Darling v City of Swan - [2009] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DARLING -v- CITY OF SWAN [2009] WADC 149

CORAM: O'NEAL DCJ

HEARD: 18 - 20 AUGUST 2009

DELIVERED : 25 SEPTEMBER 2009

FILE NO/S: CIV 2449 of 2005

BETWEEN: HAYDN ROSS DARLING
Plaintiff
AND
CITY OF SWAN
Defendant

Catchwords:

Personal injury - Negligence - Occupier's liability - Damages

Legislation:

Occupiers Liability Act

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr J Hanly
Defendant: Mr J Eller

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: John Eller

Case(s) referred to in judgment(s):

Brodie v Singleton Shire Council (2001) 206 CLR 512
Bullock v Miller (1987) Aust Torts Reports 80-128
Burford v Allan (1997) 68 SASR 217
Gowling v Mercantile Mutual Insurance Ltd (1980) 24 SASR 321
Graham v Baker (1961) 106 CLR 340
State of New South Wales v Moss [2000] NSWCA 133
Tame v State of New South Wales [2002] HCA 35
Taylor v Bristol Omnibus Co Ltd [1975] 1 WLR 1054

O'NEAL DCJ: On the morning of 21 October 2001 the plaintiff was watching his father play baseball. The plaintiff was then about 10½ years old. The baseball match was taking place on the Patterson Reserve in Middle Swan. It was a wet and windy day and as the plaintiff watched the game he took shelter behind what has been called in these proceedings a "dugout". That term is somewhat misleading because the dugout was in fact a moveable steel pipe frame structure with a roof and sides made of sheet metal. It rested on the ground but was not secured in any way.
The dugout was about 2½ metres wide and 2.1 metres high at the front and was shaped, for all intents and purposes, like a wind scoop. The mouth of the scoop was open to the direction of the then prevailing wind. A gust of wind began to blow the dugout over. The plaintiff at first pushed back and then ran. Before he could get clear however the dugout toppled onto him, seriously fracturing his left femur.
The fracture was set in the course of surgery using internal fixation. The recovery process took quite a long time. The injuries caused the plaintiff much pain and a disability that took much of the pleasure from his adolescent years. He has been left with a degree of physical disability in his left leg.
At the time of the plaintiff's accident the defendant was the occupier of the Patterson Reserve and was responsible for its care, control and management: defence par 2. Sensibly, the defendant (by its counsel) has admitted (at T201) that it owed a duty of care to the plaintiff to, among other things:
1.take such care as in all the circumstances was reasonable to ascertain the existence of dangers; and
2.take reasonable care to see that persons such as the plaintiff would not suffer injury by reason of any dangers existing on the land or due to the state of the Patterson Reserve or anything done or omitted to be done on it;
3.take reasonable steps within a reasonable time to remedy risks created by any such dangers.
It is not suggested by either party here that there is any relevant difference between the common law and the Occupiers Liability Act 1985 (WA) with respect to the nature or scope of any relevant duty of care.
The plaintiff's case is that the defendant breached the pleaded duty of care by, among other things, failing to implement an inspection regime, failing to ascertain whether there was a risk of a person being injured by the dugout, allowing or permitting the dugout to be placed on the land in such a way that it could be blown over onto persons using the land and failing to ensure that the dugout was secured to the ground so that it could not be blown over.

Liability

The reserve

The Patterson Reserve came under the control of the defendant in 1999 as land reserved for the purpose of recreation. The Patterson Reserve was used for the purposes of recreation for some years prior to the plaintiff's accident.
While I was not provided with any information about the exact size of the reserve it is obviously very large and it sits in the middle of a large open area. Photographs of the dugout and Patterson Reserve were tendered as Exhibit 1. The photographs were taken by the plaintiff's father two days after the plaintiff's accident. There were further photographs of the reserve included in the expert report of Dr Steven Chew which was tendered by consent as Exhibit 4.
There are facilities on the reserve for a variety of recreational activities. There is a football oval. There are tall lighting towers so that the playing fields can be used at night. There is what appears to be a clubhouse facility. There is some fencing, shown in photograph 3 at p 7 of Dr Chew's report, which is quite obviously designed as the backstop netting for baseball.
The pictures appear to show the grass of the reserve to be well tended and, with the exception of a bit of litter in some of the photos, the public areas appear to be well kept and tidy.
The photographs show the two kinds of structures that were described as "dugouts" in the course of the trial. The first is a large pipe framed structure that appears as nothing more than a base, four posts, roof frame and a bench inside. Photographs taken by Dr Steven Chew in 2009 of what appear to be the same structures show that at three points, these structures are secured to the ground by a U‑shaped piece of steel rod that secures the base of the frame to a lump of concrete that has been set in the ground. These structures are obviously intended to be covered with a tarpaulin when used.
The second type of dugout I have already described as "moveable". That is certainly correct in the sense that they are not fixed in place. They are, however, large and awkward. These dugouts are shown in the photographs taken by the plaintiff's father. It seems that shortly after the photographs were taken these "moveable" dugouts were removed. I am told that no‑one associated with the plaintiff or the defendant has any knowledge of either how they came to be at the reserve in the first place or who removed them. In these reasons when I refer simply to "dugouts" I am referring to these moveable dugouts.

