q. Does that [avoidance of sport] have any significance to you?

A. Yes. It means that she can't do things without anxiety and trying to avoid, I suppose, worsening her condition. So, she misses out on sports and activities that are generally important for self esteem and engagement with one's peers and so forth, so that is a concern.

Q. Taking all of that into account, are we still dealing with a range of possibilities or have you got a different view now about whether she may, in fact, now have an adjustment disorder?

A. Well, having said that the boundaries are imprecise, but having said all that, it sounds like she's got significant impairments. She avoids sport. She avoids sleeping alone. So, those factors shift the issues about the diagnostic threshold for an adjustment disorder. She's got impairments; an inability to sleep alone and to engage with her peers in sport.

…….. [HIS HONOUR]

Q. Which way do they shift?

A. Well, towards a diagnosis of an adjustment disorder.

WELSH

Q. Just to make this clear, take up my friend's point about the subject matter of the distress raised by the plaintiff not being the accident itself. You said before that, often in child psychiatry, a child who is suffering distress will have a fear for their parent?

A. Yes.

Q. Is that the way you see that in this case?

A. I think that's the most likely - to narrow - unless there's some other factors I'm not aware of, the most likely thing is that this is related to this case.

Q. By "related to this case", you mean this accident?

A. Yes.

Q. Is that your opinion on the balance of probabilities?

A. On the balance of probabilities, on the facts available to me, yes.

HIS HONOUR

Q. That question wasn't unfair because you're an expert, but I understood your answer to mean it affects, in the way you have said, your assessment because of factors, being factors which shift possibilities towards a diagnosis of adjustment disorder, but I did not understand you to mean that it causes you to opine a conclusion more probably than not there is, and will in the future, be an adjustment disorder?

A. Just so I can be clear, if she can't - if she can't sleep by herself, if she avoids contact sport or any - any sport whatsoever, then the--

Q. No, not all sport whatsoever, she plays table tennis.

A. Okay, okay, so if she avoids sports apart from table tennis, mm, I - if she's - if she's clinically anxious and significantly so that she avoids things that most normal children would do, then, she's got an adjustment disorder. If there's impairments - if - if - if she's unable to do things that would further her development, then she has an adjustment disorder. So, I - I - I don't know if I'm being helpful, but that's the way I'm seeing it. As she presents on - on goes as she's presented me, then, the balance shifts towards a diagnosis.

40. I reject the closing submission of counsel for the defendant, to the effect that there was inconsistency or otherwise an unreliability in Dr Lee’s expression of his expert opinion. Of course, there is no other expert opinion of a psychiatrist or clinical psychologist in evidence against which to weigh his opinion. Nevertheless, I understood the thread of Dr Lee’s opinion was a constant review of the question at the threshold of his determination of whether or not the plaintiff met the criteria for a formal diagnosis, or will in the future meet the criteria for the formal diagnosis-Adjustment Disorder. To his credit, each expression of his assessment of that threshold was in accordance with new and extra information, or review in accordance with submissions of counsel in regard to information, presented to him.

41. Tellingly, Dr Lee said in his oral evidence that, if it were up to him, the plaintiff should receive psychological counselling sooner rather than later. Dr Lee was mindful of the plaintiff’s self-reported pre-injury self-consciousness and that this predisposed her to vulnerability for psychological harm from such scarring. The effect of his evidence is that there exists a significant possibility that the plaintiff will present for treatment because of her scarring at around adolescence to early adult hood and that this is particularly so because the scarring is to her face.

42. During closing submissions, Counsel for the defendant first advanced and then retracted the suggestion that when the plaintiff was spoken to by Dr Lee outside of the courtroom, she would have been scared by the courtroom environment. Quite obviously attending the John Maddison Tower and the courtroom for a few minutes to speak to me, was an out of the ordinary environment for the plaintiff. I assume that she was aware that her attendance was in regard to her scarring. When speaking to me she said that the courtroom was “nice” and “not a scary” room but that she did not like a lot of people watching her: T 44:10-15. We spoke about her pet cat. Whilst allowance for the environment should be made when considering Dr Lee’s oral evidence of his impression of her during their discussion; in my opinion, the plaintiff was not scared. We had achieved between us a relaxed and enjoyable conversation during which she smiled. This was just prior to the specialist psychiatrist, Dr Lee meeting with her. I do not accept that his assessment of her in that meeting is to be significantly discounted by the effect upon her, if any, of the surrounding environment.

43. Other than Dr Lee’s agreement that an organic abdominal condition being a source of the plaintiff’s abdominal pain would lessen, to some degree, the influence of that pain complaint in his assessment of diagnosis, but not eradicate his concern for a functional element associated with her pain complaint; the defendant did not disentangle or exclude the operation of the accident as a contributory cause of that symptom: Watts v Rake (1960) 108 CLR 159, particularly per Dixson CJ at page 160. As I have observed above, in any event, Dr Lee’s assessment was influenced by significant other factors.

