De Beer v The State of New South Wales

[2009] NSWSC 364

CITATION:	De Beer v The State of New South Wales and Anor [2009] NSWSC 364 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 March 2009, 17 March 2009, 18 March 2009
JUDGMENT DATE :	11 May 2009
JUDGMENT OF:	Schmidt AJ
DECISION:	Proposed Orders: 1. Verdict for the plaintiff. 2. An order for damages in favour of the plaintiff, calculated in accordance with this judgment. 3. The defendants to pay the plaintiff's costs of the proceedings 4. Verdict for the first defendant on the cross claim. 5. The first defendant is entitled to an order against the second defendant in an amount reflecting 50% of the damages ordered in favour of the plaintiff and an order of costs on the cross claim. The parties are to bring in short minutes of order to give effect to the judgment.
CATCHWORDS:	TORTS - negligence - dangerous and injurious things, etc - electric shock - duty of care - neurocognitive and psychological injuries suffered as the result of electric shock - concurrent evidence - damages
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Bresatz and Another v Przibillai and Another (1962) 108 CLR 541 Fuller v NSW Department of School Education and Training [2004] NSWCA 242 James Hardie and Coy Pty Limited v Roberts and Another (1999) 47 NSWLR 425 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Najdovski v Crnojlovic [2008] NSWCA 175 Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64 The Commonwealth of Australia v Introvigne (1981) 150 CLR 258 Wynn v New South Wales Insurance Ministerial Corp (1995) 184 CLR 485
PARTIES:	Plaintiff: Mr Michael De Beer First Defendant - The State of New South Wales Second Defendant - Outdoor Education Australia Pty Ltd
FILE NUMBER(S):	SC 14894/08
COUNSEL:	Plaintiff - Mr MI Bozic SC with Mr J Downing, counsel First Defendant - Mr PJ Menary, counsel
SOLICITORS:	Plaintiff: Turner Freeman First Defendant - Hicksons

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

SCHMIDT AJ

Monday, 11 May 2009

14894/08 MICHAEL DE BEER v THE STATE OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HER HONOUR: These proceedings, commenced in the District Court in 2002, concern injuries suffered by the plaintiff Michael De Beer, as a year 11 high school student. In May 2001, he attended a camp at Tea Gardens known as the Aussie Bush Camp, conducted by the second defendant, Outdoor Education Australia Pty Ltd. Mr De Beer was then attending St Ives High School, a school conducted by the Department of Education. The camp was arranged by the School for year 7 students. The School required Mr De Beer to attend the camp as a year 11 peer support leader. It was not in issue that on 29 May 2001, while at the camp, Mr De Beer received an electrical shock when he picked up an electrical power board, while he was editing a video he had taken of camp activities, using equipment provided by the second defendant.

2 There was no appearance at the hearing for the second defendant and no orders were sought against it by Mr De Beer. There was a cross claim against that defendant, brought by the first defendant. The orders finally pressed against the second cross defendant were orders that were argued to reflect its culpability for what had occurred, assessed at a level of 50 - 75%.

The issues

3 The parties agreed that the issues necessary to be decided in the proceedings were:

1. Did the First Defendant satisfy its duty of care by appointing a third party to run the school camp and relying on that third party to exercise reasonable care in running the camp?

2. Was it a breach of the First defendant’s duty of care for the Plaintiff to have been permitted too use a faulty power board without the First defendant making any enquiries or conducting any examination as to its safety?

3. What physical and/or psychological injury/ies has the plaintiff suffered as a result of the electric shock?

4. Was the plaintiff’s dysthymic disorder caused by or contributed to by the electric shock which occurred on 29 May 2001?

5. What is the plaintiff’s likely prognosis and what are his likely work prospects? And what would they have been but for the injury?


The evidence

4 Evidence was called from Mr Michael De Beer, his mother Mrs Evedne De Beer, fellow students at the time, Ms Sarah Mitchell and Ms Kim Chan; Mr Leonard Hedges, Director of Camping Ministries for Crusader Union of Australia ('Crusaders'); Mr Andrew Reeves, Director of the Galston Gorge Conferences and Recreation Centre, Crusaders and Mr Peter Johnston, Business Manager of Scouts New South Wales ('Scouts'). Various medical reports were tendered and concurrent evidence was given by Dr John Champion, psychologist and Dr Peter Klug, Forensic Psychiatrist; and by Dr Wayne Reid, Clinical Neuropsychologist and Dr Wendy Roberts, Clinical Psychologist. Ms Michelle Danforth, vocational assessment expert and Mr Ross Girdler, Rehabilitation Counsellor, gave expert evidence in relation to Mr De Beer's employment prospects and options, his impediments and related matters. They and various lay witnesses were not required for cross examination.

5 Because of the way in which the issues between the parties were developed and argued, it is necessary to pay close attention to the evidence as to Mr De Beer’s health before and after the accident, as well as his performance at school, his social interactions and his working history after he left school.

6 Mr De Beer’s evidence was that he received an electric shock one evening at the camp, while he was editing a video which he had shot, using equipment located at a movie theatre, which he had been shown by one of the adults working at the camp. The video equipment was plugged into a power board, lying on the ground under the table at which Mr De Beer was sitting. He worked by himself until he was joined by Emma Hayman, another year 11 student. She left later with a teacher, to go and get his dinner. Ms Hayman returned with Ms Chan and Ms Mitchell, bringing dinner which Mr De Beer then ate.

7 When he returned to his editing work, Mr De Beer leant down to unplug a piece of equipment. He picked up the power board, his fingers curling underneath the board. He immediately felt a powerful shock. Initially he could not release the board. When he was able to let go he threw the board to the ground. He was still sitting down and may have called out when he felt the shock. He then said to Ms Hayman ‘I think I have just been electrocuted’. Her initial reaction was to laugh and he said ‘Seriously, I think something just happened’.

8 Mr De Beer began to shake and felt pins and needles and tingling in his hands and feet. Someone turned the power board off and he turned the board over. He saw that it did not have a back cover and he could see exposed wires. He believed that he must have touched a wire.

9 When he was asked if he felt 'okay', Mr De Beer asked ‘Can you go and get some help’ because he was not feeling well. Ms Chan and Ms Mitchell left and returned with two teachers and the man who had earlier brought him to the theatre. They lifted him to the ground and covered him with a jacket. He became very distressed, feeling ‘a terrible tingling feeling and severe pins and needles in my hands and feet’. He was shaking uncontrollably.

10 An ambulance attended, but Mr De Beer was not taken to hospital. He believed that he said that he did not want to be taken to hospital and that he was told he would only be monitored there. Some tests were conducted and the ambulance left. He found that he was unable to walk without assistance and so he was helped to a car and taken to the accommodation area and sat in a shower. He had a severe headache and was still shaking. After the shower he was carried to bed, but had difficulty sleeping. The headache and shaking continued. Someone sat with him, but he could not remember who.

11 On waking the next day, 30 May 2001, he still had problems walking, a headache, tingling and pins and needles. He completed an accident form and left the camp that day by bus with the other students. He did not participate in camp activities that morning, but was only able to sit and watch. On arrival back in St Ives he could walk, but was still unsteady on his feet, with other symptoms persisting.

12 Mr De Beer saw his GP, Dr Resnekov, that afternoon. He took a few days off school, before returning the following Wednesday, after seeing Dr Resnekov again. He was referred to various specialists. His symptoms persisted and Mr De Beer also began to notice some difficulties with memory and concentration. He began having problems at school.