The accident

Mr Ross Darling and Mrs Mandy Lee Darling, the plaintiff's father and mother, gave evidence on his behalf. Neither their evidence nor the evidence of the plaintiff was challenged in any significant respect by the defendant. I have no hesitation in accepting their evidence.
The plaintiff's father was a successful amateur baseball player for many years. Mr Darling had retired from amateur baseball about two years prior to the plaintiff's accident. He rejoined a local amateur league and 21 October 2001 was to be the occasion of the first game of his comeback.
Mr Darling and the plaintiff went to the reserve at about 10.30 or 11 o'clock on Sunday, 21 October. The two large fixed dugouts had tarpaulins over them. The dugout which injured the plaintiff was in place near a fixed dugout on one side of the field. There was a similar set‑up for the opposing team with a fixed dugout and a moveable dugout.
Mr Darling had seen the dugouts before. They were painted in the colours of the Midland Football Club. Prior to his two‑year break from the game the Patterson Reserve had been the home ground of his baseball team for four or five years. The football season finished in September and baseball and cricket would start on 1 October and run through until about April. Every second weekend during the baseball season he would play at the Patterson Reserve and he also trained there. When he went to the Patterson Reserve in that time the dugouts were always there and always in the same position. He never saw them moved by anyone. On 21 October 2001 when he returned to Patterson Reserve the dugouts were basically in the same location as he had last seen them, except that the moveable dugout on the opposite side of the field was already lying flat on the ground.
The parties agreed for the purpose of the trial that the mass of the dugout was 100 kilograms. Dr Chew estimated that a wind speed of 44 kilometres per hour would have tipped the dugout over. Dr Chew also says that if the dugout was 150 kilograms then the wind speed necessary to tip it would have been 54 kilometres per hour. While winds of that speed are not an every day feature of local weather, it could hardly be said that winds of that speed or greater were unusual. The parties through their counsel accepted that I could take judicial notice of the fact that Perth is a notoriously windy city and that wind speeds greater than 50 kilometres an hour are not uncommon here. In any event, records of the Bureau of Meteorology for the month of October 2001 show that on 16 of the 31 days of that month there were wind gusts that exceeded 44 kilometres per hour and indeed wind gusts greater than 60 kilometres per hour on six of the days of that month: Exhibit 14.
Mrs Mandy Darling, the plaintiff's mother, gave evidence. She was, in all respects, careful and measured. She attended at the baseball game with her youngest son who was then in a pram. She said that at the time the accident occurred or just prior to it her concern with respect to the weather was not the wind but rather the rain. She was heading for some nearby shelter to escape the rain when she noticed that the dugout had overturned. She saw six men lifting the dugout off of someone and then saw her husband carrying a child.
Mrs Darling said that the morning was not especially windy. That may reflect, literally, a degree of acclimatisation on her part however. The records of the Bureau of Meteorology show that the wind speed recorded at Perth Airport on that day was 65 kilometres, the maximum wind speed that month. That it was the wind that in fact overturned the dugout is not however in issue on the evidence here. There is no dispute as to the manner in which the accident occurred.
It is readily apparent why the accident occurred in the way that it did. As I have previously said, the overall design of the dugout was very much like that of a wind scoop. That is, it resembles something intentionally designed to trap and funnel the wind. The structure is relatively tall for its width and depth. The sheet metal that covers the dugout only begins about 33 centimetres off the ground so that the centre of gravity is higher than would be the case if the sheet metal had been carried down to the ground. With respect to the roof of the dugout, the front is higher than the back.
The dugout is supported only at its two sides. The pipe that forms the frame of the dugout is bent around at the sides to provide a footing. The overall effect is rather like that of a rocker. It is easy to see how once the wind caught the dugout there was nothing to stop it from going over.
So much it seems to me would have been obvious to a person taking reasonable care for the safety of people using the reserve. That is, as soon as the dugouts were noticed, any reasonable person interested in the safety of users of the reserve would have considered how those structures would behave in conditions which might reasonably be expected. The stability of the dugouts should have been an obvious concern.

