Doubleday v Kelly

[2005] NSWCA 151

CITATION:	DOUBLEDAY & ANOR v. KELLY [2005] NSWCA 151
HEARING DATE(S):	19/04/2005
JUDGMENT DATE:	12 May 2005
JUDGMENT OF:	Bryson JA at 1; Young CJ in Eq at 39; Hunt AJA at 40
DECISION:	Appeal allowed. Damages varied to $64,000. Each party to pay own costs. See [38]

CATCHWORDS:	NEGLIGENCE - Occupier - guest child aged 7 injured on trampoline which was accessible while children were without adult supervision - consideration of - foreseeability - breach in not preventing children from going to trampoline while unsupervised - reasonable response to foreseen risks to children in home and in care of parents - contributory negligence of child of 7 (held, none) - Civil Liability Act 2002 re contributory negligence, assumption of risk, obvious risk. Finding of liability upheld. - DAMAGES - personal injury - non-economic loss - Civil Liability Act 2002 - percentage of most extreme case - loss of sensation in thumb and 2 fingers, numbness paraesthesia and weakness in R dominant hand - 28% of most extreme case set aside, 20% substituted.
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Commonwealth of Australia v. Introvigne (1982) 150 CLR 258 Wyong Shire Council v. Shirt (1980) 146 CLR 40 Thompson v. Woolworths (Queensland) Pty Ltd [2005] HCA 19 Hahn v. Conley (1971) 126 CLR 276 Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540 Joslyn v. Berryman (2003) 214 CLR 552 Penrith City Council v. Parks [2004] NSWCA 201
PARTIES:	GEOFFREY DOUBLEDAY AND VICKY URQUHART – appellants BIANCA SIMONE KELLY – respondent
FILE NUMBER(S):	CA 40313/2004
COUNSEL:	G Watson SC – appellants P Neil SC – respondent
SOLICITORS:	Sparke Helmore – appellants Somerville Laundry Lomax – respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	11/2003 Lismore
LOWER COURT JUDICIAL OFFICER:	Blanch CJ

40313 of 2004

BRYSON JA
YOUNG CJ IN EQ
HUNT AJA

THURSDAY 12 MAY 2005

GEOFFREY DOUBLEDAY & ANOR v. BIANCA SIMONE KELLY BY HER NEXT FRIEND MICHELLE KELLY

Judgment

1 BRYSON JA: The appellants appeal against the verdict and judgment for $104,000 personal injury damages given by the Chief Judge of the District Court, Justice Blanch, at Lismore on 2 April 2004 after a hearing on 1 and 2 April 2004. The respondent, the plaintiff in the District Court, is a minor born on 20 September 1990. She suffered personal injury on 22 December 1997 in an accident at the appellants’ house “Mulwala”, on the Mulalley Road near Gunnedah, New South Wales. The respondent was then seven years of age; at the time of the trial she was thirteen years of age.

2 The learned Trial Judge found to the following effects. In 1997, the respondent was a friend of the appellants’ daughter, Lucy, who was then under five years of age. On 21 December 1997 the respondent and her parents arranged for her to go to the appellants’ house, which was the home of Lucy, to sleep over for the night. The children slept under a Christmas tree. As this was the first time that the respondent had slept over at a friend’s house, the excitement of the occasion led the children to wake up early in the morning whilst everyone else in the house was asleep. Without any parental supervision, the respondent and Lucy put on roller skates, went outside, and tried to roller-skate on the dirt driveway. It was difficult to roller-skate on the dirt driveway, and this led the respondent to go to the trampoline in the yard of the house. She had never been on a trampoline before and thought that the top of the trampoline was a hard surface on which she might be able to roller-skate. She climbed onto the trampoline, rolled backwards and then fell off.

3 The evidence and the findings do not support any altogether clear statement of the manner in which she fell off, or the manner in which she sustained injury, but in some way her right elbow contacted the trampoline frame while her hand was trapped under the trampoline mat. She suffered a supra-condylar fracture of the right humerus with associated damage to the right medial nerve and right brachial artery.

4 It is difficult to establish the time of the injury; the first event to which a time can confidently be assigned is the arrival of the second appellant, Mrs Urquhart, with the respondent at Gunnedah Hospital; hospital emergency notes give the time as 0655. Before reaching the hospital Mrs Urquhart had, with urgency, brought the respondent to the hospital by car; the distance travelled and the time were not established, but it is clear that the accident happened at a very early hour.

