M v M No. DCCIV-01-302

M v M
[2004] SADC 18
Judge Burley
Civil

The plaintiff claims damages for personal injury caused by the negligence of the defendant. The plaintiff was born on 20 September 1984. When these proceedings were commenced she was an infant and sued by her mother as next friend. The plaintiff has now attained her majority and she has adopted these proceedings.
The defendant has admitted liability and the trial proceeded as an assessment of damages. As a result of the admission of liability I make the following findings of fact in accordance with paragraphs 2-4 of the statement of claim:
“2The defendant is the aunt of the plaintiff.
3On 13 July 1988 the plaintiff when in the care of the defendant at the defendant’s premises ... (‘the home’) in the State of South Australia suffered personal injuries.
PARTICULARS
3.1    During the morning of 12 July 1988 the plaintiff then aged 3 years had been left by her parents in the care of the defendant to stay overnight at the home.
3.2    At approximately 8.30 am on 13 July 1988 the plaintiff was left in the sitting room of the defendant’s home watching television in the company of her cousin ... who was then aged 8 years whilst the defendant attended to household duties in other rooms of the house.
3.3    Before leaving the sitting room the defendant placed an operating electric bar radiator on the floor of the living room adjacent to a television set that the plaintiff and [her cousin] were then watching.
3.4    Whilst the defendant was out of the room the plaintiff approached the television set and the lower end of her nightdress came in contact with the bar of the radiator causing the nightdress to ignite.
3.5    In consequence the plaintiff sustained severe burns to her body.
4The said incident and the plaintiff’s injuries were caused by the negligence of the defendant.
PARTICULARS OF NEGLIGENCE
The defendant was negligent in that she:-
4.1    Failed to exercise appropriate care and skill in the supervision of the plaintiff who had been left in her care.
4.2    Left the plaintiff unsupervised in the living room in which there was an operating unguarded electric radiator.
4.3    Placed an electric bar radiator which was not fitted with a safety grille on the floor of the living room in the presence of two young children.
4.4    Failed to give any appropriate warning to the plaintiff about the dangers of the presence of the radiator.
4.5    Failed to take any or any adequate means so as to prevent the plaintiff from coming into contact with the said radiator.
4.6    Placed the operating radiator in the proximity of two young children.”
The plaintiff, her mother and a friend of the plaintiff gave evidence. I found each of them to be witnesses of truth.
Medical evidence was also adduced by way of medical reports and viva voce examination. The report of Mr R Bruce Davey dated 27 March 2000 was tendered. I accept the evidence and opinions contained in the report. His report reveals that the plaintiff was admitted to the Women’s and Children’s Hospital on 13 July 1988, having been transferred from the Lyell McEwin Hospital. When admitted, there were burns present over the left arm, chest, right thigh, left thigh and both lower legs amounting to approximately thirty per cent of the area of her body. Her burns were a combination of superficial and deep burns. She was treated with intravenous fluid resuscitation for a period of 48 hours, at the commencement of which the burnt areas were cleaned and dressed. The burns were re-assessed on a regular basis. On 27 July 1988 she underwent operative treatment for the excision and graft of both lower limbs. This involved almost the whole of the right thigh and partially on the left and right lower limbs, the donor site being from the left leg and the left thigh. Further surgery was undertaken on 4 August 1988. This involved excision and graft of burns to the anterior chest wall, the left arm and shoulder and some small areas on both thighs. There was a further episode of surgery on 11 August 1988 when there was further excision and grafting on the right thigh, the right calf and redressing under anaesthesia of the previously grafted areas. During the periods of surgery the plaintiff’s general condition remained satisfactory.
The plaintiff required daily dressings, baths, physiotherapy and continuing nursing management. All areas gradually healed. A scar management regime was instigated. The plaintiff was able to be discharged from hospital on 21 September 1988. At that stage all areas were well healed. The plaintiff was able to eat, drink and walk. Her scar management was undertaken by the use of material called Hypafix, which was covered by a pressure garment called Tubigrip. This treatment has been referred to in the evidence of both the plaintiff and her mother.
She was reviewed from time to time in the Burn Clinic. At the first review there was some hypertrophy developing on the right upper thigh, the right knee and the left arm. Scar management using a silicone pad was introduced.