13 Mr De Beer had painful paravertebral injections in his neck in July, but was dizzy and in severe pain. His symptoms continued, although by August his shaking had become more intermittent. He was still suffering from constant headaches, tingling in his arms and feet and memory problems. He had ongoing difficulties at school and began using a notebook and later a diary, to write things down that he needed to remember. He had difficulty sleeping, which gave rise to problems of exhaustion and difficulty concentrating. In September 2001, he saw an educational and clinical neuropsychologist, Dr Irvine, for the first time.

14 By the end of 2001, Mr De Beer was experiencing shaking only occasionally, tingling intermittently, but constant headaches and problems with memory and concentration continued. At the time Mr De Beer swore his affidavit in December 2008 and when giving his oral evidence, he still had a problem with constant headaches, although the tingling had disappeared and he only occasionally experienced shaking. While he still had problems with memory and concentration, he had developed strategies to help him remember. He had also experienced problems with depression, for which he continued to receive treatment and was taking medication. He was under the care of a psychiatrist.

15 Mr De Beer participated in an accelerated academic programme at school. In 1999, he sat for his School Certificate while in year 9. He began studying year 11 English and biology subjects in year 10 and was due to complete them and to sit for his HSC in those subjects in year 11 in 2001. In that year he was studying 3 unit English, 2 unit Modern History, 2 unit Maths and 2 unit Biology. He was due to sit the HSC trial in English and biology, not long after 29 May 2001.

16 After the accident he began to experience difficulties coping with school and his social life. His academic performance deteriorated. He found difficulty in recalling facts and figures. With the support of Dr Irvine, he later applied for and was given special consideration for misadventure in the HSC subjects he undertook in 2001. Mr De Beer did not perform as well as he had expected in either of these HSC subjects in the exam later that year.

17 Mr De Beer’s difficulties continued. He attended a two week camp conducted by the Venturer part of the Scouting movement in January 2002, at which he successfully obtained a student pilots license. He experienced significant difficulty with the coursework, telephoning his mother repeatedly in tears, but with considerable assistance from the tutors, who gave him a number of opportunities to attempt components of the course, he achieved the qualification and successfully completed a three minute solo flight. He described the effort as exhausting. He never attempted to fly again.

18 In 2002, Mr De Beer dropped Modern History, a subject he had coped well with before his accident and changed to Design and Technology for his HSC. He reasoned that with his ongoing symptoms, he should concentrate on subjects which required less rote learning and memory, which he found increasingly difficult to deal with, in order to concentrate on subjects which had a more practical bent. He also dropped 4 unit English and 2 unit Maths, then taking up General Hospitality and General Maths subjects. He did not attempt to repeat 3 unit English or Biology in that year’s HSC exams, as he felt he could not cope with the additional work which would have been involved.

19 With his HSC results in 2001 and 2002, Mr De Beer achieved a UAI mark of 81.9. Before the accident he had anticipated achieving a mark in the mid 90s or above. With recognition for his misadventure, his UAI was scaled up to 86.9. Before the accident Mr De Beer had been contemplating a career working with children. He had considered primary school teaching, or if his UAI was high enough, becoming a doctor and eventually a paediatrician.

20 Mr De Beer applied for and was accepted at Macquarie University in a Bachelor of Arts/Diploma of Education course. He did not take up the offer in 2003, believing that he could not cope with the work which a University degree would require. He hoped to recover sufficiently so that he could take up the offer later. He has never done so.

21 In 2003, Mr De Beer successfully applied for an Ian Holt Memorial Fellowship at the Crusaders and while there employed, completed an internally conducted Certificate III in Outdoor Education with some difficulty. (Crusaders is a registered training organisation.) He became a trainee camp leader and continued working at the Crusader Union, being promoted in 2005 to training coordinator. He resigned from that employment in March 2008.

22 In 2004, he completed a Certificate IV in Assessment and Workplace Training, again with some difficulty. This qualification was also offered by the Crusaders. Mr De Beer had difficulty with this further education because of ongoing problems with memory and concentration. He required considerable assistance and had to make a number of attempts at the theory side of the course, before he was judged competent in the required skills, so that this qualification could be awarded. He found the practical parts of the course easier to master. He also obtained a First Aid certificate and later, a qualification which permitted him to train others in first aid. These qualifications also required competence to be demonstrated. Mr De Beer attempted, but failed another more theoretical course conducted by the Crusaders in theology. He updated one of his qualifications at TAFE, after receiving special consideration.

23 During his employment with Crusaders, Mr De Beer experienced ongoing problems with headaches, memory, concentration and tiredness and began receiving treatment for depression. He received ongoing medical and psychological treatment, a variety of medications being prescribed. None of the treatment had successfully resolved his ongoing problems.

24 In 2008, it was proposed that his work at Crusaders would be restructured. To that point, Mr De Beer had had an understanding employer, but he felt that he could not cope with the restructure proposed, which would have involved him in more office work and less time working on outdoor programs. He resigned from his employment in February 2008.

25 In June 2008, he took up employment with the Scouts, initially working full time. He found it increasingly difficult to work full time hours. His problems had still not abated and he came to conclude that he could no longer work full time. He reduced his work to three days a week in October 2008 and was still working on that basis, when he gave his evidence.

26 While he still attends church, his involvement in church activities declined after the accident. He found he could not cope with these activities, as well as work at Crusaders. Before he took up work with Crusaders he worked once a fortnight as a cleaner at the church. Since leaving Crusaders he has done a little voluntary work there.

27 Mrs De Beer, Ms Chan, Ms Mitchell, Mr Hedges and Mr Johnston gave evidence corroborative of that given by Mr De Beer.

28 Ms Chan and Ms Mitchell were both with Mr De Beer when he received the electric shock at camp. They described his distress and reaction to the shock he received when he picked up the power board. Ms Mitchell recalled that when he was initially asked if he was 'okay', Mr De Beer sat saying nothing, until he began crying and shaking a few minutes later, saying that he had tingling all over his hands and feet. Ms Chan’s recollection was that that she heard Mr De Beer cry out and that he said he had got an electric shock. Her evidence also was that when asked if he was alright, that there was a short pause and that he then said that he did not feel too well and that he could feel pins and needles in his arms and feet. He did not look well and started crying. She and Ms Mitchell left to get help.

29 Ms Chan and Ms Mitchell’s evidence was that on their return, Mr De Beer was lying on the ground under some jackets. Ms Chan described him as shivering and shaking and very upset, complaining about pins and needles. He was wrapped in a silver blanket when the ambulance arrived and she then left and did not see him again that night.

30 Ms Mitchell had been in the gifted and talented stream at the School with Mr De Beer since year 7. She described him as bright, hardworking and normally ranked at the top of the classes they shared and receiving multiple academic and school service awards. Those awards were in evidence. Ms Mitchell was also in the accelerated HSC stream and recalled that Mr De Beer was very good at both English and History, which they both took. She also described Mr De Beer as heavily involved in extra curricular activities at school before the accident.

31 Ms Mitchell noticed significant changes after the accident. Mr De Beer complained of problems with his study and his memory. He told her he found it much harder to do his school work. Her impression was that he was worried and anxious about how he was coping.

32 Ms Chan had also been in the gifted and talented stream with Mr De Beer. Her description was similar to that of Ms Mitchell. She described Mr De Beer as a very good student academically, towards the top of the classes which they shared, happy and friendly and heavily involved in extra curricular activities both in school and outside.