DICERNMENT

Section 16 – Non-economic Loss

44. The assessment under section 16 is neither scientific nor normative. I have accepted the mother’s evidence that the plaintiff, who pre-injury displayed self-focus including specifically as to her appearance, has become by degree a more stressed child after her injury. Her behaviours of reticence in participating in responding with other people, dislike of looking at herself in the mirror, dislike of speaking with or engaging with people if she is concerned that they are watching her, avoidance of contact sports for fear of being bumped, are categories which I understood to fall within the expression “quiet” as it was used by her mother during evidence. Whilst an interpreter assisted the mother during her evidence on occasion, she was an intelligent and frank witness doing her best in the English language to respond immediately to questions asked. I am confident that I understood her evidence clearly. She has noticed a change in a trajectory of development of positive behaviours and of personality in her daughter. That inhibition of trajectory is observed in such matters as I just described. Dr Lee considered those refrains to be abnormalities requiring psychological treatment, the sooner the better.

45. On the whole of the evidence, particular the evidence of the medico-legal reporting cosmetic surgeon Dr McGlynn and of the medico-legal reporting psychiatrist Dr Lee, as the plaintiff finds, in her trajectory, and development of identity particularly from puberty through to early adulthood, there is some possibility that she will seek further surgical improvement, and significant possibility that she will seek psychological assistance. As I understood the evidence of Dr Lee, that possibility of psychological treatment between puberty and early adulthood, would not necessarily be relieved if she underwent psychological treatment now.

46. At her present age of 8 ½ years, the course of her life cannot be predicted. The Court must do the best that it can with the evidence available at this hearing. The plaintiff has taken the forensic decision to seek a once and for all award of damages now.

47. Dr Lee’s observation that scarring to the face is, in psychology, recognisable as prone to cause psychological issues including with confidence as persons move through puberty into early adulthood, meets with worldly experience and common sense. It is the fact that whenever the plaintiff speaks with anyone now and into the future, they will observe the scarring to her eye. I accept her mother’s evidence that it is more obvious on some days and particularly when she is tired. I accept her mother’s evidence that she is able to observe, particularly on those occasions, that the right eye lid is noticeably lower than the left eye upper lid when the plaintiff’s eyes are open.

48. In my opinion, that the plaintiff subjectively and objectively suffers a continuing and significant deprivation of the opportunity to participate in normal activities, including during conversation with people, meeting new people, attending job interviews and so on, and thus to enjoy life to the full and to take full advantage of the opportunities that it might otherwise offer, is readily established on the evidence.

49. But determining the percentage of a most extreme case, whilst an impressionistic and discretionary assessment, is not wholly at large. Section 16 of the CLA requires damages be fixed in harmony with the fact that parliament has determined that a maximum being “a most extreme case” is laid down. The defendant referred me to Sretenovic v Reed [2009] NSWCA 280 and Currie v Azouri (1998) 28 MVR 406, the latter being a determination under the similar provisions of the MACA. Those cases concerned scarring to the limbs and body. This case is difference because it concerns scarring to the face and, in my opinion, the part of the face most in focus during the important amenities of life associated with communication, intimacy and self-perception including when looking in a mirror.

50. The plaintiff has always been a child, taking her appearance seriously. Dr Lee referred to this as a vulnerability for the effects of the scarring. In my opinion, her subjective fear and apprehension that persons were watching her eye, when she was spoken to in the Court Room, whilst on that occasion an accurate apprehension; nevertheless, would be present whenever she is speaking with or being looked at by a person at a distance of in excess of a meter and perhaps in excess of 2 meters but not from a greater distance than that. As I said to Counsel during closing submissions, as we discussed the case I was looking at their eyes, not even at their broader face, not at their body. In my opinion it is natural to do so. For completeness I acknowledge that the defendant directed attention to a mark just above and near the plaintiff’s left eye, the result of another injury. That mark is a tiny divot, as if a scar from an acne pimple. When I was speaking with the plaintiff in the Court Room, it would not have been noticed by me but for the defendant raising that imperfection in this case. In my view, consideration of that mark is not of much assistance in the assessment of section 16 – non-economic loss damages. There can be doubt that the plaintiff suffered significant emotional trauma from the incident of her right upper eye lid literally being nearly detached, her eye covered, eye surgery and thereafter recuperation over approximately six months including an extended period of her eye being covered and a stent in her eye from which yellow seepage flowed. Dr Lee did not give specific evidence of psychological effect of those traumas and accordingly I do not weigh it in my consideration of his opinion that the plaintiff persists with a psychological symptomatology at the threshold of a formal psychiatric diagnosis of adjustment disorder. Nevertheless, worldly experience requires acceptance of an undefined level of risk of present and future effect from her having suffered that trauma.

44. In my opinion, quite apart from the pain and inconvenience, the plaintiff’s demeanour and zest for life have been severely impacted by the defendant’s negligence.

45. I assess non-economic loss pursuant to section 16 at 25% of the most extreme case.

Section 13 – Future Economic Loss

53. The Moss Case is the leading authority as to how courts should assess damages for loss of earning capacity in cases of personal injury involving young persons or others whose future circumstances are particularly difficult to determine; as stated by McFarlan JA in White v Redding [2019] NSWCA 152 of State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133. Here, the plaintiff is 8 ½ years of age and a year 1 school student, not 14 years of age and a year 10 school student as was Ms Moss. Here there is no evidence of ambition or otherwise choice of career path the plaintiff might have followed. In the Moss Case, the plaintiff had a long-term ambition to become a self-employed hair dresser and the evidence indicated that she would have been likely to achieve that goal had the cosmetic and physical injuries she suffered in the accident not prevented it.