When reviewed on 29 March 1989 it was noted that the grafted areas were mature and soft but there was hypertrophy in the areas surrounding the grafts. Treatment for this condition was continued. Most areas had improved satisfactorily but there was a persistent mild band over the lateral aspect of the right thigh and over the lateral aspect of the right knee. There was a full range of movement in all areas. Scar therapy was discontinued.
Since April 1991 the plaintiff has been reviewed on a regular basis. She underwent further treatment with silicone gel to the right thigh in July 1993 for a period of six months to relieve a tight band.
On 14 October 1998 it was noted that the plaintiff was undergoing breast development causing some distortion of the right breast. She was started on silicone gel for the scars over the right chest and below the right breast. The plaintiff continued with this treatment on a regular basis until November 1999.
On 12 January 2000 it was noted that there was moderate breast development with the development being equal and symmetrical and no obvious tightness in relation to either breast. Consequently therapy in relation to breast distortion was discontinued.
As at March 2000 the plaintiff had scars over her right chest, both thighs, both lower legs and her left arm. There was some tightness and hardness of the scar present over the right hip but with no restriction of movement. All the scars were pale with minimal thickening and no limitation of movement.
Mr Davey was of the view that the scarring will always be present with resulting cosmetic disability. He stated that the presence of the scarring may lead to psychosocial problems, although as at March 2000 he thought that the plaintiff appeared to be well-adjusted towards her scars.
Mr Davey said that there was a possibility that further surgery in the future might be necessary.
The report dated 2 August 2002 of Mr A L Sparnon, paediatric surgeon, was tendered and he gave brief evidence. I accept his evidence and opinions.
The plaintiff was referred to Mr Sparnon by her solicitors for the purposes of obtaining a medico-legal report. He saw the plaintiff on 1 August 2002. On examination Mr Sparnon found that the plaintiff “has extensive scarring involving her right anterior chest including her right breast and nipple, all of her anterior abdomen, most of her right leg, upper left leg and left upper arm”. He found the areas of scarring to be well healed with the skin supple, pale and healthy. He noted differences in colour and texture from the adjacent normal skin. The scar on the right anterior chest was thicker. He noted a band which minimally distorts the outer quadrant of her breast downwards and inwards. He also noted a thick scar or tight band to her right upper thigh. He said that it was not clinically causing any problems and was not interfering with hip movement. He also observed a tight band running longitudinally along the medial aspect of her right thigh. This did not cause any symptoms. He noted a thick band posteriorly on her right thigh and another on the anterior aspect of her left armpit. Neither of these bands caused any symptoms or deformity, apart from the cosmetic disfiguration.
Mr Sparnon was of the view that the scarring would not change significantly in appearance in the future. He thought that the minimal deformation of her right breast may cause problems in the future with either further development of her breast or when it enlarges with pregnancy. In addition, he was of the view that her right nipple had been severely burnt and was clearly not normal. He thought that it was possible that she may have problems with breastfeeding on the right side in the future. He did not think that there was any need for further surgery at this stage, although he could not rule out the requirement for surgery in respect of the right breast and nipple. He thought it would be necessary for this aspect to be kept under review until 2007. He was of the view that the plaintiff would need to be reviewed generally at least six monthly and that she would have to continue the use of substances such as Cicacare to prevent further contracture or scar development.
Mr Sparnon noted that the plaintiff had regular meetings with a psychologist, Ms Jane Tiggeman, (who also gave evidence) and he thought that these attendances were beneficial. He said:
“[The plaintiff] and her family seem to be coping very well with this major insult to their life. However support should continue as there are still questions which cannot be answered.”
The plaintiff was referred to Mr Timothy Edwards, a plastic surgeon, whose report is dated 1 August 2003. Mr Edwards gave evidence. I accept his evidence and his opinions. He saw the plaintiff on 8 July 2003. He was of the view that the plaintiff would be unable to perform duties which required long periods of standing, where there was an excessively hot workplace or where she was required to wear a uniform of a style which she found unacceptable. She is unable to play physical sport due to the restrictions of her scarring and she is uncomfortable where casual dress codes entail exposure of scarred areas of her body. He thought that her condition had stabilised and that she had sustained a significant and permanent residual disability. He thought it would be helpful to release the burn contracture behind her right knee. He thought that once breast development is complete she may require some reconstructive surgery.