33 Ms Chan also noticed a significant change after the accident. She described Mr De Beer to have become a different person. He began to have trouble in History and later dropped the subject. He appeared to become less focussed and motivated and had trouble with concentration. His social skills suffered and he became more introverted, quiet and less involved in extra curricular activities. Her impression was that he was trying to go on as if everything was the same, putting up a public façade that everything was okay, but he seemed to struggle with school and life in general in a way that he had never done before the accident.

34 Mrs De Beer’s evidence was to similar effect, namely, that there had been a very marked alteration in Mr De Beer, after the accident. Her evidence demonstrated the significant level of his academic achievement before May 2001. In evidence were his reports and numerous awards, with his placement in the gifted and talented stream from year 7 documented. Mrs De Beer explained the level of his extra curricular activities outside school before the accident, with involvement in Cubs, Scouts and Venturers, Christian Fellowship, and his attendance at Church, where he also taught Sunday school.

35 Mrs De Beer described her son on his return from the camp as fragile and unwell, tired, complaining of a headache and pins and needles in both arms and shaking a lot. He was taken that day to see the family GP, Dr Resnekov.

36 Mrs De Beer kept notes of her observations of Mr De Beer’s condition over the following months. On 31 May he was still tired, cold, shivery and his hands were shaking and he complained of a bad headache. He stayed home that day and the next, because the symptoms continued. He attempted to do some homework, but was upset and frustrated, not being able to concentrate. He said he could not remember things.

37 The symptoms continued over the weekend and he returned to Dr Resnekov on Monday, 4 June. Dr Resnekov wrote to the School advising of the difficulties which Mr De Beer was experiencing, but his note did not mention any headache. Mrs De Beer’s evidence was that Mr De Beer was anxious to go to school because he was pursing two HSC subjects that year.

38 Mrs De Beer said that the symptoms continued in June and that Mr De Beer missed days of school when he felt unwell, or had medical appointments to attend. Her observation was that Mr De Beer was pushing himself hard, but he seemed slow when doing his homework, experiencing difficulty with memory and concentration. He became frustrated and agitated, complaining of tiredness and headaches and that he could not remember how to do work.

39 In July, his symptoms continued. He saw Dr Aggarwal, a neurologist, after an urgent referral arranged by Dr Resnekov. He was given nerve block injections which he found painful and which created problems with walking. He refused to see Dr Aggarwal further and sought treatment from an osteopath and chiropractor on a number of occasions. His problems with his school work and homework continued. The osteopath provided a written report suggesting that Mr De Beer was suffering from a temporary cognitive deficiency, manifesting in diminished academic ability.

40 In August, Mrs De Beer and her husband met with the Principal and school counsellor to discuss Mr De Beer’s school results. They were given the school report which was about to be released, which suggested that he was doing poorly since the accident. The school counsellor suggested that he see a neuropsychologist and they discussed strategies to help Mr De Beer cope and possibly making an application for misadventure for the HSC. He was referred to Dr Irvine.

41 Mr De Beer was frustrated by his ongoing symptoms and in September, he became very upset one evening at his continuing difficulties. He saw Dr Irvine for the first time in September. There was five hours of neuropsychological testing, resulting in a further session of testing later in September.

42 Mrs De Beer had to discuss with Mr De Beer his attempts to maintain both his academic work and his extra curricular activities, in the face of his ongoing problems. She felt that he was pushing himself too hard and not coping. She thought he was having significant problems, but that he was doggedly determined to pretend everything was okay and that he was coping, when he was not. He told her that Sunday School and Scouts helped him cope and made him feel like he was still capable, saying ‘If I only had school work which I struggle with anyway, life would not be worth living’.

43 Mrs De Beer received Dr Irvine’s report at the end of September. He was very concerned and suggested that they see a counsellor with Mr De Beer. An arrangement was made for Mr De Beer to see a Mr Durant in mid-October. Mr De Beer was very upset about this arrangement being made without his prior agreement and demanded to see Dr Irvine's report, but then changed his mind. When he did read it later, he became very distraught, wanting to know why he had been injured and why he wasn’t healing. Mr De Beer undertook counselling with Mr Durant.

44 Mr De Beer’s symptoms continued in November. Various medications were attempted under Dr Resnekov's care, to deal with the ongoing headaches. Mr De Beer undertook a work placement in the hospitality industry, still troubled by his symptoms. He began to speak of feeling depressed and not coping.

45 Since May 2001, Mr De Beer’s marks had dropped off and he had gone from being motivated, happy, involved and academically gifted, to being moody, withdrawn, depressed and having great difficulty with memory and concentration. Mrs De Beer described spending huge amounts of time with Mr De Beer, attempting to help him with homework and assignments, reading and discussing texts which he had difficulty remembering and trying to help him cope with his problems with concentration and frustration. His shaking had disappeared, but he easily became fatigued and frustrated. He was emotionally unstable and his condition had an effect on his relationship with his siblings, his family and friends. He became less sociable and more withdrawn. At the end of 2001, unlike earlier school years, he received no academic awards, but an award for citizenship.

46 While Mr De Beer was at the flying camp in January 2002, his family was in Grafton. Mrs De Beer received numerous phone calls from Mr De Beer who complained of his headaches and problems concentrating. He didn't believe he would succeed, but persisted with the course. He was very excited when he finally succeeded and got to fly solo.

47 In February, Mr De Beer decided to drop History, because he found the workload too great to cope with, even though he had received a lot of help from his teachers. He was also advised to drop 4 unit English, where he was also having trouble. He turned to more hands on subjects.

48 By April, his relationship with his younger brother had come under increasing tension. Mr De Beer had more difficulty in even making simple decisions and this tended to make him distressed and agitated. In May, he dropped from 2 Unit Maths to General Maths after Mrs De Beer met with the Principal and head of Maths.

49 The School then asked Mr De Beer’s teachers to provide student profiles on his academic performance. In English, he was assessed as having great difficulty in going beyond simple story telling. He was not coping. In Modern History his teacher assessed his performance to have deteriorated enormously, not coping with simple work, let alone complex analysis, at which he was previously very good. He could not remember information he could remember previously, he was not understanding concepts, was easily distracted and frustrated and his writing ability was considerably reduced. His Maths performance was also assessed as being below his capability. In Biology his major problem was described as memory, having lost the ability to remember a range of facts. In Hospitality, his theory had not yet been tested, but his practical performance was judged to be good, but he was observed to get tired and listless.

50 Mr De Beer’s symptoms continued between July and September. He was concerned about his performance in the HSC, but he found General Maths easier to cope with, because he did not have to remember formulas, they were provided. His social interaction with friends declined. In December, he told his parents he had decided not to go to university the next year, but to get a job. Before the accident he had planned to go to university and was keeping his options open, considering medicine, teaching business or even entertainment.

51 Mrs De Beer’s husband worked at Crusaders and he suggested that Mr De Beer consider applying to become a trainee and working with kids on camp for a year. This led to his successful application and employment there.

52 Mr De Beer's symptoms continued when he took up that work and Dr Resnekov tried other medications to control his headaches. Mr De Beer continued living at home. Mrs De Beer observed that he tried hard to get to work and to make out that nothing was the matter, but that she saw that he was not coping very well. He often came home emotional and upset. He was well organised in keeping notes, otherwise he would miss appointments, social functions or forget to pass on messages, things he had not done before the accident.