54. My impression of the plaintiff, from our short discussion in the Court Room, that she was a delightful 8 year old female child, on all the evidence, with the benefit of a well nurturing family, is evidence against the prospect of deprived childhood and educational opportunities at this young age. Indeed, that she attends an excellent school is direct evidence of such opportunity; however year 1 is a very early launch pad from which to project considerations of what her future earning capacity might have been but for the injury and particularly whether her career choice would have been one in which scarring to her right eye would be of great or minimal disadvantage to her. Is she to be a model or beautician or an academic or follow a profession for instance? In any calling, she will be required to engage with people and self-consciousness of scarring to her right eye is likely to be to some degree a disadvantage to her. But for her injury, there is no basis to discount the probability that the plaintiff’s future circumstances would have been of average weekly earnings, a basis proposed by her Counsel.

55. The plaintiff claims damages by way of a buffer or cushion. In closing submissions, Counsel for the plaintiff proposed as a guide to consideration of buffer; that the plaintiff would enter the workforce in 10 years, on average weekly earnings (presently $1,790.00 gross per week) and a calculation of diminution of earning capacity on the basis of $200 per week for her working lifetime of 50 years, after applying the multipliers for her working life commencing after 10 years and discounting for 15%, a figure of $101,895 is arrived at. In the defendant’s schedule of damages (MFI #8) the defendant proposed nil damages for future loss of earning capacity.

56. The plaintiff’s subjective self-view must be included in assessment of her residual capacity to compete in the work place for employment. In my view, the plaintiff’s loss of capacity to earn in a manner productive of financial loss is modest. Whilst I have assessed her non-economic loss at a significant percentage of a most extreme case, the palette of choices of employment likely to be available to the plaintiff but for her injury and, adjustment to that palette because of disadvantage in the market place due to her scarring, does not, on the evidence available, permit more than an impressionistic and evaluative assessment of production of financial loss. As was said in the Moss Case, with which the Court in the White Case agreed (see McFarlan at [38] and [42]) on such slender material as is available on the evidence in this case for the making of the assessment under section 13, that assessment involves “guess work” rather than estimation. In my opinion, to some extent, the plaintiff’s capacity to earn income in the future, has unquestionably been reduced to some extent.

57. Accordingly, I would assess that but for the injury the plaintiff’s likely future circumstances would have comfortably been to earn average weekly earnings in some form of employment. Not only is this because she has to this point in her life enjoyed good education and family nurturing but she is the daughter of working parents. There are no negatives in her pre-injury life environment as to her then future earning prospects. Doing the best I can as to her most likely future circumstances, on a buffer or cushion basis according to the approach explained in Penrith City Counsel v Parks [2004] NSWCA 201 and on the basis that the possibilities of some limitation of career choices due to her scarred appearance, some degree of inhabitation or diminished self esteem affecting her competitiveness during job interviews or when dealing with customers and some slight chance of rejection or disapproval by others in the workplace on account of her scarring, I allow a lump sum of $5,000.

Past Out of Pocket Expenses

58. Agreed at $929.36

Future Treatment Expenses

59. The plaintiff, by her schedule of damages (MFI 6), proposed a lump sum of $20,000 for future cosmetic surgical review and cognitive behavioural therapy. The defendant schedule of damages (MFI 8) proposed an allowance of nil.

60. The only evidence of the possibility of future cosmetic surgical revision, estimated at a present cost of $12,000, is Dr McGlynn’s observation no doubt based on experience of patients that the plaintiff might seek that review at some stage after puberty, and the evidence of Dr Lee that there is a significant possibility that the plaintiff will become more self conscious of her appearance between puberty and early adulthood. I have assessed there to be some possibility of future surgery. Assessment of possibilities on the basis of Dr Lee’s evidence, weighs in favour of an allowance for the cost of future psychological therapy. His estimate of the cost of such therapy amounts to a cost of $3,000 to $4,500. After his providing that estimate in his first report and on seeing the plaintiff at the time of the hearing, he came the opinion that she would benefit from such therapy sooner rather than later. He was not asked and did not give evidence of how often in the future that treatment might be required such as during periods of exacerbation, if any, of adjustment disorder like symptomatology. If cognitive behavioural therapy were to be received now, then no discount on account of it being paid for in the future is required. On the other hand, the common evidence is that treatment whether it be surgical or psychological, is possibly a cost incurred at about 5 – 10 years from the present. The evidence shows that the plaintiff’s family have appropriately and regularly attended Doctors for treatment of her condition to date.

61. Doing the best that I can with the evidence, I allow a lump sum of $8,000 for future medical treatment cost.

ORDERS

1. Judgment for the plaintiff in the sum of $59,929.36.

2. Defendant to pay the plaintiff’s costs of the proceedings.

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Decision last updated: 28 October 2022