5 The Trial Judge found that Mrs Urquhart had not woken up at the time the accident occurred. The Trial Judge rejected an altogether different account of the events given in evidence by Mrs Urquhart in which Mrs Urquhart got up, went downstairs, helped Lucy put on her skates, supervised the children and told them not to go near the trampoline, but was called back inside when a younger child required attention and was not present when the accident occurred.

6 At a relatively early point in the reasons, after making the finding that Mrs Urquhart was not awake, the Trial Judge said:

That then gives rise to a question of whether or not it can be said that the defendants were negligent in their failure to supervise these children, particularly, in respect to the trampoline.

His Honour’s reasons must be read with some care to identify the respect in which he found that there was negligence on the part of the appellants. On a whole view of the reasons this passage does not indicate that his Honour founded his decision simply on some supposed duty to attend and give supervision to the children at the early hour at which they awoke, notwithstanding that Mrs Urquhart was, as his Honour found, still asleep.

7 In the evidence of Mrs Urquhart, which the Trial Judge rejected, Mrs Urquhart said that she had, on the morning before the accident, warned the children not to go near the trampoline. The Trial Judge’s reasons include the following passage (Red 14-15):

All of that gives rise to the question as to whether there is negligence and a breach of duty of care, in respect of the defendant's obligations. An argument has been put on behalf of the defendant, that the injuries in this case were not foreseeable and simply put that it was not reasonably foreseeable that a child would climb onto a trampoline with roller skates on. Obviously, being on the trampoline with roller skates was a significant factor which led to the fall. On the other hand, the defendant knew there were dangers with the trampoline and had attempted at some stage, whether it was the night before or whether, on the defendant's version, it was in the morning, but she admits that she needed to take care because of the ages of the children in preventing them going to the trampoline.

While I do not find this passage altogether clear, in my understanding the Trial Judge found to the effect that Mrs Urquhart had given the children a warning against using the trampoline, but inferred that she had done so the night before, as other findings precluded the possibility that the warning was given on the morning of the accident.

8 In findings which I regard as fairly based on evidence given by Mrs Urquhart and on inference from that evidence, the Trial Judge found (Red 13O):

… the second defendant gave evidence that she regarded the trampoline as being dangerous. She said in her evidence that she had warned the children not to go near the trampoline. That was obviously in circumstances where she accepted that the trampoline posed a danger to the two girls …

The Trial Judge also found, basing himself, as he said, on commonsense rather than on expert reports in evidence: (Red 13X)

There are obvious dangers in respect of trampolines and the evidence establishes that at various stages, various precautions have been taken in respect of them, but in any event, it is perfectly plain that so far as trampolines are concerned, when dealing with young children special care is necessary.
As I have said, so much was acknowledged by the defendant in giving her evidence.

9 Expert reports dealt with the need to equip trampolines with protective matting. The Trial Judge found: “The trampoline was purchased some twelve months before the accident and it was purchased with matting.” His Honour did not make any further finding dealing with whether or not the trampoline was equipped with matting at the time of the accident, and the finding of negligence did not relate in any way to any supposed absence of matting. Expert evidence refers to the trampoline as being about four feet high; no evidence establishes the height of the respondent at the time, but the risk that a fall and significant injury might happen is clear.

10 In disposing of the question of negligence the learned Trial Judge said (Red 15-16):

Obviously, things like trampolines are attractive to young children and care is required. If one were to apply the test suggested by McHugh J in Tame, that being the test of Lord Atkins in Donoghue v Stevenson that,

"You must take reasonable care to avoid [acts] or omissions which you can reasonably foresee would be likely to injure your neighbour."


then in my view, the evidence in this case, does establish a breach of the appropriate duty of care which was owed.

It is a case where, as I have said, the defendant actually conceded that the trampoline was a danger and that she did owe a duty of care to these children to do something about it. In those circumstances, where such a clear concession is made, in my view, it is difficult for the defendant to maintain there was no breach of the duty of care, even though it might be said, that the fact of a child going onto a trampoline wearing roller skates was not a precise matter about which there could be any foreseeability. It was foreseeable, that the children could very easily go to the trampoline. Indeed it was foreseen, specifically as a possibility by the defendant and she says she took some steps to prevent that. However, simply advising them the night before about the trampoline, would certainly not be an adequate precaution to take in respect of a child of this age.

