Lawson v Hubbard

[2020] NSWDC 605

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lawson v Hubbard [2020] NSWDC 605

Hearing dates:

8 October 2020

Date of orders:

13 October 2020

Decision date:

13 October 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $682,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – occupier’s liability – extensive burns received by plaintiff when defendant poured accelerant onto a homemade outdoor fire pit causing an explosion and resultant burns to the plaintiff who was sitting nearby – assessment hearing; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 13, s 16

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Penrith City Council v Parks [2004] NSWCA 201

State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Category:

Principal judgment

Parties:

Tre Lawson (Plaintiff)
Raymond Hubbard (Defendant)

Representation:

Counsel:
Mr R Brown (Plaintiff)
In Person (Defendant)

Solicitors:
Slater & Gordon (Plaintiff)

File Number(s):

2019/252552

Publication restriction:

None

Judgment

Nature of case

1. By statement of claim filed on 14 August 2019, the plaintiff, Mr Tre Lawson, now aged 21 years, claims damages for personal injuries due to extensive burns he sustained when he was aged 17 years, on 6 November 2016 whilst he was on premises occupied by the defendant, Mr Raymond Hubbard. The plaintiff claims those injuries were incurred due to the negligence of the defendant.

2. On 1 September 2019, the plaintiff’s statement of claim was served on the defendant. No defence has been filed and default judgment has been entered. The remaining issue to be determined concerns the assessment of the plaintiff’s claim for damages. The plaintiff’s damages must be assessed in accordance with the requirements of the Civil Liability Act 2002 (NSW) (“CL Act”).

Facts

3. On Sunday, 6 November 2016 the plaintiff was on the defendant’s premises to attend a birthday party and barbeque arranged for the defendant’s son. Whilst the plaintiff was seated near an outdoor homemade fire pit on the premises, the defendant poured an accelerant onto the flames in the fire pit. An explosion then occurred, following which the plaintiff sustained substantial burns with resultant scarring to large areas of his body, including his face, both upper limbs, both lower limbs, as well as incurring shock and psychological sequelae. In those events the plaintiff received burns to 44 per cent of the skin area of his body.

Evidence

4. The plaintiff’s evidence comprised his affidavit filed on 6 October 2020 as augmented by his oral evidence. His evidence was not challenged by the defendant, who was self-represented and appeared at the hearing via an AVL connection from Gunnedah Court House. Although Mr Hubbard did not give evidence, he expressed sincere and considerable regret over the events in question.

5. The documentary evidence relied upon by the plaintiff comprised a chronology (Exhibit “A”), and a Court Book containing medical and financial materials related to damages: Exhibit “B”, pp 1 – 342.

6. The plaintiff gave his evidence in a stoic and understated manner despite the distressing nature of his problems. There was no challenge to the content of his evidence, which I accept in its entirety.

7. Immediately following the explosion and burns an ambulance was called and the plaintiff was taken to Tamworth Base Hospital. From there, an air ambulance transported him to Royal North Shore Hospital Burns Unit, where he remained for a month. This was followed by a period of outpatient treatment.

8. Whilst at Royal North Shore Hospital the plaintiff underwent multiple skin grafting procedures and other related treatments, including biobrane therapy which was applied to different parts of his body: Exhibit “B”, pp 67, 64, 51, 50, 49. Grafts were also harvested from his back and from his thighs. He has been left with significantly disfiguring scars from those burns and from the related procedures that were employed to treat those burns.

9. The educational and economic consequences of the plaintiff’s injuries have been significant for him. At the time of his injury the plaintiff was a Year 11 student at his local high school. He was concurrently also attending a metals and engineering course at the local TAFE with a view to securing an apprenticeship in the mining industry that operated in the district near where he resided. His aim was to secure that apprenticeship at the beginning of 2017.

10. Following his discharge from hospital treatment, and following extensive subsequent outpatient treatment, the plaintiff could not face returning to school. Further pursuit of his TAFE course became untenable for him in view of the consequences of his injuries.

11. The plaintiff was therefore obliged to pursue alternative employment. He has been attending a TAFE course in barbering. There are aspects, including physical aspects, of that work which he finds that he cannot do. This will undoubtedly limit his future employability and earning capacity in that field when he soon qualifies as a barber. Such restrictions in his manual dexterity will also apply to many other types of physical work and work involving interaction with the public.

12. The plaintiff’s residual disabilities are extensive. He related those matters in an understated manner. However, it was evident that his disabilities bothered him significantly and cause him physical and psychological difficulties. He internalises the psychological problems that have been caused by his scarring, which are demonstrated in the photographic exhibits.

13. In summary, the scarring to the plaintiff’s limbs, and to a lesser extent his neck and face, is extensive. He suffers from embarrassment and self-consciousness due to the scarring. At work he covers his scars as best he can, including to avoid injury and infection.

14. Although he has found a way of dealing with, and making light of intrusive questions about his scarring, he finds that he is regularly subjected to questions and curiosity about them. His reactions are largely internalised, which may not be a good thing for his longer term wellbeing.

15. The plaintiff’s scars are painful. They are vulnerable to contractures and injury. He suffers from skin tightness and skin dryness in the scarred areas. He must avoid sun exposure of the scarred areas. He finds it necessary to use creams, moisturisers, Vitamin E oil, and other skin treatments which will involve him incurring regular recurring expenditure over his lifetime. He must also strive to control his weight as the grafted areas will not stretch.