During the course of his evidence at trial, Mr Edwards provided a detailed explanation of corrective surgery that the plaintiff might undergo in relation to her right breast. He stated that it was possible to take from a donor site an area of skin with accompanying blood vessels and to introduce that to the site of reconstructive surgery so that “living skin” introduced in this way would be able to grow normally. If such surgery were to be carried out the donor site would be in the area of the shoulder blade. The taking of such skin would leave a pronounced scar to the back. When the plaintiff was asked about whether or not she might undertake such reconstructive surgery, the view she expressed was that she would be very loathe to do so because there is no scarring presently on her back and, as a result, it was the one area of her body which she was able to leave exposed in accordance with her taste in clothing.
The plaintiff was referred to Professor R D Goldney, a psychiatrist, whose report is dated 19 December 2002. He saw the plaintiff on 16 December 2002. During the course of that interview she recounted to him a history consistent with the evidence that she gave at trial. Professor Goldney was of the view that the scarring sustained by the plaintiff had clearly impacted upon her self-perception and the way in which she relates to others. He thought that she had been able to cope well, citing her achievements and schooling and her range of friendships and social activities. He was of the view that there were not sufficient symptoms of emotional distress to warrant a formal psychiatric diagnosis, although at times it is probable that her symptoms would fulfil the criteria for an adjustment disorder with anxious and/or depressed mood. He observed that she is concerned about her body image and that has compromised the freedom with which she has pursued interpersonal relationships with males. On the history given to him he thought that she was venturing into such relationships and that she had a realistic view of the possibility of rejection and of the need to keep pursuing relationships. He thought that she would be able to pursue heterosexual relationships in a manner which she will find comforting and accepting but there would be a certain degree of trepidation.
Professor Goldney thought that the plaintiff benefited from the sessions she had with Ms Tiggeman. He thought that the future treatment envisaged by Ms Tiggeman was appropriate. He was of the view that it is probable that at times in the future the plaintiff will experience feelings of anxiety and depression in relation to her cosmetic disability. These may extend to episodes of clinically significant emotional distress which would require some formal support therapy.
I accept the evidence and the opinions of Professor Goldney.
Ms Lindy Petersen is a psychologist and she provided a report dated 15 July 1994 which was tendered by consent during the course of the trial. At the time the plaintiff was 9 years and 9 months old. The tests administered were designed to test the plaintiff’s intellectual function. The summary contained in her report is as follows:
“[The plaintiff] ... is a socially responsive and verbally mature child with an intense nature, needing to have her social and learning needs met her way. She has high average general intelligence, full scale IQ = 117, overall mental age around 11½ years. Her academic abilities are generally in line or above her mental age potential although she may not always functionally apply these in the school context due to her need to avoid failure and interest in social agenda. At present, she is emotionally young for her years despite her apparent verbal maturity and tends to use opting out or denial techniques rather than take responsibility for issues in the social and learning areas.”
Ms Jane Tiggeman, who is a psychologist, gave evidence. She provided two reports dated 2 January 2002 and 11 November 2003, both of which were tendered in evidence. I accept her evidence and opinions.
Ms Tiggeman took a detailed history from the plaintiff, broadly consistent with the evidence given by the plaintiff at trial. She administered a number of tests. Ms Tiggeman found that the plaintiff had significantly low self-esteem in the area of body image and physical appearance and confidence regarding her sexuality. Initially after the incident the plaintiff experienced symptoms of shock, nightmares, sleep problems and grinding of teeth which were indicative of post-traumatic reaction. Over time those psychological symptoms have improved significantly. The plaintiff has a greater than normal difficulty in building trusting relationships and engaging in physical intimacy with males. In Ms Tiggeman’s opinion, this is a direct result of her fear of rejection as a result of the scarring.
Ms Tiggeman’s second report came after a series of counselling sessions between March 2002 and November 2003. She reported that the plaintiff had become more confident in her relationship with boys and that she was more outgoing.