Inspection

It was accepted by counsel for the defendant that the defendant's duty of care to users of the defendant's facilities required the defendant to inspect facilities like the Patterson reserve from time to time to make sure that they were generally safe for the people that used them: at T186.
The central argument made on behalf of defendant on the issue of liability was that the evidence tendered by the plaintiff did not establish that the dugout had been at the reserve at any relevant time apart from the day of the plaintiff's accident. There was no evidence obtained, for example by discovery or interrogatories, that demonstrated any relevant knowledge on the part of the defendant. Thus, it was argued, questions as to the frequency and scope of any inspections of the reserve by the defendant did not even arise. Absent proof that either the defendant knew of the presence of the dugouts on the Patterson Reserve or evidence that it was possible for the defendant to have noticed the dugouts prior to the day of the accident it could not be contended, it was said, that the plaintiff's injury arose as a result of any failure by the defendant to inspect the reserve.
A second argument offered by the defendant was that any risk of injury posed by the dugouts was not of a degree that would have prompted a reasonable person to take any action.
It would obviously have been prudent for the plaintiff to interrogate the defendant as to matters such as the inspection and maintenance of the Patterson Reserve and the defendant's knowledge or otherwise of the presence of the dugouts at the reserve. However, from the evidence of Mr Darling alone, I would have been prepared to infer that the two moveable dugouts had been at the reserve continuously in more or less the same spots for five years or more prior to the plaintiff's accident, and therefore for more than two years after the defendant had officially taken over the management of the reserve. The photographs taken by Mr Darling two days after his son's accident (Exhibit 1) only confirm me in that view.
While the pipe frames of the dugouts appear to have been fairly robustly built, the dugouts otherwise give every appearance of having stood in an open field for years. As an article of recreational ground equipment they are every parents' nightmare. The photographs illustrate that they are rusty (photos 1, 5, and 7), wearing a veneer of rust or accumulated bore water residue or both (photos 3, 4 and 5), and with jagged flaps of sheet metal protruding (photos 1, 3, 4, and 6). Far from looking like pieces of equipment that anyone has taken any interest in, and carefully moved from place to place or to storage, they give every indication of having been left to rust where they are.
That of course would be consistent with Mr Darling's evidence that despite the fact that the dugouts bore the colours of the local football club they were left at the reserve at the conclusion of the football season and throughout the baseball season.
Given the state of the dugouts as they appeared two days after the plaintiff's accident it seems to me inherently unlikely that anyone would bother to physically shift them any great distance and in particular shift them from the reserve to some other location. To move them any distance would appear to risk lacerations and tetanus. I infer that their apparent disappearance a few days after the accident, never to be seen again, had more to do with concern about issues of liability by some party or parties not before the Court than it did with any value placed on the dugouts. I was advised from the bar table that the football club, whose colours the dugouts bore, was insolvent and uninsured.
For all of those reasons, quite apart from an absence of evidence from the defendant that I will refer to in a moment, I am satisfied on the balance of probabilities that the moveable dugouts had been at the Patterson Reserve for years prior to the plaintiff's accident and at least since the defendant took over the management of the reserve.
The only witness called by the defendant was Mr Marrs. It became obvious when he gave evidence that he had no knowledge of any substance as to inspections by the defendant of its various recreation facilities, including reserves, at any time. He confirmed that, at least in 2005 and 2006, there was some form used by the City as a checklist for the inspection of recreational facilities such as reserves and that at least the current practice of the defendant was to ensure that when a reserve was inspected the checklist of various matters was completed. He had no knowledge whether forms of that type were used by the City in 2001. He was sure that it might be possible to find somebody at the City who would in fact know the answer to that question but beyond determining that the former manager of that department was no longer with the City he had made no such enquiries himself. He had made no enquiries to see whether there were any records of checklists with respect to Patterson Reserve for 2001.
From the one record that was tendered as evidence (Exhibit 15) it was obvious that in 2002 the defendant at least responded when issues were raised about some problem at the Patterson Reserve. I readily infer that some similar process was taking place in 2001 whether or not the relevant forms for that work had been computerised at that time.
With respect to the Patterson Reserve there were substantial facilities on that site that required maintenance. I refer to, for example, the clubhouse facility and the field lighting. The grounds were maintained both by reticulation and lawn mowing. Someone would have had to attend with some frequency to attend to those matters. As a matter of the most basic common sense it would be expected that they would report any obvious irregularities for further inspection if appropriate. It is, with respect, inconceivable that there was not some form of regular inspection of the City's recreational facilities in 2001 and in the years prior to that.
The defendant in its case disavowed any knowledge of the construction or ownership of the dugouts. That was however at best a matter of submission given that there was simply no evidence from the defendant on that point. In my view, a lack of knowledge of the provenance of the dugouts would be all the more reason for giving them close attention when they were observed on property occupied and controlled by the defendant and used by the public.
As a source of potential danger the dugouts cannot be equated to a divot in the surface of the football pitch or some similar hazard. They are objects which are so large and so obvious that they could not fail to be observed by an employee of the defendant inspecting the reserve. Even if that inspection had consisted of no more than a drive past the reserve at high speed once every six months, the dugouts should have been noticed. Accepting that they were not placed there with the consent of the defendant that would, in the ordinary course, have required some closer inspection. Reasonable care in my view would have required closer inspection to ensure that these alien objects did not present any unacceptable safety risk to users of the reserve including children and teenagers.
An examination of Exhibit 15 shows that there were six recorded attendances at the reserve in the month of February 2002 from the time that the computer record begins on 19 February 2002. In those circumstances, and absent any other evidence about the resources available to the defendant. I find that a monthly regime of at least a cursory inspection was well within the capability of the defendant in 2001. As I have said, quite apart from the prudence of some regular inspection, I would have thought that as a matter of commonsense other employees of the defendant sent to the reserve for various tasks would be asked to keep a lookout for and to report any irregularities. If the defendant's employees or representatives did not observe these dugouts in the year prior to the plaintiff's accident they should have. Absent any evidence from the defendant, I infer that the dugouts were in fact observed but for reasons unexplained no action was taken with respect to them.
Given the defendant's admitted duty of care with respect to the safety of users of the reserve, if its employees in fact failed to observe the dugouts in the years prior to the plaintiff's accident and as a consequence conduct a closer inspection of them, that, in my view was a breach of the duty that was owed to members of the public using the reserve. If they were aware of the presence of the dugout but failed to make any closer inspection, again the defendant was in my view in breach of the duties owed to users of the reserve to take reasonable care for their safety.

It is also necessary to consider whether an inspection of the dugouts would have revealed a foreseeable risk of harm and then whether the defendant's conduct in leaving them unsecured on the Patterson Reserve was such as to create an unreasonable risk of harm to persons in the category of the plaintiff. As McHugh J said in Tame v State of New South Wales [2002] HCA 35 at 102:
"Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge."
Statutory authorities such as the defendant do not breach any duty of care when a danger that subsequently causes injury, "could not reasonably be expected to exist, or could not be found except by taking unreasonable measures …": Brodie v Singleton Shire Council (2001) 206 CLR 512 at [165].
In my view there was a significant and obvious degree of risk that arose from the inherent lack of stability of the dugouts. They were light enough to be overturned and heavy enough to cause injury as a result. Children climbing on the dugouts could easily topple them. Horseplay could have toppled them onto someone. In my view, anything more than a cursory inspection by a reasonable person looking at the dugouts and considering whether they posed a risk of injury would have quickly revealed their potential in that respect. Their lack of stability and their potential for overturning either because of children climbing on them, hooligans pushing them, or the force of the wind, should have been readily apparent.
There is a real question that arises as to how anyone could have thought it a good idea to leave these structures at the reserve given the exposed corners of sheet metal and the particular hazard that presented. That fortunately was a risk that did not eventuate in this case. However, if despite that risk of injury it was otherwise thought sensible to leave the dugouts at the reserve, then some steps had to be taken to ensure that they could not be overturned either by intention or accident.
In his expert report, Dr Chew describes several simple and practicable means of securing the dugouts in place. With the greatest of respect to Dr Chew, his evidence on that point states what may be described as the obvious, illustrated as it is by the manner in which the large dugouts have been secured. As the photographs in evidence show, the larger dugouts have been secured to the ground with what appears to have required a bag of ready mix cement, some bent lengths of reinforcing bar and an hour or two of a home handyman's time. Sensibly, the defendant did not suggest that those measures were not practicable. The failure of the defendant to notice the dugouts at the reserve, or if they did notice them take steps to remove or secure them was, I find, a breach of the pleaded duty of care owed to the plaintiff that caused his injury.