16. The plaintiff experiences restricted right upper limb movements due to his scarring. He is limited in his ability to lift and manipulate heavy objects for that reason and because of the ever-present need to avoid tearing his grafts. Those problems will permanently hamper his ability to exercise an earning capacity in the future and will also impair his ability to carry out commonplace domestic tasks.

17. The plaintiff has been left with significant psychological problems. Apart from sleeping difficulties due to nightmares, understandably, he has a phobia about fires. He also has social anxiety. He avoids meeting people and suffers a loss of confidence due to embarrassment over his scarring.

18. The plaintiff is unable to play the contact sports which he previously enjoyed. This is on account of the risk of damage to his scarring, which also restricts his ability to interact with his two infant children. That problem is unlikely to lessen for him.

19. At present he and the mother of his children are taking a break from their relationship. His disabilities will very likely cause him difficulty in re-partnering on account of his physical, cosmetic and psychological issues.

20. All of those aspects of the plaintiff’s pain and suffering have a significantly adverse impact upon his ability to enjoy the amenity of his life.

Assessment of damages

21. The plaintiff’s claim for damages involves assessment of non-economic loss, past and future economic loss, with superannuation components and future treatment expenses.

Non-economic loss

22. The evidence summarised at paragraphs [5] to [20] above, plainly demonstrates that the plaintiff has, and will continue to suffer, a substantial interference with the amenity and enjoyment of his life. In my assessment, the plaintiff’s injuries and disabilities, including his cosmetic scarring, call for a substantial award of damages according to a percentage of a most extreme case for the purpose of assessing his damages for non-economic loss: s 16 of the CL Act. I accept the plaintiff’s submission that the appropriate assessment is 40 per cent. This equates to $274,800. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $274,800.

Past economic loss

23. The plaintiff claims past economic loss in the buffer amount of $20,000. That claim is justified as follows.

24. The plaintiff did not complete his schooling as planned. This was due to his injuries. There was a two-year delay in the commencement of his apprenticeship. In the financial years 2019 and 2020 his net earnings averaged $28,490 per annum: Exhibit “B”, pp 327 – 336.

25. I consider the amount claimed for past economic loss is calculated in a reasonable sum having regard to the accident-related period of delay experienced by the plaintiff in entering employment and the lesser level of earnings he has derived at the time of entry into employment. I therefore assess his damages for past economic loss in the amount of $20,000.

Past loss of superannuation

26. In accordance with convention I assess the plaintiff’s damages for past loss of superannuation at 11 per cent of the amount assessed for past loss of earnings, in the amount of $2,200.

Future economic loss including future loss of superannuation

27. At the age of 21 years, with a future working life of 66 years ahead of him, the plaintiff faces many restrictions in his ability to exercise his earning capacity. Those restrictions relate to his physical disabilities and the psychological sequelae of his injuries.

28. His work as a barber will be restricted on account of his scarring as he has described in his evidence. A wide range of manual occupations will therefore also be closed to him. He will also be at a significant disadvantage in competing for employment on the open labour market. He was not burdened with any of these restrictions before he sustained his injuries.

29. The circumstances do not permit a precise mathematical calculation of the kind contemplated by s 13 of the CL Act. Those circumstances indicate that a buffer sum would be the appropriate means by which to assess damages for the plaintiff’s future loss of capacity: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

30. In view of the plaintiff’s impairments, his young age, and the obvious impact his impairments will have upon him in the form of future financial loss, I consider that the buffer sum to be awarded for this head of damage should be substantial, including an allowance for a commensurate loss of employer-funded superannuation. I therefore assess damages for future economic and superannuation losses in the amount of $350,000.

Future treatment expenses

31. The plaintiff makes no claim for past treatment expenses. This is on account of the fact that the plaintiff’s treatment was provided to him in the public hospital system. It should also be noted that Mr Hubbard, through fundraising efforts that he had undertaken, gathered funds for the treatment of the plaintiff and other victims who suffered burns in the incident. Those amounts do not require reimbursement.

32. The plaintiff faces the lifetime prospect of incurring regular expense for pharmaceutical preparations to assist him to manage his skin problems. In addition, he will need to see his general practitioner, specialists such as a dermatologist and a plastic surgeon and other allied health professionals at unpredictable intervals and frequency. He also faces the prospect of future surgery if his scars breakdown for whatever reason, such as contact abrasion or due to weight gain. Those factors call for a significant allowance for future treatment expenses. I therefore assess his damages for future treatment expenses in the buffer amount of $35,000.

Summary of damages assessment

33. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$274,800
(b) Past economic loss	$20,000
(c) Past loss of superannuation	$2,200
(d) Future economic loss including superannuation	$350,000
(e) Future treatment expenses	$35,000
Total	$682,000

Disposition

34. The plaintiff has established his entitlement to a damages award for $682,000 and he should have a judgment for that amount.

Costs

35. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendant should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

36. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $682,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

11 November 2020 - Slip Rule Amendment to figures in paragraphs [22], [33], [34] and [36] due to change in maximum amount for non-economic loss from 1 October 2020.

Decision last updated: 11 November 2020