In her evidence at trial Ms Tiggeman agreed that the plaintiff’s intelligence was at the high average level. She stated that when she first saw the plaintiff her aims for her future life were rather limited in that her first priority was to marry and have a family. Ms Tiggeman considers that from the discussions she has had with the plaintiff about her future, the plaintiff is now embracing a wider range of options, including a working career.
She has also discussed with the plaintiff her occasional bouts of depression. She was of the view that as a result of discussing such matters with the plaintiff, the bouts of depression have become less frequent.
During the course of her evidence she revised a previous opinion about the further sessions that would be necessary between her and the plaintiff. She said at trial, and I accept, that a further ten sessions would be appropriate. She also thought it likely that in the future the plaintiff would benefit from treatment from a psychologist from time to time in relation to the more serious bouts of depression that she might be experiencing. She was of the view that as many as six consultations may be needed in order adequately to deal with the depression or any set-back experienced by the plaintiff giving rise to the depression.
Ms Tiggeman said that such bouts of depression may affect the plaintiff’s ability to carry out her workplace responsibilities and the therapy provided by a number of sessions with a psychologist would assist the plaintiff not only in relation to her life generally but also specifically in relation to coping with her employment.
Photographs of the plaintiff’s scarring were tendered (Exhibit P1) which graphically illustrate the nature and extent of the serious scarring sustained by the plaintiff. I also had the opportunity to view the plaintiff’s scarring during the course of the trial. There is, and can be, no dispute that her legs and upper body have been grossly disfigured.
I turn now to the evidence of the plaintiff. She was an impressive witness. At the time of the accident she was three years of age. At the time of trial she was 19 years of age. The plaintiff continues to live with her parents at the family home. She has a 16 year old sister.
Fortunately for her, her memory of the pain and suffering to which she was subjected as a result of the incident and the treatment that she received until late September 1988, has dimmed. There can be no doubt, however, that she suffered excruciating pain as a result of the incident and the treatment which she had to undergo as a result of the severe burns sustained by her. She now has a remarkably mature attitude to the ordeal which she underwent and to the fact that her body has been and will remain grossly disfigured.
The plaintiff’s more distinct memories of her condition commence after completion of kindergarten and when she first went to school. She remembered that she was unable to participate in all of the play activities that other children engaged in. She had to be careful that she was not knocked about and that she did not fall over in order to protect the scarred areas. She was, however, able to go swimming, provided that she wore a pressure suit and adequate sunscreen cream for protection of those areas of the body not covered by the pressure suit. She had to wear the pressure suit for about twelve to eighteen months.
She was not conscious of any restriction in the movement of her legs and arms in the early days at school. She recalls that after the pressure suit treatment, she had to use a sticky gel substance called Cicacare which she understood helped with the softening of the scar tissue. The Cicacare came in square sheets which were applied to the affected areas. She recalls that she used that substance throughout primary school. She was eventually able to apply the substance herself to the scarring, apart from scars situated at the back of her legs. At night it was necessary for her to wear a tight pair of pants to hold the Cicacare in place.
She said that for most of primary school, up to Years 7 or 8, she had regular dreams about the incident. These would occur most nights and she would be woken up as a result of the dream. Although she did not elaborate on the nature of the dreams, it was clearly a difficult issue for her when she gave evidence about them. Based on her mother’s evidence, they were more nightmares than dreams. In any event she would inevitably be woken up and she would go to her parents’ bedroom where she would stay for the rest of the night.

In addition to using Cicacare, the plaintiff also used a moisturising lotion on her scarring in order to keep it soft. She continues to use various types of moisturising lotion every night.
During the course of her evidence, the plaintiff was asked whether she enjoyed primary school and she answered that she did not. She explained that “that’s where it all began” (T21/26). It was at primary school that she became aware that she was different from the other children from their behaviour towards her. There was a constant reference either by words or by attitude to her scarring. She thought that she first became aware of her difference and of other children’s attitude to her scarring when she was in about Year 4 or Year 5. Her awareness was that she “was different and that people weren’t going to accept it all the time” (T22/14). The “it” contained in the passage quoted refers to her scarring but as a consequence it must necessarily also mean that she was aware that she would not be accepted by other school children because of her scarring. This must have been a painful experience for her.