Damages

The parties were able to agree a number of items of damages. Their agreement included the following:
1.Past loss of income inclusive of interest - $7,500;
2.Past voluntary services - $7,000 inclusive of interest;
3.Special damages including hospital costs ($16,875; St Johns Ambulance - $387; Prescriptions - $75.40) - total $17,337.40.
With respect to special damages there was a minor difference between the parties with respect to the cost of travel to and from hospital appointments. I will refer to that issue later in these reasons. It was not clear to me from the parties' submissions whether the issue of court order interest with respect to special damages had been resolved. If necessary I will hear further from the parties in that regard.
The real difference between the parties was in respect of general damages and in particular damages for loss of earning capacity and for pain and suffering and the loss of amenities and enjoyment of life.
With respect to future loss of earning capacity, the plaintiff's submission was that the loss could be estimated at $200 per week to age 65. When the appropriate multiplier was applied and a 15 per cent discount for contingencies allowed, that resulted in a figure of $142,000 plus $11,189 for lost superannuation benefits. While I will refer to the submission of the defendant in more detail later in these reasons, the defendant urged upon me an assessment on "a global basis" of $40,000.
With respect to general damages for pain and suffering, loss of amenities and enjoyment of life, the submission of the plaintiff was that an appropriate allowance was in the range of $100,000 to $150,000. The defendant's submission was that an appropriate award would be in the range of $42,500 to $47,500.