11 The Trial Judge dealt with a contention that the particular circumstances in which the respondent, using roller skates for the first time, attempted to climb on the trampoline so as to roller-skate on the surface, and in some way fell off and was injured while attempting to carry this out, were not reasonably foreseeable. The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury to a child of seven if she were to use the trampoline without adult supervision: see Chapman v. Hearse (1961) 106 CLR 112 at 120-121, Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 402, Commonwealth of Australia v. McLean (1996) 41 NSWLR 389 at 403. The Trial Judge was correct to conclude that although, as his Honour said, “Obviously being on the trampoline with roller skates was a significant factor which led to the fall” there was a foreseeable risk of injury if the respondent were to use the trampoline at all without adult supervision. The fact that the respondent wore roller skates when she got on the trampoline is a bizarre complexity but not an important one; the risk that was foreseeable was that the child would not use the trampoline in a competent way and would injure herself by falling off, and that risk was realized.

12 Overall, the Trial Judge’s observations mean, in my view, that it was found that a warning against using the trampoline was given to the respondent the previous night, but that this was not an adequate discharge of the duty of care. Honour found that a reasonable person in the position of Mrs Urquhart would have taken precautions against the foreseeable risk of harm to the respondent by preventing the children from going to the trampoline. The Trial Judge’s reasons do not state in explicit terms what measures of prevention should have been taken. While it would have been preferable had the reasons spelt them out there is no difficulty in understanding the kind of measures his Honour must have had in mind, particularly as the judgment was delivered at the conclusion, that is the second day, of the hearing. An obvious and effective means of preventing small children from using the trampoline without supervision was to turn it over so that the jumping surface is on the ground, and to fold the legs up. A full articulation by his Honour was not necessary.

13 There was cross-examination of Mrs Urquhart in which it was put to her that she could have stood the trampoline on its side, which would have effectively put it out of use for jumping. Mrs Urquhart’s evidence seems to show that she considered doing this and decided against it because of the risk that a child might upset the trampoline while it was standing on its side, and suffer some injury in that way. This was a reasonable response to the cross-examination in its actual terms. It retrospectively seems unfortunate that the cross-examiner did not go further and articulate the next stage of turning the trampoline over completely, but that was so obvious a measure to deal with the risk of the availability of the trampoline to the children that it did not need additional articulation after referring to dealing with the risk by leaving it standing on its side. There was no procedural injustice or lack of fairness to Mrs Urquhart in not confronting her explicitly with that suggestion in the course of cross-examination. Some things are so obvious that they do not need to be dealt with explicitly in cross-examination.

14 There is no highly developed body of doctrine about the application of the law of negligence where children suffer an injury while in the care of parents, or of persons who, for longer or shorter periods, are exercising the responsibilities of parents. See the discussion in the Law of Torts by the late Professor John G. Fleming 9th Ed 1998 at 508 to 510 and see also the case law dealing with negligence liability of schools –Commonwealth of Australia v. Introvigne (1982) 150 CLR 258.

15 The issues relating to the law of negligence, including duty of care, causation and some other principles relevant to this case are as stated in Pt.1A - Negligence - of the Civil Liability Act 2002, which the Trial Judge adverted to. In my opinion his Honour’s conclusions were reached in accordance with the provisions of Pt.1A, including the general principles and other principles restated in ss.5B and 5C, and the general principles of causation in s.5D. Although the appellants’ counsel pointed out that the Trial Judge did not explicitly articulate every detail of the application of those provisions, it is clear to my mind that his Honour applied them in substance and made no departure.

16 In determining the existence and scope of duty of care, both as articulated in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47 (Mason J) and as restated in Pt.1A Div.2 of the Civil Liability Act 2002, it is necessary to come to a decision about the response of a reasonable person in the position of the appellants to the foreseeability of risk of injury; even though there is a foreseeable risk of injury it may be a reasonable response to take no precaution against it.