53 Mr De Beer’s headaches have continued and even became worse. He has also become quite depressed. Over the last eighteen months he had told Mrs De Beer about having suicidal thoughts on about six occasions. On several occasions she has taken the car keys from him. He was prescribed a variety of drugs to treat depression, by psychiatrists who had been treating him. He is regularly treated now by a Dr Yenson, consultant psychiatrist. He had a girlfriend for some years, but the relationship broke down. In October 2008, after taking up employment with the Scouts, he had reduced his work to 3 days per week, which seemed to help him cope better. He quite often sleeps during the day, but headaches, problems with tiredness, memory and concentration continue.

54 Mr Hedges was the Director of Summit at Crusaders, who employed Mr De Beer in 2003 as a trainee and as a Training Co-ordinator in 2005. From October 2005, Mr De Beer reported directly to him and they shared an office. Mr Hedges had heard of Mr De Beer’s accident, before he met him. He found him to be an honest and genuine man, who tried his best. Mr De Beer had told him at various times of the physical and psychological symptoms from which he was suffering.

55 Mr Hedges explained that during his employment Mr De Beer often complained of headaches and that medication was not helping him. On several occasions he did not attend work, because of the severity of a headache, or he went home from work, with a headache. On many occasions at camps, Mr De Beer had to lie down for short periods, to rest. On some occasions he observed Mr De Beer to be very weary when he came to work.

56 Mr De Beer had told Mr Hedges of his problems with his memory from the outset. While Mr De Beer was a trainee, camp directors reported that he was having problems remembering things he had just read and having to reread something, in order to answer a question. He observed Mr De Beer compensating for this difficulty by being organised, but there were occasions when he forgot to do things which formed part of his job. This occasionally caused problems at work for guest groups.

57 Mr Hedges had also observed that Mr De Beer was emotionally frail on occasions, getting upset about routine parts of his job, which he would otherwise expect him to handle without problem. The frequency of such occasions increased later in Mr De Beer’s employment. Mr De Beer had told him that he was suffering from depression and that he was being treated by a psychiatrist, who was treating him with antidepressants. While Mr De Beer was trying to be honest about his problems, he found it difficult to talk about his state. Mr De Beer told Mr Hedges that he tried to hide his problems from other staff, by putting on a front of normality. He found it difficult to admit that anything was wrong

58 Mr Hedges tried to be flexible at work to accommodate Mr De Beer’s problems with fatigue, memory and depression. Weekend work at camps allowed him to accrue days in lieu, which he used to attend doctors' appointments, instead of taking sick leave. His sick leave record was good, but did not reflect the time he actually took off work. Mr Hedges believed that but for his flexibility and the opportunity to use leave entitlements, Mr De Beer would have had great difficulty working, if he was not allowed to make up hours when he was able. His performance deteriorated before his resignation in March 2008.

59 While Mr De Beer continued to perform some aspects of his work well, receiving positive feedback from first aid courses which he conducted, being one example, he had problems keeping other aspects of his work to required standards, record keeping required for certain registration purposes, for example. When he resigned Mr De Beer told Mr Hedges that he was having problems coping and that he did not believe that he could cope with proposed changes, which would have involved him in more office work and less time on camps. Mr Hedges did not believe that Mr De Beer would have been able to continue in his job as long as he had, without the support he had received at work.

60 Mr Johnston’s evidence was that he had employed Mr De Beer as the Activities Co-ordinator in June 2008, at the Baden Powell Scout Centre. He was aware of Mr De Beer’s accident before he employed him. He had a high opinion of Mr De Beer, based on his earlier knowledge of him, through his involvement with Scouts. He believed Mr De Beer to be capable and competent. After a couple of months Mr De Beer asked to reduce his working week to three days, because he was not coping. Mr Johnston agreed because he did not want to lose Mr De Beer as an employee.

61 Mr Johnston had become aware of Mr De Beer’s physical and mental problems at work. He observed Mr De Beer frequently to be very tired when working five days a week. Since reducing to three days, there had been some occasions when Mr De Beer has worked additional days. He has been particularly exhausted if he works more than one day in a row. After three consecutive days Mr De Beer has been completely exhausted. Mr Johnston had seen tiredness to the point of Mr De Beer having difficulty concentrating and having difficulty following a discussion.

62 Mr Johnston has tried to be as flexible as possible to let Mr De Beer have time off when he needed it. Mr De Beer did not tell him that he was suffering from depression. He learned of this from another staff member, but he thought that this explained some of the problems he had observed. Mr Johnston had a high opinion of Mr De Beer, explaining that he did a very good job co-ordinating activities and related well to children. He would be keen to promote Mr De Beer, but for his reduced hours and problems with tiredness and concentration.

63 On Mr Johnston’s evidence those problems presently precluded Mr De Beer's promotion to Activities Co-coordinator for New South Wales, which would have a starting salary of $50,000, with progress potentially available to $90,000 per annum.

64 Mr Reeves was called by the defendant. He was employed as the Galston Gorge Conference and Recreation Centre Director at Crusaders. He had worked with Mr De Beer when they both worked as camp leaders at camps where he was mostly the Director and Mr De Beer one of 5 or 6 leaders of groups. He had limited contact with Mr De Beer once he became the Trainer. He could not recall Mr De Beer having any problems with tiredness or concentration and Mr De Beer had never approached him with such a complaint. His impression was that Mr De Beer was a good leader.

65 On Mr De Beer's evidence he had never discussed his problems with Mr Reeves. He did not want everyone to know of his problems, which he discussed with Mr Hedges, who knew how he was dealing with them.

The first and second issues


1. Did the First Defendant satisfy its duty of care by appointing a third party to run the school camp and relying on that third party to exercise reasonable care in running the camp?

2. Was it a breach of the First Defendant’s duty of care for the Plaintiff to have been permitted too use a faulty power board without the First defendant making any enquiries or conducting any examination as to its safety?

66 The first and second issues initially identified by the parties as requiring determination were largely resolved during the course of the hearing. The State finally accepted that it owed a non delegable duty of care for Mr De Beers’ safety while at the camp (see The Commonwealth of Australia v Introvigne (1981) 150 CLR 258 at 270). It also accepted that together with the second cross defendant, it was an occupier of the camp at which Mr De Beer was injured. That concession was given consistently with the approach of the Court of Appeal in Fuller v NSW Department of School Education and Training [2004] NSWCA 242, where it was observed at [29]-[31]:

29 There was no evidence that the principal had direct knowledge of the defective state of the ladder but the respondent should have had a system in place to see that all equipment was in proper condition. There was no evidence that it had any checking system for equipment.

30 I do not think that the respondent can avoid liability by blaming the appellant. It owed the appellant a non-delegable duty of care. It had the responsibility to see that a defective ladder was not present in the assembly hall where it could be, and indeed was, used.

31 The facts are inescapable that the respondent provided the appellant with defective equipment which he, unsurprisingly, used. The defective ladder should not have been in the assembly hall virtually inviting use. There was no explanation advanced by the respondent of why the defective ladder was in the hall or why it was not removed.

67 There can also be no question that the camp was conducted by the second cross defendant and that it had liability for the defective power board which it supplied and which was being used to power the equipment being used in the editing work Mr De Beer was undertaking. It was properly accepted by the State that it, too, had liability in respect of that faulty equipment, which caused the electric shock which Mr De Beer suffered.

68 As between the defendants there remained a question as to what orders should be made against the second cross defendant. I will return to that question below.

The third and fourth issues

69 It is convenient to deal with these issues together. They were:

3. What physical and/or psychological injury/ies has the plaintiff suffered as a result of the electric shock?

4. Was the plaintiff’s dysthymic disorder caused by or contributed to by the electric shock which occurred on 29 May 2001?