Evidence – pain, suffering and loss of amenities

The circumstances of the accident here would have been particularly frightening for a 10‑year‑old child.
The plaintiff remembered standing behind the dugout watching his father play baseball. He was standing there because it was raining, windy, and cold. About half way through the game he was standing with his back up against the shelter not actually watching the game. He felt the dugout push against his back like it was falling over. He tried to push back but then realised he couldn't stop it. He started to run forward to try to get out of the way when the dugout fell on top of him. It seems that he may have lost consciousness because the next thing that he recalled was waking up in his father's arms as his father carried him away from the dugout.
His father placed him on the ground where he lay for an half an hour or more waiting for an ambulance. The plaintiff was complaining about not being able to feel his left leg and so his father began to carefully remove his jeans. When they reached the level of his thigh, the plaintiff and his father saw the bone displaced from the fracture sticking out of the plaintiff's leg through the skin.
When the ambulance arrived, the ambulance crew were concerned to realign the femur before moving the plaintiff. The plaintiff remembers excruciating pain as the bone was aligned, causing him to scream with pain and cry. He was given morphine and transported by ambulance to Princess Margaret Hospital. He underwent surgery. The fracture was slightly comminuted, that is splintered or crushed, and open. The surgery involved the use of surgical fixings known as Nancy nails. There were two of these and they were 3.5 millimetres in diameter. The wound was cleaned and closed.
The plaintiff was bedridden for the first four days after his surgery. After a further four days he was mobilised into a wheelchair and introduced to crutches. On the ninth day he was discharged from hospital. During his time in hospital after the first few days his leg was extremely painful whenever it was touched or moved, which was reasonably frequently.
He continued to use a wheelchair for six months after his discharge from hospital. It was eight weeks more before he was able to return to school and he started back half time. That lasted for about two weeks.
For his first few weeks at home he was largely confined to his bed and almost entirely dependant upon his parents for assistance. He required assistance with every activity of daily living.
For a period of about three months after his return to school he used the wheelchair to get to his classroom and then crutches inside the classroom. After he finally stopped using the wheelchair, he continued using crutches for a further two years. His recovery was not free from complications. In December 2001 his x‑rays revealed symptoms of an infection of the bone. He was placed on oral antibiotics which were continued until January 2003. His progress was closely monitored – at first bi‑weekly, then about monthly until May 2003. His attendance at the clinic then became less frequent but continued until 2008. He attended at an outpatient clinic for this purpose and travelled to those appointments with his parents.
While the plaintiff was admitted to hospital on various occasions his parents travelled to and from the hospital to provide the extra care and comfort required by a child of that age. They drove him to and from each of his outpatient visits. There were at least 50 such round trips. Each round trip was about 50 kilometres. The parties agreed that the kilometreage rate permitted by the Australian Tax Office at that time was 62 cents per kilometre. The plaintiff claimed a total of $1,250 (50 trips of 50 kilometres each at 50 cents per kilometre). The defendant was prepared to concede that an amount of two‑thirds of that ($850) was reasonable. In my view, the $1,250 including interest claimed by the plaintiff is entirely reasonable and I would award that amount for that item of loss.
The plaintiff recalled, in answer to a leading question, that in July 2002 he slipped on some grass while walking on crutches. He "re‑fractured" his leg. I have no doubt that he did fall in a way that caused pain and concern with respect to his leg. However, from the agreed chronology prepared by the plaintiff and the report of Mr Geddes, his treating orthopaedic surgeon, it would appear that there was an admission to Accident and Emergency at Princess Margaret Hospital on 3 April 2002. He did however develop further pain and tenderness in the area of his knee. It was determined that one of the Nancy nails that had been fixed in the bone was beginning to protrude. Surgery was performed on 3 July 2002 to deal with that problem. Prior to this surgery, for a period of three months, the plaintiff was experiencing considerable pain to the extent that he had difficulty even getting out of bed onto his crutches. Any movement of his leg produced pain. For a period of about a week after his fall on 3 April 2002, the pain was such that he was not able to use his crutches at all.
Following the surgery the plaintiff was again housebound for a few days before again returning to school on crutches.
In January 2003, as if the problem with his leg was not enough trouble in the life of a 12‑year‑old boy, the plaintiff began to experience regular headaches. In March 2003 this was diagnosed as a brain tumour. Fortunately the tumour was benign and in May 2003 it was removed. For a time following the removal of the tumour, and as a result of the surgery, the plaintiff experienced seizures every few days. As his medication was adjusted the problems eased to weekly then monthly seizures. In 2005 he became seizure free. The plaintiff has not required medication since 2007. Despite the anxiety that this episode must have provoked for the plaintiff and his family, on the evidence it seems that the brain tumour was a relatively minor problem in contrast to the problems caused by his leg. That is of some assistance in understanding how significant were the consequences of the leg injury.
In October 2003 a relatively minor fall from his bicycle caused him to be readmitted to Princess Margaret Hospital. Examination showed that he had an angulated fracture through the level of his previous fracture. The 3½ millimetre Nancy nails which had previously been used were now replaced with 4 millimetre nails. The plaintiff had a further hospital stay of eight or nine days. As might be expected, the re‑injury and its aftermath were extremely painful. When the plaintiff was discharged it was necessary for him to resume using crutches which he had given up about eight months before this accident. This incident caused a period of total incapacity of eight weeks followed by a partial incapacity of several months.
Prior to the accident, the plaintiff was showing real talent in athletics and team sports.
At age 8 the plaintiff had taken up cross-country running. It was an activity he would do every morning at school. He was selected by his school to compete in interschool competitions and on two occasions he placed in the top 10 out of 50.
The plaintiff's former baseball coach, Mr Wayne Brown, gave evidence. He said that the plaintiff had demonstrated real promise as a junior baseball player, and skill and courage playing Australian Rules Football.
Within a few months following his accident he attended his Year 5 camp. It was necessary for his mother to accompany him to help him with everything from showering and going to the toilet, to moving from one place to another.
Within three months of his release from hospital he took part in hydrotherapy, walking laps in the swimming pool. This was at a time when he was still in his wheelchair. He has, within the last few years, taken part in physiotherapy doing exercises such as walking stairs and stretches.
He maintained his interest in baseball and other sports. As a formerly active and talented athlete he found it difficult to sit and watch his friends play sport. He did not return to play baseball again until he was 15 years old. He has continued to play since that time for the Swan District team. However, he was and is limited in his ability to run bases and to field. He finds that he can run but not quickly and only in an awkward and uncoordinated way. He finds that he still lacks agility. Despite his difficulties with running he has maintained his hand/eye coordination and two seasons ago he received an award for his batting average.
He also started back at football at age 15. He played two seasons. He found however that he could not run or tackle. He was unable to keep up with the others. Given that he is a "left‑footer" he was unable to kick the ball any great distance. Nor could he jump to mark the ball. He was put on the bench quite often and usually only put into the game in the second half.
He no longer runs distances because the leg becomes painful after 500 metres. He is unable to participate in golf with his friends because the walking quickly causes his knee to become painful.