17 In a domestic situation, the response of a householder occupant to a foreseeable risk of injury to a child for whom the occupant is exercising parental responsibilities (as for a brief period Mrs Urquhart was) necessarily involves acceptance of many foreseeable risks of injury to the child. A house has much furniture and other effects which can cause injury, according to the way children use them; children could climb on tables and fall off, and they could tip furniture over. A household could be full of things which children might foreseeably break so as to cut themselves, drop on their feet, swallow or otherwise cause injury. See the comment in the judgment of the High Court in Thompson v. Woolworths (Queensland) Pty Ltd [2005] HCA 19 at [36]. Counsel for the appellants gave many examples, including the obvious risk that children might leave the premises and expose themselves to danger on the road outside. In his written submissions, counsel wrote: “What were the appellants to do? Short of locking the children in the house (where, it must be remembered, all kinds of potential hazards are present), the children would have had to have been constantly monitored.” (Orange 12). This was a contention in relation to supervision, which was not the ground on which the Trial Judge found negligence.

18 A trampoline has characteristics which were not present in counsel’s many illustrations, as a trampoline exists to be climbed on and jumped on, with an inherent risk of falling off in its ordinary use. It exists to be interesting and attractive to children and young persons; as the Trial Judge found, “Obviously things like trampolines are attractive to young children and care is required.” In other words, a trampoline has capacity to allure children. There should not be undue subtlety in order to create liability – cf. Hahn v. Conley (1971) 126 CLR 276 at 286 (Barwick CJ). In relation to the trampoline, the danger of which Mrs Urquhart’s own evidence shows she had seen, so that she warned the children about it, and in relation to the respondent, a child of seven, the reasonable response was to prevent the children from going on the trampoline unless they were supervised and the means to do so by turning it over was ready to hand, and free of cost and difficulty.

19 Examples drawn from other parts of the law of negligence, relating to liability of occupiers and employers, are of little use and could well be misleading if one endeavoured to proceed directly from them to conclusions about reasonable response to foreseeable risk of injury in a domestic and parental situation. Stringent parental control and paralysis of everyday activities are not what the law of negligence requires. Many circumstances may affect what household equipment children can be allowed to use unsupervised; circumstances include the age and experience of the children and any special characteristics which a particular child may have, such as being adept in the use of the equipment, or being known to be inept; there are many possible variations in circumstances, including most importantly the age and experience of the children. It was the Trial Judge’s view that Mrs Urquhart was reasonably required to take care because of the age of the children to prevent them from going to the trampoline; that is to prevent them from using it at all in situations where the children did not have adult supervision. The respondent was the elder child and was seven; Lucy, Mrs Urquhart’s daughter was under five; Mrs Urquhart had no reason to think that the respondent was experienced in the use of a trampoline, and in fact she had never used one before, and knew so little about it as to think that the surface was suitable for roller skating. For an older child an explanation that she thought that would be met with disbelief and derision; for a child of seven it is an illustration of the need for access to the trampoline to be restricted to supervised occasions.

20 Counsel for the appellants contended, correctly and referring to Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540 at 612 [192] per Gummow and Hayne JJ, that to arrive at a conclusion of negligence there must be an affirmative concept of what should have been done. The Trial Judge’s concept appears clearly enough; his Honour articulated the conclusion, and attributed it to an admission by Mrs Urquhart, that “… she needed to take care because of the ages of the children in preventing them going to the trampoline.” His Honour’s reasons did not articulate how in his view they should have been so prevented, and his Honour’s not having spelt this out should be attributed to the obviousness of the means to do so; simply turning the trampoline over is the most obvious, although other means could be thought of such as locking it away. Counsel’s reference to the supposed need to keep the children locked in the house was an unfortunately extravagant piece of advocacy; the problem could be solved by much simpler means.

21 By Notice of Contention counsel for the respondent contended the decision should be confirmed on grounds other than those relied on by the Trial Judge to these effects: (1) It should have been found that Mrs Urquhart did not at any time warn or direct the children not to use a trampoline and that this failure was negligent and causative of the injury; (2) it should have been found that it was negligent of Mrs Urquhart not to have turned the trampoline on its side or alternatively upside down so as to prevent it being used (unless the children were supervised) and so as to make clear to the respondent that it was not to be used.