It is apparent from her evidence that this situation continued throughout her school life, perhaps diminishing to some degree in the later years of school when a more mature attitude prevailed at least in respect of some of her school companions. This is evidenced by the fact that she has been able to form friendships with a small number of girls during her school career both at primary school and at the two secondary schools attended by her.
The plaintiff is now going through what will probably prove to be the most difficult time of her life in relation to her scarring. She is an attractive young woman with a pleasant personality whose actions are largely governed by the cosmetic disability caused by her injuries. It requires little imagination to say that her experience of life is vastly different from that of the type of young woman she would have been had she not sustained these injuries. She is always aware of the disfigurement. She has always dressed to hide the disfigurement. Young men and women of her age are very conscious of their appearance because they are embarking upon serious relationships with members of the opposite sex. As young people, yet fully to mature, they are uncertain about their ability to form such relationships even when they are completely able-bodied. In the case of the plaintiff, she has to cope with a disfigurement which seriously undermines her self-confidence.
Although I agree with Professor Goldney’s opinion that she does not suffer from a psychological injury, there must be occasions, as he suggests, when her psychological well-being, or lack of it, constitutes a post-traumatic reaction amounting to psychological injury. In addition, my assessment of damages is not formulated merely by reference to both physical and psychological injuries. The assessment is made by reference to the effects of whatever injury is sustained and those effects include a severe assault upon the plaintiff’s self-confidence, particularly when dealing with young men. As she gets older, and if she is able to form a stable relationship with a young man, her anxiety will abate, but she is still left with the uncertainty of being able to maintain such a relationship on a long-term basis and with the uncertainties relating to her relationship with all those with whom she comes in contact.
Much of the plaintiff’s evidence was directed to the difficulties that she experienced at school, particularly with regard to the requirement that she wear a school uniform. A dress was not sufficient to cover the scarring to her legs. When she wore a dress it was necessary for her to cover the exposed part of her legs with sunscreen lotion or to wear stockings. She also had to deal with the adverse comments made to her by some of her fellow students in relation to her scarring.
When she was in Year 7 her parents took her to see a psychologist, Ms Chorney. The plaintiff was having difficulty at school and did not want to return to school. She saw Ms Chorney on a number of occasions. She changed school in Year 7. At the new school she was required to wear a dress even though, through her parents, she asked for permission to wear slacks. This permission was not given, so she took to wearing heavy stockings which were uncomfortable, particularly in summer. The itching caused by wearing the stockings aggravated the scarring when she scratched her legs.
At home she was able to wear comfortable clothing because she did not feel embarrassed at home when wearing clothing which exposed her scars.
Later at secondary school she wore slacks which formed part of the physical education uniform. This was not officially permitted by the school and she was subject to detention for doing so, but she was prepared to accept that punishment if it meant she could wear slacks instead of a dress.
Her condition also affected her study. Her primary goal was to fit in with the other students and to some extent she neglected her studies in order to pursue that goal. However, she had some nasty experiences in secondary school. She told of an incident where a female student whom she regarded as a friend made hurtful remarks to her about her scarring which ended their previously friendly relationship.
When she was about 15 she obtained some part-time work as a sales assistant with Harris Scarfe. She worked on a Thursday night and Saturday during school term and more regularly during school holidays. She found that at the end of the day her legs would be very sore. This was relieved by massage she received at home. She also had problems with her feet caused by standing all day when working as a sales assistant.
In her later years of secondary school, she and her friends became interested in boys and outings, such as going to the pictures, were undertaken in groups. The plaintiff has never had a boyfriend, although when she was 18 she came close to forming such a relationship. She gave evidence of the difficulties that she experienced in forming such relationships. She finds it very hard to be trusting in a relationship with boys because of her fear of rejection.
She is not able to dress in the clothing other young women of her age choose, where to do so would expose areas of the scarring on her body. This becomes a particular problem in summer where her choice of clothes is necessarily quite different from those worn by her female friends. This, understandably, is a matter of real concern to her.
She now sees Ms Tiggeman and finds that the sessions she spends with her are very helpful. I have no doubt that this is so and that such treatment should continue into the future as suggested by Ms Tiggeman.