Medical evidence

Three medical reports were tendered by consent.
Mr A Geddes was the plaintiff's treating orthopaedic surgeon. He prepared a report dated 7 November 2005. It was based on a review of the plaintiff that took place on 30 May 2005. Mr Geddes described the history of the plaintiff's injury to that date in a manner that was consistent overall with the plaintiff's evidence. At that time Mr Geddes believed that the plaintiff was unlikely to be left with any permanent disability. He believed that the plaintiff's inability to run, jump or ride a bicycle would resolve itself with time. He did not see need for any further physiotherapy or any further treatment. He did not anticipate any increased likelihood of further fracture or degenerative change to the left leg.
A report of Mr Barrie Slinger, orthopaedic surgeon, dated 11 August 2008 was tendered by consent but Mr Slinger was also called to give evidence. He reviewed the plaintiff on 7 July 2008 having received copies of the inpatient notes, discharge summaries, x‑ray reports and what are described as "reports from colleagues from Princess Margaret Hospital, in particular a most helpful summary of the plaintiff's musculoskeletal injuries prepared by orthopaedic colleague Mr Tony Geddes … ".
The report reviews the history of the plaintiff's injury and treatment. Mr Slinger described the plaintiff's then present symptoms in the left leg as follows:
"He experiences weakness, pain and stiffness. In particular he has difficulty running fast or for long periods, and when running he does so with an awkward gait, feels that the left lower limb is weaker, painful if weight‑bearing is prolonged, at times for instance when negotiating stairs, the limb shakes, as it does if he attempts to hold it in an elevated position for any length of time.
In addition he has difficult crouching or squatting because of pain, cannot maintain that position for any length of time and kneeling is also restricted and jumping produces pain.
Lifting, as when bending to the floor to lift an object, he finds that he is weaker, primarily because of supporting and taking weight through the left lower limb, walking distance is said to be 30 minutes, at the end of which he will have a noticeable limp, which occurs at other times when he is tired or has been prolonged weight‑bearing. Similarly, riding a bicycle is limited, as is pushing a wheelbarrow and in doing so having to take weight through the right (sic) limb.
In addition, he is apprehensive with physical activities in general, including sports as well as riding his bicycle because of the potential possibility of re‑fracture."
Mr Slinger's description was generally consistent with the evidence that the plaintiff and his mother gave of his symptoms at the time of trial.
Mr Slinger described his physical examination of the plaintiff:
"… a pleasant fellow of slim build with good generalised muscle tone, who walked with a normal gait.
In the left lower limb there was obvious wasting of the thigh musculature as a whole, measuring 7.5 centimetres above the superior pole of the patella, there was a difference of 2 centimetres. There was a difference in limb length equality in the order of .5 centimetres.
At the left thigh there was a well heeled traumatic scar of some 2 centimetres diameter over the lateral aspect of the proximal thigh. Over the distal thigh on the medial aspect there was a surgical scar measuring 5 centimetres, and on the distal aspect of the lateral thigh, a further surgical scar measuring some 10 centimetres.
Tenderness was throughout those scars, in particular over the proximal scar on the lateral aspect …
At the left hip, movements were full with pain at all extremes, particularly flexion, and he had difficulty maintaining a straight leg raise, because of pain as well as weakness with shaking of the limb. Passive movements of the left hip were full, whist range of rotation was comparable to the right, external rotation was increased (60 degrees) internal rotation decreased (10 degrees), as compared with the right.
At the left knee there was no effusion, movements were restricted, 0 degrees – 125 degrees, as compared with the contralateral limb, 0 degrees – 140 degrees.
It was observed that he had difficulty in kneeling, crouching and squatting because of restricted movement at the left knee."
Mr Slinger does not anticipate a need for any other treatment other than an exercise program. He said however that while an exercise program might improve strength, function and mobility, it was most likely that the restricted movement which was observed was permanent. In his evidence in the course of cross‑examination in answer to a question as to whether or not a pronounced program over a period of time would reduce the disability the plaintiff experienced Mr Slinger said:
"Only if he was able to improve the strength in quadriceps. He is not going to change the movement in his knee, which is stiff or restricted, but if you could improve the strength in this knee and improve that wasting, that would improve function. But as it's nine years, I would be very surprised if he would show any improvement at this time."
Given that the plaintiff has been actively involved in physical activity including baseball, despite his limitations, Mr Slinger's last observation would seem to have considerable force.
As a result of his examination of the plaintiff, Mr Slinger concluded that the plaintiff had reached the maximum medical improvement and his present condition is permanent. He said that it was most unlikely that the plaintiff would not be restricted in his employment and that it was unlikely that the plaintiff would be capable of unrestricted heavy physical activities. He said that ideally the plaintiff would avoid prolonged standing, moving into confined spaces or having to squat, crouch or kneel for prolonged periods. In his evidence at trial he thought that while the plaintiff should be capable of lifting 15 or 20 kilograms that was not an activity that would be advisable for him to do "all day". I accept Dr Slinger's evidence.

The plaintiff was also examined by an occupational physician, Dr Alan Home, at the request of the defendant. Dr Home saw the plaintiff on 7 April 2009 and prepared a report that same day. The report was tendered in evidence and Dr‑Home was not required for cross‑examination.
The history that Dr Home obtained was in similar terms to those reported by Mr Slinger. So were the results of physical examination. Dr Home observed 1.5 centimetres circumferential wasting of the left thigh measured 10 centimetres above the patellae. This reflected he said "… a mild degree of functional impairment". He concluded that the plaintiff retains capacity "to perform full‑time work of a sedentary, semi‑sedentary and light manual nature". Dr Home concluded that the plaintiff might have difficulty with work requiring heavy lifting from ground level. He thought that it was reasonable to restrict the plaintiff from work requiring heavy lifting from ground level or other work requiring him to lift from a deep squatting position for prolonged periods, and he thought that the plaintiff was unsuited to work requiring frequent stair climbing such as work in the off‑shore environment. He thought it unlikely that the plaintiff would pass the medical requirements for work as a police officer but he thought that he would be able to work as a forklift driver, or receival officer in a store, or a mobile or fixed plant operator in the mining industry.