22 The first of these grounds is not available; as I have explained earlier, the Trial Judge’s findings, although not clearly expressed, mean that Mrs Urquhart did give a warning on the previous evening. In the circumstances that warning could not be regarded as a sufficient response to the foreseeable risk of injury. The second ground does not differ greatly from the ground on which, understood as I understand the judgment, the Trial Judge acted.

23 In my opinion the decision in favour of the respondent should not be upset on appeal.

24 Counsel for the appellants challenged the Trial Judge’s refusal to find that there was contributory negligence. On this subject the Trial Judge said: (Red 19-21)

The other matter that has been raised in the case, is a claim for contributory negligence. The defendant says, that it was a negligent thing for the plaintiff to get up on the trampoline wearing roller skates. There is no doubt, that as a general proposition, that is correct, but in assessing these matters the law takes into account, the age and the situation of the plaintiff.
In McHale v Watson in 115 CLR 199, it was pointed out by [McTiernan] ACJ,

"That children who are very young may be manifestly incapable of exercising any of the qualities necessary to the perception of risk. On the other hand, children who are almost adults may be regarded often as in the same position as adults."

The question really is, how this plaintiff is to be assessed between those extremes. Menzies J, at p 223 said,

"Where in an action for negligence by a plaintiff child, the defendant raises as a defence the contributory negligence of the plaintiff, it is now established that the defence may fail either because in the circumstances there is nothing upon which a finding could be made that the child was capable of taken care for its own safety or where the child is capable of taking such care, it is not established that it failed to take that degree of care for its own safety, such as that which could reasonably be expected of such a child."

It is submitted here that the plaintiff was seven years of age and therefore, know of the dangers of going on the trampoline, ought to have had a clear perception of the dangers posed by the trampoline and going on the trampoline by way of roller skates. The evidence, as I have already pointed out, is that the plaintiff had no idea herself about that and the question then becomes one of, whether or not, a seven year old child could reasonably be expected to know of the dangers of going on the trampoline.

In my view, it cannot be concluded against the plaintiff, that a seven year old child normally would or should have a perception of those dangers and on that basis, in my view, the claim for contributory negligence fails.

25 Under the Common Law, contributory negligence is determined according to the standard based on what a reasonable person would know or foresee about a risk of injury, not particularly on the knowledge or foresight of the injured person; see Joslyn v. Berryman (2003) 214 CLR 552 at 558-9 [16] per McHugh J. In the present case contributory negligence was dealt with by Civil Liability Act 2002 Pt.1A Div.8 ss.5R and 5S. Section 5R and s.5S provide:

5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

26 In so far as I understood the contention it was to the effect that in s.5R(2)(a): “a reasonable person in the position of that person” is a generalised concept and the fact that the person who suffered harm is an infant of seven years is not relevant. That would be a radical departure from the Common Law and I do not think that subs.(2)(a) was intended to create such a departure. The characteristics of a reasonable person in the position of the person who suffered harm include the characteristics of being a child of seven years. As the Trial Judge said, “In assessing these matters the law takes into account the age and the situation of the plaintiff.” His Honour’s statement “… It cannot be concluded against the plaintiff, that a seven year old child normally would or should have a perception of those dangers …” (i.e. the danger of going on a trampoline) is plainly correct, and his Honour’s disposition of the issue of contributory negligence is correct.

27 It was also contended that the Trial Judge has not dealt adequately with the question of assumption of risk under Pt.1A Div.4, ss.5F to 5I of the Civil Liability Act 2002. The provisions of those sections dealing with “obvious risk” turn to subs.5F(1) which is in these terms:

5F Meaning of "obvious risk"

(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

Counsel relied on the provisions of Div.5 relating to recreational activities, including s.5L which is in these terms:

5L No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person ( "the defendant" ) is not liable in negligence for harm suffered by another person ( "the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.

28 By s.5L “obvious risk” has the same meaning as it has in Div.4, that is the meaning given to it by s.5F: see s.5K. In support of the contention counsel argued that getting on a trampoline while wearing roller skates was a dangerous recreational activity engaged in by the respondent. That aspect can be left on one side. Whether the respondent’s injury was suffered as a result of the materialisation of an obvious risk requires reference by way of s.5K to subs.5F(1) and to whether the risk was “… a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.” It was contended: “… the full force of s.5L applies to children as though they were adults.” It was the meaning of this contention that when addressing who is, for the purposes of s.5F(1) “a reasonable person in the position of (the respondent),” the fact that the respondent was a child of seven is not relevant, and the reference is to a generalised reasonable person. In my view this submission does not accord with the meaning of subs.5F(1), which requires consideration of the position of the person who suffers harm and whatever else is relevant to establishing that position. The characteristics of being a child of seven with no previous experience in the use of trampolines or roller skates, who chose to get up early in the morning and play unsupervised, is part of that position.