The plaintiff completed Year 12. She wishes to pursue a career in tourism and hospitality management. Hotel management is her ultimate aim but she would like to travel before settling down. In evidence she says that she doesn’t have the confidence to apply for jobs within the tourism and hospitality industry. She was asked how she saw her lack of self-confidence. She said (T34/35):
“I can’t be judged. I hate putting myself in a position where I am judged, even if it’s nothing to do with the scars, because even if they don’t know, I automatically think it is because of that. I can’t handle rejection at all.”
She is currently in employment in a receptionist/clerical position. She considers that she obtained this employment on the recommendation of a close friend. Be that as it may, she has been able to maintain this position on her own merit.
The plaintiff has a regular social life, but a disturbing feature of it is that she feels as if she needs to consume alcohol in order to lessen her inhibitions when socialising with boys.
The plaintiff is aware that she may need surgery in the future both in relation to the damage to her nipple and the severity of the scarring behind her knees. She is justifiably frightened of further surgery but it seems to me that if she is advised in the future that benefits may arise from further surgery in the area behind her knees, she would undertake it.
The plaintiff, as has been noted by the medical witnesses, copes well with her injuries, but it is also clear that the strength required to cope drains her emotional resources.
The plaintiff’s mother next gave evidence. She remained with the plaintiff at the Children’s Hospital twenty-four hours a day for nine out of the first ten days of treatment. Thereafter, until the completion of treatment at the hospital on 21 September 1988, she was at the hospital during the day, returning home at night. She recalled that the plaintiff underwent three skin grafts respectively on 27 July, 4 August and 11 August 1988. The plaintiff had to be isolated in her own room for treatment purposes. Only her parents were allowed into her room.
The plaintiff was bedridden for the length of her stay in hospital. Her bandages had to be removed from time to time, particularly when she underwent skin grafts. This was an extremely painful process which caused great distress to the plaintiff. The plaintiff’s mother learned to assist with the bandaging so that she could perform this function when the plaintiff returned home.
Because the plaintiff was immobilised whilst in hospital, it took some time for the plaintiff’s mother to assist the plaintiff with re-establishing her ability to walk normally.
The plaintiff had to wear a full body pressure suit over a substance called Hypafix for approximately twelve to eighteen months. This had to be removed for each of the medical appointments undertaken by the plaintiff after her discharge from hospital. For the first few months after her discharge the medical appointments were weekly; they then became fortnightly and later at longer intervals. By about 1992 the medical appointments were annual. When the plaintiff underwent breast development the medical reviews occurred three monthly over a period of about eighteen months when they reverted to annual reviews.
As to the removal of the pressure suit on the evening prior to outpatients visits, the plaintiff’s mother stated that that was a relatively straightforward exercise but it had to be undertaken carefully, particularly when removing the legs of the pressure garment. After the suit was removed, she then used a substance which assisted with the removal of the Hypafix. Once this substance was applied she bandaged the affected areas of the plaintiff.
The plaintiff was not permitted to walk or move about when she did not have the pressure suit on so if, for example, she needed to go to the toilet, she had to be carried.
On the following morning, the bandage applied the previous night was taken off. It was at this stage that the Hypafix had to be removed. This was a painful exercise because sometimes the skin came off with the substance. It was distressing both to the plaintiff and to her mother. The removal of the Hypafix usually took about an hour or an hour and a half.
After the removal of the Hypafix bandages would again be applied to the plaintiff, who would then be taken to the hospital.
This situation persisted for the first few months after the plaintiff’s discharge from hospital. Afterwards, when the scarred areas were toughened up, it was possible to put the pressure suit back over the affected areas without the Hypafix.
It was also necessary to remove the pressure suit when the plaintiff had a bath. This was a daily occurrence. It was not necessary to remove the Hypafix when the plaintiff was bathed.
The plaintiff’s parents impressed upon the plaintiff right from the outset that it was necessary for her to wear the pressure suit if she had to move about and that, conversely, she could not move about if she did not have the pressure suit on.
Upon the plaintiff’s discharge from hospital, it was necessary for the plaintiff’s mother to attend to any punctures or breakages that occurred in the scarred areas. This was achieved by cutting a small opening in the Hypafix and applying the appropriate medication which was then covered by a layer of Hypafix. This had to be attended to whenever a breakage or puncture occurred, so the plaintiff’s mother carried the necessary substances with her at all times.