Loss of earning capacity

The submission for the plaintiff was that because of his residual disability he will be unable to work at several jobs to which he was inclined. This included wrought iron fabrication (for which he was offered an apprenticeship), electrical contracting, the police force, and working as a physical education teacher.
The submission for the defendant was that, in effect, the plaintiff would not have been capable of achieving several of the positions to which he aspired because he lacked the academic qualifications, in particular for the police service and the position of a physical education teacher, because "he had no prospect whatsoever of passing the tertiary requirements to get into that".
Counsel for the defendant pointed to the difficulty in prophesising what the future held for any 18‑year‑old.
The plaintiff left school at the end of Year 11 in 2007. He fell behind with his grades and he was told that he either had to repeat Year 11 or leave. According to the plaintiff his grades were "average" in Grade 10. Asked for the reason for this he said "I am not too sure, I just mucked around in class. I was, sort of, over school". Even in Grade 11 he was passing maths and getting a B in the theory side of physical education. He did poorly in English because, as he said "I wasn't doing my homework". He was failing religion and woodwork and a course called "Society and Environment". This last course, I assume, has something to do with subjects once known as history, geography or even social studies.
Prior to leaving school in Grade 11 the plaintiff did 120 hours of work experience with an auto‑electrician over the course of a semester. The work required him to attend from 8 o'clock in the morning until 5 o'clock at night every Tuesday. He found he had difficulty with squatting and getting under a car. He found that he had to sit on the ground to do things that other people could do from a squat.
As soon as he left school in 2007 he got a job as a checkout operator at a supermarket chain called "Farmer Jacks". He worked five hours a day for five days a week. He found that except for standing all day on his leg the work "wasn't too bad". He found his leg would become quite fatigued and would hurt just from standing. However, he was allowed to lean on the counter when the store was not busy, and he even sat down when no one was around. That job lasted for six months and ended because of a clash of personality with the manager.
A month and half later he found another job. He had been looking for an apprenticeship but there were none available so he tried a labouring job that became available. The job was with a firm that fabricated wrought iron. The work involved the installation of wrought iron gates at people's homes. The hours of work were 7.00 in the morning until 5.00 at night for five days a week. The plaintiff's job was to help the tradesman to lift gates onto the truck and then take them off the truck at the place where there were to be installed. He was effectively a trades assistant helping the tradesman to install gates.
After two weeks on the job the owner asked whether the plaintiff would undertake an apprenticeship at the beginning of 2009. However, the lifting was a problem for the plaintiff and he found that by the end of the day his leg became quite sore to the point that he had difficulty walking on it let alone walking and holding wrought iron gates. After three weeks on the job the employer asked "Are you sure this is the right job for you?". The plaintiff found while performing this job that climbing ladders was particularly difficult as it required him to place all of his weight on one leg at a time. He left the iron working job after one month. He left because he found that he was physically unable to do what was required of him. But for that he says that he would have stayed on and undertaken the apprenticeship. When he left that job he was earning $550 per week after tax.
He found another job turning timber into woodchips. This job required him to shift heavy timber from a pile and put it into a chipping machine. He lasted one hour at that job. He was unable to carry the wood. He said:
"When I lift stuff, I hold it to my right side so it doesn't bang into my left leg because it hurts so just the way I was doing it it was quite awkward and slowed me down a bit … I wasn't able to walk fast enough holding the timber … I was just knackered by the end of it."
Six months ago he found his present job as sales assistant at Bunnings. He helps customers and stock shelves. He has some limitations in this job, in particular standing on a step to stock higher shelves. He said that he "doesn't feel comfortable doing it" which I suspect is the residue of his earlier anxiety about falling and reinjuring his leg. The manager allows him, however, to sit on the ground to stock lower shelves so that he does not have to squat. He has some difficulty recovering shopping trolleys. He finds that he cannot push as many trolleys at the same time as the other workers because the pushing is done with the legs. He is required to work on the checkout and sometimes if he is required to stand for too long his knee begins to get sore. It seems that he is accommodated to some extent by being shifted from the register after a few hours to move onto something else like stocking shelves.
He works from 8.00 in the morning until 4.00 in the afternoon four days a week. The limitation of 30 hours per week is a result of the position that was available. It is not a limitation demanded by the plaintiff. For his 30 hours per week he earns $700 per fortnight after tax.
His plans at present are to continue working at Bunnings and to enrol in a drafting course at TAFE next year.
There was, unfortunately, no evidence led on behalf of the plaintiff that might have assisted with respect to the plaintiff's overall intelligence or vocational aptitude.
While it is the case that the plaintiff presently lacks academic qualifications, I do not accept that he lacks the intellectual ability to be able to complete high school and achieve some form of tertiary educational qualification if he sets his mind to do so.
I was impressed with the plaintiff as a witness. He seemed sensible, intelligent and mature for his age. That maturity may well be the result of what he has had to endure in the last seven years. However, despite his injury and the pain and difficulty it has caused him, he had the drive to return to baseball and football and the tenacity to persist with those sports despite the fact that he is conscious of his comparative lack of ability. Since he left school he has sought and obtained jobs including jobs that were physically demanding, despite his ongoing problems.
He has maintained regular employment. He has saved the proceeds of employment and has used them to purchase his own car and is currently saving for an overseas holiday. While he continues to live at home for the time being, that is hardly unusual for an 18‑year‑old in Western Australia in 2009. By his own account he has good computer skills and mathematical ability. I take him at his word that the problem that caused him to suffer bad grades in a number of courses and ultimately to leave school after Year 11 was a lack of motivation that led him to "muck around in class" and to simply fail to do assignments. However, he is now planning to enrol in TAFE to do a drafting course.
No evidence was offered on behalf of the plaintiff as to what salary he might earn on completion of a course such as that, particularly given his computer skills.
From the evidence before me, while the plaintiff may continue in his present employment to help fund his further education and otherwise pay his way, the probability in my view is that he will ultimately find work more to his satisfaction in terms of its demands upon him and its pay.
The plaintiff's father works as a supervisor for the City of Swan. In his own amateur athletic career he twice represented Australia internationally in baseball. The plaintiff's mother was, on the evidence, primarily responsible for running the home and raising four children. She now also works outside the home as a teacher's assistant. It was evident that she applied herself with great devotion when the plaintiff needed her help. The plaintiff had and has the example of his parents. In assessing the potential earning capacity of very young people it is conventional to rely on the occupations, attitude to life and work histories of parents and other relatives: Taylor v Bristol Omnibus Co Ltd [1975] 1 WLR 1054; Gowling v Mercantile Mutual Insurance Ltd (1980) 24 SASR 321; Bullock v Miller (1987) Aust Torts Reports 80-128 (68,982); Burford v Allan (1997) 68 SASR 217.
I am satisfied that in the near term, there will be some loss of earning capacity to the plaintiff, at least in the sense that there will be many physically demanding jobs that would be relatively high paying that will not be available to him because of his disability. My expectation, however, is that he will ultimately work mainly with his head and perhaps with his hands, rather than his back and legs. He will do so because he is able to do so and because his own character will require him to achieve something. Despite that I accept that the plaintiff's injury and residual disability has impaired his earning capacity and will over the course of his working life result in loss.
The plaintiff lost his position with the wrought iron manufacturer and his chance for an apprenticeship because of his residual difficulties. He could not perform the duties required of him in the wood‑chipping plant and had to give up that employment. In this case the defendant has accepted that between the time that the plaintiff left school and now, the plaintiff has suffered a past lost of income of $7,500 inclusive of interest. Each of those matters provides some evidence of impaired earning capacity. Using very rough calculations it would appear that the past loss occurred over a period of 18 months. Making some allowance for pre‑judgment interest the past loss would appear to equate to about $90 per week. Using the accepted multiplier of 835.85, the result would be $75,226. Using the plaintiff's discount of 15 per cent for contingencies, the resulting figure would be $64,000.
However, the issue does not strictly turn on a comparison between what the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. As Heydon JA (Mason P and Handley JA agreeing) said in State of New South Wales v Moss [2000] NSWCA 133 at [71]:
"Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities…"
The defendant's submission is as set out above, that the plaintiff's academic record meant that he would inevitably have been confined to some job that provided him only with a "basic wage component". The defendant's submission is that a global allowance of lost earning capacity, including superannuation should be assessed at $40,000. I accept that the nature of the evidence here means that it is very difficult to assess this head of damages otherwise than on a global basis but I reject the notion that the plaintiff would inevitably have been confined to relatively menial work. Accepting that any assessment of this kind is of its nature imprecise and indeterminate, an appropriate global award for lost earning capacity including loss of superannuation benefits, and making allowance for whatever vicissitudes positive and negative that the future holds in store for the plaintiff is $70,000.