70 The resolution of these issues requires consideration of the controversies amongst the medical experts, in light of the other evidence led at the trial. There was a large measure of consensus reached among the experts, but two broad areas of disagreement. As Dr Champion explained it, the facts which led him to one conclusion, led Dr Klug to quite a different one.

71 Firstly, there was disagreement as to whether Mr De Beer had suffered the neurocognitive damage claimed as the result of the electric shock. Secondly, while it was common ground that Mr De Beer has a dysthymic disorder, that is, a state of chronic depression, there was disagreement as to its cause.

72 What Dr Klug and Dr Champion were unable to agree about was whether the dysthymic disorder had been caused by the electric shock, that being Dr Klug’s opinion, or by constitutional factors, that being Dr Champion’s opinion, so that it was likely that Mr De Beer would have developed a dysthymic disorder, even without the electric shock. They also disagreed about whether there was convincing evidence of neurocognitive deficit.

73 While Dr Reid and Dr Roberts agreed that there were neurocognitive problems, what they were unable to agree about was whether or not there was any element of underperforming on Mr De Beer’s part, in relation to testing of his impairment and whether factors other than the electric shock had contributed to his reaction to that shock.

74 It was Dr Roberts’ opinion that underperforming was a possibility that required consideration and that the contributing factors to Mr De Beer’s psychological injuries and neurocognitive problems were primarily emotional, they being the result of a distressed reaction to the accident, rather than the result of the electric shock itself. Dr Roberts clarified at the hearing that it was not her view that the electric shock had no causative role at all. She accepted that Mr De Beer's problems and the shock were linked, given their proximity in time. It was her view, however, that Mr De Beer had initially had problems with anxiety and depression after the accident, which had been underestimated and which had later developed into a dysthymic disorder.

75 Dr Reid’s view was that Mr De Beer’s problems were the direct result of the electric shock. His neurocognitive symptoms arose initially after the accident; they were persistent and the result of disruption to his brain function, particularly those areas of the brain which control memory. There was further injury due to the psychological impact of the injury and the early neurocognitive problems which Mr De Beer experienced.

Conclusions on the parties' cases and onus

76 It was the first defendant's case that the injuries which Mr De Beer continued to complain about, so long after the minor electrical shock which he received, were so serious as essentially to be unbelievable. It followed that his evidence had to be approached with caution. Care had to be taken to consider the evidence of possible malingering, as well as evidence of his pre-existing disposition to the problems from which he continues to suffer.

77 It was the plaintiff’s case that where reliance is placed on pre and post accident conditions in support of causation, there is a considerable evidentiary burden on a defendant, to adduce evidence capable of displacing the prima facie inference. Reference was made to Watts v Rake (1960) 108 CLR 158, where the High Court considered the onus falling on a defendant who seeks to establish that a pre-existing condition, rather then the consequences of an accident, caused an injury. In Purkess v Crittenden (1965) 114 CLR 164, this was further explained at p 168:

... where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake [(1960) 108 C.L.R. 158] was essentially concerned.

78 In this case, I am satisfied that the onus falling on the plaintiff to make out a prima facie case that his injuries resulted from the defendants' negligence was met. It followed that an onus fell on the defendants to establish a basis for the view that Mr De Beer’s illness and injuries would have been contracted in any event, even if the accident had not occurred. That onus was not met. I am satisfied on the evidence, for reasons which will become clear, that this was not shown to be a situation such as that considered in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, where it was established that the "the damage would have occurred in any event as the result of ... events for which the defendant is not liable" (p 640).

79 Here there was considerable evidence that before the electric shock Mr De Beer enjoyed significant success at school, consistent with having no impaired memory, constant headaches, nor problems such as impaired levels of concentration or fatigue and suffering from no depression. Contrary to the defendant’s submission, there was no ‘enormous litany of difficulties’ of which Mr De Beer complained after the accident. His complaints were consistent and persistent as to his ongoing problems, albeit they had serious consequences, of various kinds. The only evidence as to any event which might have caused either the neurocognitive damage which was apparent after the accident or the dysthymia, was the electric shock. The evidence did not establish any pre-existing disposition to such an illness or injury.

80 On the medical evidence, such a shock, even at a relatively low voltage, was capable of giving rise both to the neurocognitive damage identified by various testing and the dysthymia which Mr De Beer subsequently suffered. I am satisfied that the evidence established that the electric shock was the cause of those injuries. The views of Dr Reid and Dr Klug must be preferred on these issues over those of Dr Champion and Dr Roberts, for reasons which I will explain.

The nature of the electric shock received

81 In approaching the resolution of the issues lying between the parties, it was necessary to begin by considering the nature of the electric shock which Mr De Beer received. It was, undoubtedly, at the lower end of the possible scale, albeit on the evidence it was still a substantial shock, given its immediate and ongoing physical consequences.

82 It was Mr De Beer’s evidence that when his left hand came into contact with the exposed wires, he was initially unable to let go, but was able to do so relatively quickly. This reaction is consistent with the ‘no let go’ phenomena, that is, being unable voluntarily to let go of the source of the current, and with evidence of a circuit breaker tripping on 29 May 2001. In evidence was a letter written to the Principal on 30 May by Mr De Beer’s father, in which he recounted that after their conversation earlier that day and he having also spoken to Mr De Beer, he understood that what had been received ‘was a full mains electric shock for at least 1 to 2 seconds until the circuit breaker tripped’. Mrs De Beer’s notes reflect a similar understanding.

83 Mr De Beer’s father was not called to give evidence and Mrs De Beer’s understanding was not challenged. That understanding was consistent with other evidence, including that of Mr De Beer, Ms Chan and Ms Mitchell, who were present when the accident occurred and also with what Dr Resnekov recorded as Mr De Beer telling him on 30 May. It was Mr De Beer's evidence that he had asked someone about why he had initially been unable to let go of the board, he thought it might have been Dr Resnekov. Dr Resnekov's notes confirms this was what Mr De Beer had told him.

The injuries which resulted

84 There were no visible physical injuries sustained from the shock, such as burns. When an ambulance attended shortly afterwards, an ECG test was in the normal range, as was blood pressure, pulse and respiration. A CT scan later confirmed that there had been no structural damage to the brain.

85 Mr De Beer’s immediate physical reactions to the shock included feeling cold, dizzy and unwell; he could not breathe and it hit his chest; he experienced uncontrollable shaking of his body, which persisted until the next day, and with his hands, particularly his right hand, for about six months, before the shaking began to diminish; an inability to stand or walk unassisted until the next day, when he was still unsteady on his feet; being unable to sleep properly that night; and a severe headache, which continued even when giving his evidence. There was corroborative evidence from Ms Chan and Ms Mitchell as to Mr De Beer’s state immediately after the shock and on their return, when they had obtained help. There was further corroboration from the ambulance report, which noted shaking was observed. Mrs De Beer’s evidence and Dr Resnekov’s records provided further corroboration of Mr De Beer’s state the next day and during the following days, when Mr De Beer was taken back to Dr Resnekov.

86 Mr De Beer’s problems with his memory, concentration and fatigue, to the point where his studies were deleteriously affected, arose in an immediate and substantial way after the accident. All of these problems continued, even at the hearing.

87 In a letter written to the School by Dr Resnekov on 5 June, he mentioned effects on Mr De Beer’s concentration and memory, even at that early stage. Dr Resnekov did not mention headache, but Mr De Beer’s complaints of headache were noted by his mother from 30 May. Why Dr Resnekov did not mention a headache in his letter is not known. He was not called. He did refer to headache in his referral note to Dr Aggerwal, dated 3 July 2001.