29 The Trial Judge found (Red 13) that there are obvious dangers in respect of trampolines; this finding, in context, related to what is obvious to reasonable persons, not being young children. At Red 16 the Trial Judge found, after referring to s.5L, “We are talking here of a seven year old girl and in my view a reasonable seven year old would not regard the trampoline as an obvious risk.” In my opinion the reference to “a reasonable person in the position of that person” in s.5F requires that this view be taken of s.5L. Upon the findings made by the Trial Judge neither Div.4 relating to assumption of risk nor Div.5 relating to recreational activities stands in the way of the respondent’s recovering of damages.

30 The appellants’ counsel contended that the Trial Judge’s assessment of damages for non-economic loss was erroneous. That assessment was regulated by Pt.2 Div.3 of the Civil Liability Act 2002 which requires an assessment, in percentage terms, of the severity of non-economic loss (as a proportion of a most extreme case). The Trial Judge assessed the severity at 28% of a most extreme case, in the following terms (Red 17):

That then leads me to assess the damages in this case. The plaintiff's injury is as I have indicated. She describes the injury as one which causes her to lose sensation in the thumb of her right hand - the index finger of her right hand and the middle finger of her right hand. She suffers pins and needles in them from time to time and she has lost strength in her hand as a result of this. She speaks of that in the context of using a pencil and the fact, that after using a pencil for half an hour, she has difficulty carrying on with writing because of the weakness in her hand.

31 At (Red 18) his Honour went on:

The problem is, what is that disability? It is obviously a disability that she obtained when she was seven years of age and will have it for the rest of her life. The numbness, the paraesthesia and weakness in her fingers, is obviously a discomforting factor, but it is also going to be a disabling factor throughout her life because she clearly is quite an intelligent young girl and is likely therefore, to go on to work in a capacity that requires some intellectual exercise and nearly every such activity requires a significant amount of writing, or typing or use of computers.
She is right hand dominant and these are the fingers on her right hand, that is clearly going to have a significant impact on her life. No doubt, she is able to compensate for it in some ways, but it is not difficult to conclude that it is going to be a significant interference with both her working life and her enjoyment of life in general and it is one, inflicted at such a young age, that will be with her for a very long period of time. In my view, in those circumstances, and bearing in mind what is said in the medical reports, twenty-eight percent of a most serious case, is an appropriate award to make and I make that award.

32 In relation to the assessment of damages counsel brought to the Court’s attention, as he is entitled to do having regard to s.17A, the award of damages in Penrith City Council v. Parks [2004] NSWCA 201. In that case the plaintiff, whose age was not given but was sufficiently adult to be in employment, suffered a fracture of the little finger of her right hand and some other minor injuries when she tripped and fell on the concrete path. In relation to the plaintiff’s injury and its impact on the plaintiff’s life McClellan AJA said:

25 As a result of the fall, the opponent suffered a fracture to her right little finger. She also complained of pain and discomfort in the right hand, neck and back and said she had sustained some psychological reaction to the effects of the accident.
26 … However, the trial judge accepted the opponent’s evidence, finding that her "main medical problems after the fall was the injury to her right little finger and the emotional consequences thereof" (at [11]).
43 The opponent is left hand dominant and, although the injury may cause some impairment of the use of the right hand, any ongoing disability will not be great. No doubt like many people who suffer a fracture, the opponent may continue to be aware of some minor effect from time to time, but the evidence does not suggest any disfigurement and only indicates a small impact on her life.

33 At first instance the severity of non-economic loss had been assessed at 28% of a most extreme case. The plaintiff’s left hand was her dominant hand. It was the view of the Court of Appeal that the assessment of 28% of a most extreme case was manifestly excessive. After a review of the facts, and of the law relating to the assessment of percentage of a most extreme case, McClellan AJA determined (para 46) “… When assessing the severity of that loss compared with the most extreme case it could be no higher than 15%.” The disposition took the form it did because the Court was bound by a concession that the plaintiff was entitled to an award for non-economic loss; McClellan AJA’s reference to the concession suggests the possibility that if there had not been a binding concession, the severity of the loss might conceivably have been assessed as lower than 15%.

