Loxton v New South Wales

NEW SOUTH WALES COURT OF APPEAL

CITATION:     LOXTON v STATE OF NEW SOUTH WALES [2002]  NSWCA 194

FILE NUMBER(S):
40482/01

HEARING DATE(S):    17 June 2002

JUDGMENT DATE:      26/06/2002

PARTIES:
Danae Loxton by her next friend Debby Loxton - Applicant
State of New South Wales - Respondent

JUDGMENT OF:        Sheller JA Campbell AJA    

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     1439/99 Parramatta

LOWER COURT JUDICIAL OFFICER:   Delaney DCJ

COUNSEL:
W P Kearns SC/B Hughes - Appellant
A C Bridge SC - Respondent

SOLICITORS:
Napier Keen Solicitors - Appellant
Hicksons - Respondent

CATCHWORDS:
DAMAGES - injuries sustained by school student - challenge to trial Judge's findings on damages - distinction between general damages and special damages - future economic loss/ reduced earning capacity - medical expenses - new trial rejected

LEGISLATION CITED:
District Court Rules 1973
Supreme Court Rules 1970
Suitors' Fund Act 1951

DECISION:
1  Appeal allowed
2  Set aside the verdict and judgment of Delaney DCJ of 6 June 2001
3  In lieu thereof verdict and judgment for the plaintiff in the sum of $199,542.43 made up of general damages of $125,000;   Griffiths v Kerkemeyer $18,043.48;  agreed out of pocket expenses $1,498.95;  future economic loss $40,000;  future medical expenses $15,000;  together with interest on 50 per cent of the amount awarded for general damages at the rate of 5 per cent and interest on the amount awarded for past care at 5 per cent up to 2 June 2000 and thereafter at 10 per cent to the date of judgment
4 The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so entitled
5  The judgment to date from 6 June 2001.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40482/01
DC 1439/99

SHELLER JA
CAMPBELL AJA

LOXTON v STATE OF NEW SOUTH WALES

The appellant appeals against the award of damages made by Judge Delaney on 6 June 2001.  His Honour found the respondent liable in negligence for injuries suffered by the appellant and that conclusion was not challenged.

On 30 April 1996 the appellant was injured while present as a primary school student at Arcardia Public School, a school for which the respondent is responsible.  The appellant was aged 11 when she was injured after she and other school students were part of a human pyramid which collapsed.  The appellant was left by the accident with a lifelong condition of neurogenic bladder and bowel, and with an enduring sleep problem.  She had to carry an impairment of gait and lower limb function and suffered a substantial impact on her self confidence.

Judge Delaney awarded the appellant damages in the sum of approximately $131,500, comprised of the following:

-              general damages of $85,000;
-              interest on past general damages of $4,000;
-              future medical expenses of $1,000;
-              damages for reduced earning capacity of $40,000;
-              agreed out-of-pocket expenses of $1,498.95.

The appellant appealed on the grounds that the damages…