88 While it was suggested for the first defendant that there was some doubt about when Mrs De Beer made her notes, I am satisfied that the evidence was clear. The notes for 29, 30 and 31 May were all made on 31 May, the day Mr De Beer stayed home from school. Later notes were usually made by Mrs De Beer on the day in question, or close to the day. The handwritten notes made by Mrs De Beer were later typed up on a computer by her husband. In the latter stages during which Mrs De Beer kept those notes, the entries were similar and her husband simply grouped them together.

89 While it is apparent from the evidence that Mr De Beer’s recollection that the headache started on the evening of 29 May may not be reliable, given the evidence that his memory has been affected by the electric shock, there is no reason to doubt Mrs De Beer’s evidence. I accept it. I am satisfied that Mr De Beer was complaining of suffering a headache as early as 30 May 2001. It is entirely possible that the headache started the previous evening, as Mr De Beer believed that it did. Nothing really turns on this.

90 In the ensuing months, the overwhelming evidence of Mr De Beer, Mrs De Beer, Ms Chan, and Ms Mitchell, as reflected in school and medical records, was that after the electric shock, Mr De Beer had serious, ongoing problems with headache, memory, concentration and fatigue and he began experiencing emotional difficulties relating to friends and family, as well as feelings of frustration and depression, which worsened over time, seemingly as expected improvements in his other symptoms did not eventuate. This depression continued at the time of the hearing. By that stage he had been diagnosed with a depressive disorder. The consensus of the medical experts was that the disorder was dysthymia.

Can such injuries result from an electric shock?

91 There was no evidence whatsoever that Mr De Beer had experienced any of these symptoms, problems or illnesses, other than headaches, prior to receiving the electrical shock. I will return to the question of headaches, but it is convenient to observe at this point that these symptoms all accorded with the evidence as to what injuries can result from an electric shock.

92 Certain of the literature to which the experts made reference in their reports was in evidence. What this revealed was that while electric shock has been much studied, its effects are still not well understood. Problems with methodological flaws in research undertaken has been identified.

93 In the article by Duff and McCaffrey, 'Electrical Injury and Lightening Injury: A Review of Their Mechanisms and Neuropsychological, Psychiatric and Neurological Sequelae', (Neuropsychological Review Vol 11, No 2, 2001), various points pertinent to a consideration of this case are made. They include that:

- Voltage is not the sole determinant of damage from electrical contact; fatalities have occurred from contact with as low as 25 volts and minimal effects from exposure to 34,000 volts (at p 102).

- The most common points of entry are the hands and head and skin, resistance can be reduced if it is wet or dirty; electricity tends to take the path of least resistance (at p 102).

- Once past the skin, current may pass along nerves, blood vessels or muscles, searching for a ground source (at p 102).

- Entrance points where there is direct contact with a power source may or may not result in burns (at p 103).

- Nerves and blood vessels have low resistance, so current tends to travel along them, once past the skin; this may be one reason why neurological, psychiatric and neuropsychological sequelae are common results of electric shock (at p 103).

- Of the 28 studies reviewed, the most common symptoms were psychiatric complaints, including depression (28%) somatic complaints, including fatigue and headache (26.5%) and neuropsychological symptoms such as memory effects and attention problems (25.4%). Brain functioning was more affected than brain structure (at p 108).

- There are hypotheses that an electrical injury might start a degenerative process, although this is not established (at p 109).

94 Dr Klug explained that there was a large body of literature which showed that electrical injuries have a high rate of neurological and psychological sequelae associated with them. There have not, however, been detailed studies of domestic or industrial electrical injuries such as those Mr De Beer suffered. Dr Champion explained that the presence of injuries such as burns, would make the injuries here claimed more likely and their absence less likely. Dr Klug agreed, but said that the literature still showed a considerable number of persons who did not have such markers, but who had suffered from neurocognitive problems. Dr Klug and Dr Champion agreed that the more physical evidence of injury, the more likely it was that there had been a psychological injury as the result of an electric shock, but if the electric shock was minor, so that physical injury did not result, resulting psychological injury could not be excluded.

95 It was thus common ground that while Mr De Beer did not suffer physical injuries such as burns from the electric shock which he received, it was possible that he had suffered both neurocognitive damage and psychological injury, as the result of that shock. Whether that is what occurred, must be resolved by a consideration of the other evidence led at the trial.

What the evidence established as to what occurred on 29 May 2001

96 The evidence was that on 29 May 2001 Mr De Beer was wet when he was doing the editing work in the theatre located at the camp. It had been raining heavily when he was taken to the hall. How wet he was and whether his hand was wet when he received the electric shock is not known, although that seems unlikely, given the time which had elapsed. He was wearing rubber soled shoes and was sitting at a desk, when he bent down and touched the exposed wires at the back of the board, with his left hand.

97 The first defendant’s case was that there was a considerable degree of speculation as to what level of voltage Mr De Beer had been subjected to. The evidence, including the ambulance report, suggested that the voltage to which he was exposed was 240 volts.

98 The only witness who attempted to give any explanation as to how the electric shock might have entered and left Mr De Beer’s body was Dr Champion. His theory was that the path which the current had taken was superficial, flowing from the hand to the feet, with much of the flow on the surface. In his opinion, the brain, a deep structure, was sheltered and separated from the flow, with the result that the expectation of a resulting electrical injury to the brain was so low as to approximate zero.

99 In oral evidence, Dr Klug and Dr Champion agreed that given the state of the literature, it is difficult to make generalisations about the path that an electrical shock takes in the body. Dr Klug explained that the literature suggested that the course which an electric current takes through the body can be highly variable and can have a multiplicity of effects on different organ systems.

100 The difficulty, it seemed to me, with Dr Champion's analysis of the superficial path that the current took was that it did not explain why Mr De Beer's breathing and heart were affected, albeit on the evidence his heart recovered quickly. Nor did it explain why it was that the current which had entered Mr De Beer’s body by the left hand, had not only resulted in uncontrollable shaking of the entire body immediately after the shock, which continued for some considerable time, but the worst and most ongoing shaking which was experienced was in the right hand. That persisted for many months. Even now, shaking is sometimes experienced. Also to be considered is that immediately after the shock Mr De Beer was unable to walk unaided and had to sit in the shower. His walking was still affected the next day.

101 As was conceded by the first defendant, there was undoubtedly a strong temporal connection between the shock and the immediate reactions described by Mr De Beer and others present. The first defendant’s submission that this shaking was simply the result of the fright of the electric shock, rather than of the shock itself, was difficult to accept. There was no medical evidence to that effect and it was certainly not something suggested by the literature.

102 I accept that the evidence makes it apparent that Mr De Beer’s brain must have been sheltered from the worst of the shock. A CT examination in June confirmed that there had been no structural damage to the brain. On the literature, that a CT scan did not show that there was damage to a part of the brain, does not establish that brain function was not affected. If the brain had been completely sheltered from the shock, as Dr Champion hypothesized, it is difficult to understand the other effects of the shock on memory, concentration and headache. The evidence showed that Mr De Beer reported these problems the next day to his mother and leaving to one side headaches, to Dr Resnekov.

103 Mr De Beer had no history of having suffered such problems before the shock, but there was considerable evidence of ongoing complaints about these problems, from then on. There was also considerable evidence that the consequences of these problems were observed, both in the immediate and long term – by fellow students, by Mr De Beer’s mother, by teachers, by employers and by repeated clinical testing. To have contrived and maintained such symptoms so successfully, consistently, and for such a long period of time, would have been a remarkable feat, which no one suggested Mr De Beer had attempted.