General damages – pain and suffering - assessment

The assessment of damages to compensate a plaintiff for pain and suffering and the loss of amenities and enjoyment of life is a notoriously difficult exercise. There are many factors to be taken into account. I will describe the particular features of this case that in my view are important to the assessment of damages here.
First, the circumstances of the accident and injury here would have been particularly horrifying for a small child. I am satisfied that was in fact the case for the plaintiff and that the initial injury would have been very painful and distressing. Even with analgesics the plaintiff experienced considerable pain before and after surgery, during the time of his hospitalisation, throughout the period that he was housebound and later when he was mobilised to a wheelchair. The emergence of one of the Nancy nails caused him another lengthy period of pain and discomfort. During his adolescence he had several periods of near complete incapacity and was seriously restricted in the activities that he could do. The instability the injury produced resulted in at least two further accidents, one of them causing a significant re-injury at the same fracture site. All those matters produced in him, according to the evidence, an unhappy and unnatural fear of re-injury inconsistent with the nature of any normal boy and in particular apparently contrary to the nature of the plaintiff prior to the injury.
Given his level of activity prior to the accident, his disability was especially frustrating and difficult. It was undoubtedly mortifying for an 11‑year‑old boy to be transported to and from his classroom by his mother and to have her in full‑time attendance at his Grade 5 camp.
He has been left with a degree of physical disability. Although it may be described at being at the lower end of the scale for disability, it continues to restrict him from a range of pleasurable activities that he would otherwise have been involved in. According to the medical evidence while he may regain some strength in his quadricep, the restriction of movement in his left knee will continue to bother him and produce pain from over use. Those issues will remain with him throughout his life.
There was considerable evidence about the plaintiff's athleticism prior to the accident. In particular there was evidence about his prior all‑round skill at baseball. The plaintiff spoke of his disappointment at the loss of a childhood dream of playing professional baseball in North America.
I enquired with counsel for the plaintiff what precisely was sought to be made of the evidence of the plaintiff's skill and interest in baseball. In particular I enquired as to whether that evidence was somehow directed at the loss of chance of financial gain as a professional baseball player. Given the absence of any evidence at all that bore on the remuneration of professional baseball players, the amount of competition for entry into professional baseball leagues and how the skill levels demonstrated by a 10½‑year‑old boy could be translated into a quantifiable chance, counsel for the plaintiff sensibly did not pursue that line. It was argued instead that the plaintiff had lost something which would have given him considerable enjoyment of life. That was the opportunity to play baseball at a very high amateur level.
I find that given the plaintiff's obvious high motivation including the example of his father, the plaintiff's demonstrated skill both before and after his injury it is probable that he would have in fact played baseball at a high amateur level. In my view he has lost a chance to play baseball representing his state or perhaps his country. Even putting aside that chance that he lost, he has undoubtedly lost the ability to play amateur baseball locally with a level of skill that would have given him real pleasure for many years. Of course he has not entirely lost the ability to play baseball. He continues to do so with the limitations that I have described above. What he has lost is the difference between being able to play at a high level of skill as against his now limited ability. It is nonetheless a real and substantial loss of enjoyment.
Taking into account all of the circumstances I have referred to, in my view a proper award of damages under this head is $65,000. For the purposes of calculating Court Order interest I would attribute $35,000 of that amount to the loss occurring up to the date of trial. I allow pre‑judgment interest at a rate of 3 percent for 7 years and 10 months, for a total of $8,225.

Summary

In summary then I find for the plaintiff and award damages as follows:
General damages for pain and suffering and loss of
amenities of life   $65,000.00
Interest on past award for general damages for pain
and suffering    $8,225.00
Future loss of earning capacity including loss
of superannuation benefits $70,000.00
Past loss of income   $7,500.00
Past voluntary services  $7,000.00
Special damages    $18,587.40
TOTAL$176,312.40