34 I find it very difficult to get any real guidance from consideration of Penrith City Council v. Parks. In the present case, the respondent’s continuing disability is, to a significant extent, much worse than that of the plaintiff in Penrith City Council v. Parks. Further, the disability affects her dominant hand, and does so for a greater part of her lifespan.

35 A finding of facts which reduces findings about severity of non-economic loss to a proportion expressed as a percentage of a most extreme case is not a finding which can be justified by cogent detailed reasoning, in the mathematical terms which the requirement to reach a percentage seems to invoke, nor in any other terms. “A most extreme case” is itself not a highly defined concept, and includes extreme disabilities of various kinds which could not readily be compared with each other. To my mind a high degree of generalisation is required, and a contention that there has been an error faces the difficulty that there will in most cases be a fairly wide range of percentages within which the conclusion might reasonably fall. Little of exposition as there is in the expression, I feel bound to say that the discernment of the reasonably available range is a matter of impression and cannot be further elucidated.

36 I have in mind the difficulties of the subject, and the limitations on appellate power, which is only to be exercised where an error is established. Nonetheless it is my opinion and conclusion that 28% is an excessive assessment of the severity of the respondent’s non-economic loss as proportion of a most extreme case. That part of the Trial Judge’s assessment should be set aside and the Court of Appeal should embark on assessment again. While recognising that the respondent’s permanent disabilities are continuing, and they will, over many decades, have a real and adverse impact on her life, I am of the view that the expression of the severity of her non-economic loss as a proportion of a most extreme case is in the order of 20%, and that that figure should be adopted as the finding. The present maximum amount is $400,000: See Government Gazette 10 September 2004 page 7,509. In the application of the table in s.16 an assessment of the severity at 20% produces an award of damages at 3.5% of $400,000; that is $14,000 and not $54,000 as allowed by the Trial Judge.

37 The appellant has not succeeded in its principal attacks on the judgment below. The contentions against Justice Blanch’s conclusions on liability occupied by far the greater part of the hearing on appeal and the written submissions, and were presented with developments relating to the effect of the Civil Liability Act 2002 which enhanced the difficulty of the contest. The attacks on the Trial Judge’s treatment of the legislation were elaborate and elaborated and had no success. The appellant succeeded only on a minor part of the award of damages and the extent of its success was greatly magnified by the application of the statutory table. In the circumstances each party should pay his or her own costs of the appeal.

38 In my opinion the Court of Appeal should make the following orders:

(1) Appeal allowed.

(2) Assessment of damages made by the Trial Judge varied so as to substitute an assessment of $64,000.

(3) Verdict and judgment for the respondent set aside and in lieu thereof, give judgment for the respondent for $64,000.

(4) Order for costs of the District Court is to stand.

(5) Order that each party pay his or her own costs of the appeal.

(6) The respondent is to have a certificate under the Suitors Fund Act 1951 if otherwise qualified.

39 YOUNG CJ IN EQ: I agree with Bryson JA and the additional comments of Hunt AJA.

40 HUNT AJA: I agree with the Bryson JA, but add my own further reasons to the reasons given by him in par [37] for the costs order which is being made.

41 The written submissions filed in support of this appeal by the defendants’ insurer were in many cases based on wholly wrong assertions of fact, and in some cases on wholly wrong assertions of law. The principal complaint appeared to be that the trial judge, had he articulated each relevant section of the Civil Liability Act 2002, would have reached a different conclusion. No attempt was made, in either the written or the oral submissions, to demonstrate why or how the conclusions would have been different.

42 One of the principal arguments in the appeal on damages was based on Penrith City Council v Parks [2004] NSWCA 201, a decision which had very little relevance to non-economic loss when a reading of it revealed that the injury was to that plaintiff’s non-dominant hand when the injury was to this plaintiff’s dominant hand, a fact that was not faced up to by the appellants in their submissions.

43 Insurers who attempt to extend the issues arising in appeals in this way should not be entitled to take such an approach without penalty as to costs where such an approach fails.

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