104 It was Dr Champion’s opinion that Mr De Beer was not malingering and even Dr Roberts explained that the test results which might have been consistent with malingering or exaggeration, did not establish that there were no underlying problems.

105 I am quite satisfied that the evidence established that these symptoms were suffered after the accident, in the way Mr De Beer described.

106 Dr Champion’s hypothesis does not account for the possibility of impact of the electric shock on brain function, rather than brain structure. That accords with the evidence of what Mr De Beer experienced after the shock, consistently with the views of Dr Klug and Dr Reid, as well as the discussion of the impact of electrical injury on brain function in the literature.

107 On that literature, the most common point of entry in cases of electric shock appears to be the hand and head, yet injuries which affect the brain are common and do not appear to be confined to cases where the point of entry is the head, or where the voltage involved in the shock is a very high one. The studies reviewed suggest that brain functioning appears to be more often affected by electric shock, than brain structure.

108 In light of all of the evidence, I am not able to accept Dr Champion’s thesis as to the path which the electric current travelled. That the electrical injury did have an effect on Mr De Beer’s brain function, was consistent with the evidence of the symptoms suffered after the shock. In this respect, I must prefer the views of Dr Klug and Dr Reid.

Could Mr De Beer's injuries have had another cause - headaches?

109 In his March 2006 report, Dr Champion also considered whether a belief that Mr De Beer had been injured, rather than having actually suffered any injury, had caused Mr De Beer to have a significant psychological focus on perceived injury, resulting in effects which were real, but were not caused by the injury itself, but rather by the insidious effect of motivation, suggestion and false belief in injury. Dr Champion’s view was that the possible effects of reinforcement of Mr De Beer’s concerns, particularly by Mr Irvine’s reports, for example, had to be considered. Dr Champion believed that it would have been better if, in 2001, Mr De Beer had been given reassurance along the lines of the views which Dr O’Neill, a consultant neurologist, later expressed in July 2005, namely, that the electric shock had been a frightening experience, but that it was only a relatively minor event, which would not have been expected to result in any permanent injury. Involvement in litigation had also impacted on Mr De Beer’s perceived disability, in Dr Champion’s opinion. Dr Champion also explained that he would have expected any reactive disorder to the injury itself, to have more likely been something like post traumatic stress disorder, rather than dysthymia.

110 Dr O’Neill in his report in July 2005 noted Mr De Beer’s continuing symptoms. He concluded that the electric shock, while frightening, was a relatively minor event, which one would not expect to result in permanent impairment. His opinion was that the continuing symptoms had a psychosomatic basis. He then assessed Mr De Beer as fit for higher education in a Diploma of Education. He was also critical of treatment Mr De Beer had received, which in his opinion, had wrongly focussed on symptoms, rather than the psychological response to a frightening incident. Dr O’Neill noted prior treatment for headache, abdominal pain and neck pain and concluded that from the outset there was a major focus on a possible negative effect of the injury on HSC performance, a view later promulgated by Dr Irvine, which reinforced the psychosomatic basis for the injury. In Dr O’Neill’s view, no further medical treatment was necessary, except for Mr De Beer being given reassurance that no permanent physical incapacity had been sustained.

214 I am also unable to accept that the calculation should be approached on the basis of a 5 day working week, as the first defendant urged. That would not be consistent with the evidence of the extent of Mr De Beer’s incapacity as the result of his injuries and the prognosis of his dysthymia. To approach the calculation on the basis argued for the first defendant is inconsistent with the views which I have reached on the evidence, as I have earlier outlined, as well as the evidence of the experts to which I have referred.

215 As to vicissitudes, it was argued for Mr De Beer that the usual discount of 15% would not be applied in this case, given the conservative approach adopted to the calculation of future economic loss, having in mind the evidence of other career paths which Mr De Beer might have pursued but for his injuries, which would have resulted in higher earnings than those claimed. The approach of Windeyer J on Bresatz and Another v Przibillaiand Another (1962) 108 CLR 541 at pp 543-4 was relied on. His Honour there observed:

Turning then to the first head commonly called loss of future earnings--a common method of estimating the loss of prospective earnings is to take the annual earnings at the date of the accident and multiply this by the number of prospective working years lost. Then it is said "the resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the years, and second that contingencies might have arisen to cut off the earnings before the period of disability would otherwise have come to its end": Mayne & McGregor, Damages (1961) p. 767. The first of the two considerations mentioned does, of course, in every case demand that the product of the initial multiplication must be discounted at some assumed rate of interest to ascertain the present value of the notional future earnings. Nothing here turns upon the individual. This "scaling down" is a mere process of arithmetic applicable to all cases; and there are tables from which the result is readily ascertainable. But the second consideration is altogether different. It is a mistake to suppose that it necessarily involves a "scaling down". What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these "contingencies", or the "vicissitudes of life" as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. We were told that in South Australia it is a common practice to subtract twenty-five per cent "for contingencies". Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover, the generalization, that there must be a "scaling down" for contingencies, seems mistaken. All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad.

216 I am satisfied that while in this case it would not be appropriate to adopt a discount of 20-30% for vicissitudes, it would also not be appropriate or in accordance with the evidence, to depart from the usual allowance for vicissitudes, as to which see the discussion in Wynn v New South Wales Insurance Ministerial Corp (1995) 184 CLR 485 at pp 497-8, for example. I have accepted that on the evidence, the assessment should have regard to a career path to the position Principal, for the reasons explained. That pays proper attention in this case to the approach discussed by Windeyer J, in Bresatz.

217 The evidence also suggests that Mr De Beer is subject to the ordinary vicissitudes of life and that account should be taken of that, in the assessment of this head of damage, accordingly the usual 15% discount should be applied.

Interest on past economic loss

218 This was claimed on the basis of a calculation of 4% per annum over 2.21 years. The first defendant did not oppose this calculation, which must be made having in mind the mind the requirements of s 18 of the Civil Liability Act. I am satisfied that interest should be so calculated.

Non economic loss

219 This aspect of the damages claim is governed by s 16 of the Civil Liability Act. No such damages may be awarded unless the severity of the plaintiff’s non-economic loss is at least 15% of the most extreme case. The maximum provided may only be awarded in a most extreme case and a table is provided, which prescribes the amounts that may be awarded in other cases. The first question which thus arises to be answered, is whether the plaintiff has established that his non economic loss was at least 15% of the most extreme case.

220 I am satisfied that this was established. Not only did Mr De Beer suffer various neurocognitive injuries in 2001 as the result of the electric shock which he received, he also sustained a serious dysthymic illness. The illness is ongoing, with the consensus of the medical experts being that there is no real chance of any substantial recovery.

221 The first defendant’s case was that any order made would be in the 25% to 30% range, assessed at $29,500. It was the plaintiff’s case that 45% was well within the appropriate range, assessed as $202,500.

222 For the first defendant it was argued to be relevant that there was no evidence of any medical advice which had resulted in Mr De Beer reducing his working hours to three days per week. It was implausible, in the face of the trivial shock to which Mr De Beer had been subjected, that he suffered all of the symptoms and cognitive effect, which he claimed, so soon after the shock. The case was argued to be so stark, as to make the claims unbelievable.

223 While it was conceded that the medical evidence led to the conclusion that a degree of consequence and symptomology from the electrical shock had to be accepted, it also had to be considered that there was no explanation on a pathological basis, from any medical practitioner, to explain why the shock had resulted in headache, let alone headaches that continued, unaffected by medication. While it was suggested that brain function rather than brain structure had been affected, function could not be completely independent of structure.

224 In the face of the evidence, I am unable to accept the first defendant’s argument. For the reasons I have explained, I am satisfied that the shock led to the injuries from which Mr De Beer continues to suffer. Regrettable as it is, it is possible for serious injuries to result even from relatively minor electrical shock. The evidence shows that Mr De Beer is one of those who has suffered such injuries.

225 I have come to the conclusion that the severity of Mr De Beer’s non economic loss should be assessed at 40% of a most extreme case. This reflects the ongoing consequences of the neurocognitive injuries sustained, headaches and problems with memory, concentration and fatigue from which Mr De Beer continues to suffer, as well as the dysthymia. There is no real chance of recovery and the profound consequences which this has had for Mr De Beer's life, were abundantly clear on the evidence.

226 As was argued for Mr De Beer, the injuries he has suffered have affected significant aspects of his life, his personality, his relationships with others, his education and his future career, since the accident in 2001 when he was in year 11 at high school. He is now aged 25, able to manage work on about three days a week, coping with injuries which require him to be under the constant care of a psychiatrist, who he sees every few weeks, ordinarily needing to take a variety of drugs he has been prescribed and even more, when he is coping less well with the consequences of his disorder.

227 It is not only Mr De Beer’s work prospects which have been affected by his injuries, so has his personal life. His family and social relationships were adversely effected by his injury. He has become a different, more isolated person, who has experienced difficulty in maintaining close personal relationships since the accident, despite the esteem which his approach to his problems generate. He is no longer an outgoing, sociable person, with a wide circle of friends, engaged in a wide range of extra curricular activities. He is embarrassed by his problems and tries to conceal them from colleagues and friends.

228 The prospect of sufficient recovery to permit Mr De Beer to return to his former self, let alone to full time work of the kind he had earlier performed at Crusaders or Scouts, does not realistically exist. On Mr Hedges‘ evidence, even with the considerable support he was being given, Mr De Beer was not coping with his work at Crusaders. He could not have persisted as long as he did, without that support and even with it, his performance was declining before his resignation. Without that level of support, Mr De Beer now manages only 3 days work at the Scouts, even though there too, he plainly has a supportive employer.

229 The possibility that Mr De Beer might recover sufficiently to achieve his pre-injury potential or life, to pursue his education and achieve employment as a primary school teacher, is non existent. The medical evidence is that the disorder is entrenched and disabling. On that evidence, it is not a matter of Mr De Beer simply being able to pull himself together, something which will occur after the conclusion of this litigation. None of the medical evidence provides a foundation for that conclusion. When cross examined, Mr De Beer explained that the stress of this litigation was but a minor part of his stress, although he accepted that any chance of improvement would be enhanced by the litigation concluding. That is not a basis upon which the conclusions urged for the first defendant can rest.

230 Damages calculated at 40% of a most extreme case, must be ordered. This amounts to a figure of $180,000.

Past out of pocket expenses

231 These expenses were agreed in the amount of $13,597.91.

Future out of pocket expenses

232 A sum of $47,007.08 was claimed, that being calculated on the basis of 10 years of ongoing treatment from a psychiatrist or psychologist, as well as ongoing medical expenses. The calculation was on the basis of 26 sessions per year at $200 per session, with medication expenses of $60 per month, for 10 years.

233 The first defendant’s case was that a sum of $10,000 should be ordered. Again, there was no explanation of the assumptions on which that calculation was based; it was frankly conceded to be guess work, but it was submitted that the plaintiff’s calculations were approached on an overly pessimistic basis. Account would be taken of the view that, as yet, untried cognitive treatment should provide benefit. The calculation should be approached on the basis that the future will be a lot better, when the litigation was over; that the plaintiff was capable, and had always been capable of full time work.

234 I am satisfied that there was no evidentiary foundation for the view urged for the first defendant. It was inconsistent with the views of the medical experts. I am satisfied these expenses should be calculated on the basis claimed. The medical evidence suggests a long term need for ongoing treatment, perhaps even on a life long basis.

Past loss of superannuation

235 Section 15C of the Civil Liability Act provides:

(1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based.

(2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions.

236 The calculation claimed for Mr De Beer was on the basis of 11% of net economic loss, relying on the approach in Najdovski v Crnojlovic [2008] NSWCA 175 at [53]. The first defendant proposed a sum of $1,605. The calculation was not explained. On the approach of the majority of the Court of Appeal in Najdovski, a calculation on the basis of 11% of net earnings is available to the plaintiff. I am satisfied in the circumstances that the sum must be calculated on the basis proposed for Mr De Beer.

Future loss of superannuation

237 The calculation for Mr De Beer was claimed either at 9%, or 11%, consistent with the approach in Najdovski. How the first defendant approached the calculation was again not clear. Again, I am satisfied on the approach of the majority of the Court of Appeal in Najdovski, that a calculation on the basis of 11% of net earnings, is available to the plaintiff.

Summary

238 Subject to counsel checking these calculations in accordance with this judgment, for the reasons explained, I assess the plaintiff's damages as follows:

1. Past economic loss - $43,358.83

2. Future economic loss - $664,137.00 less 15%

3. Interest on past economic loss calculated at 4% over 2.21 years.

4. Non economic loss calculated at 40% of a most extreme case - $180,000.00

5. Past out of pocket expenses - $13,597.91

6. Future out of pocket expenses - $47,007.08

7. Past loss of superannuation calculated at 11% of net economic loss.

8. Future loss of superannuation calculated at 11% of net economic loss.
The order against the second cross defendant

239 The apportionment of damages between joint tortfeasors involves:

… a comparison both of culpability, that is, of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination – James Hardie and Coy Pty Limited v Roberts and Another (1999) 47 NSWLR 425 at 446 [90].

240 Initially the order sought was a verdict on the cross claim against the second cross defendant on the basis of 50% of any damages order in favour of the plaintiff, given the respective obligations which fell on the defendants and the fact that it was the second cross defendant which had supplied the defective power board at the camp which it conducted.

241 Later it was submitted that the proper order would be that the second cross defendant would bear 75% of the damages order, because the injury was caused by a power board it had supplied. On further consideration, it was accepted by the first defendant that a proper reflection of the respective responsibilities of the two defendants would be between 50% and 75%. It was accepted that the first defendant had responsibility for the injury on the basis of a non-delegable duty to the plaintiff, as well as that of a co-occupier of the camp at which the accident occurred.

242 I am satisfied on the evidence that the first defendant must have a verdict on the cross claim in its favour. An order that each defendant bear 50% of the damages order made in favour of the plaintiff, reflects a proper account of all of the relevant issues, as between these defendants.

Orders

243 Subject to the calculation of damages being checked and any submissions which the parties wish to advance in relation to costs, for the reasons given, I propose to make orders to the following effect:

1. Verdict for the plaintiff.

2. An order for damages in favour of the plaintiff, calculated in accordance with this judgment.

3. The defendants to pay the plaintiff's costs of the proceedings

4. Verdict for the first defendant on the cross claim.

5. The first defendant/second cross claimant is entitled to an order against the second cross defendant in an amount reflecting 50% of the damages ordered in favour of the plaintiff and an order of costs on the cross claim.

244 The parties are to bring in short minutes of order to give effect to the judgment. Such orders to be filed by Monday, 25 May 2009.

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21/05/2009 - slip rule - 'second defendant' amended to 'second cross defendant' - Paragraph(s) [2], [66], [67], [68], [240], [241] and [243]