The plaintiff suffered from itching of the skin, particularly during the first twelve months after her discharge from hospital. It was a particular problem when the body suit was worn. The itching could be relieved if the plaintiff moved about or took medication. If she stood still for any particular length of time the itching became unbearable.
With the passage of time the scarred areas have become tougher and less vulnerable to being punctured, but they remain more vulnerable to damage than the areas of normal skin. This is a permanent disability.
It was necessary for the plaintiff’s mother to take time off work for a period of 11 weeks after the incident. At the time she was working approximately 25 hours a week. Thereafter it was necessary for her to take a day off work on those occasions when the plaintiff had to attend as an outpatient at the Children’s Hospital.
The plaintiff was due to start kindergarten a few days after the incident. As a result of her injuries she was unable to do so until later in 1988.
She remained at kindergarten for most of 1989 and then commenced primary school. It was at about this time that she was able to discontinue wearing the pressure suit. Thereafter the substance Cicacare was used. That helped with keeping the skin soft and pliable. Once the plaintiff no longer had to wear the pressure suit, it was important that the scarred areas were not exposed to the sun. At primary school the plaintiff was able to wear clothing which covered the scarred areas.
The plaintiff’s mother confirmed that up to about age 10 or 11, the plaintiff was unself-conscious about her scarring but from that age onwards she became conscious of the fact that she was different because of her scarring. By the time she was in Grade 5 she became aware that she was being teased about her scarring and this upset her greatly.
The plaintiff’s mother referred to the time when Ms Chorney was consulted. By that time it was obvious to her that the plaintiff was not coping well with her scarring and that she had become reclusive. A member of the hospital staff suggested that Ms Chorney be consulted and that was undertaken. The plaintiff and her mother went to see Ms Chorney on four or five occasions and she observed that these visits were helpful to the plaintiff. It is clear from what was said by the plaintiff’s mother in evidence that the plaintiff’s tendency to be reclusive was lessened by undertaking the strategies suggested by Ms Chorney.
Her parents also contributed materially to the plaintiff developing a more positive attitude in relation to her dealings with others. Her mother said that the plaintiff “was never allowed to use her burns as an excuse not to try something” (T105/18). The plaintiff’s parents encouraged her by various means to cope with the difficulties that she experienced, particularly the difficulties in dealing with other people.
The plaintiff’s mother stated that it was the plaintiff’s wish, when she was about 14 years of age, to proceed with her study with a view to attending university or, if not university, a TAFE course relating to the tourism industry. She noticed, however, that in the plaintiff’s later years at secondary school, her attention to her studies dropped off. She became more focussed upon her appearance and the question of whether or not she was able to cover up her scarring. I am satisfied, on the basis of what both the plaintiff and her mother have said in that regard, that the plaintiff’s studies were adversely affected in the later years of high school because of her concern for her appearance and her desire to be accepted by her school companions.
It is apparent from the evidence of the plaintiff’s mother that the plaintiff undertook subjects in Years 11 and 12 which would enable her to apply for university entrance. In fact the plaintiff applied for entrance into a tourism based under-graduate degree but was unsuccessful.
The plaintiff’s mother confirmed that during the latter years of school, the plaintiff worked part-time with Harris Scarfe and obtained a full-time position with that company when she left school. She had more trouble with the physical affects of her scarring when working at Harris Scarfe when compared with her present job.
The plaintiff both in the past and currently has been subject to mood swings. At times she appears to be depressed and moody and at other times she can be very aggressive. At other times she might burst into tears and continue sobbing. On occasions she says that she wants to see Ms Tiggeman. Her mother believes that the plaintiff tells Ms Tiggeman more about her feelings than she does her parents. She is of the view that the plaintiff has derived a great deal of assistance from the counselling she receives from Ms Tiggeman.
A close friend of the plaintiff gave evidence. They were at secondary school together and they became close friends in about Year 10. They work together at the Adelaide TAFE. The plaintiff stays at her house most nights of the week and they go to work together. They go out together on weekends. She confirmed that the plaintiff dresses to cover her burns. She has observed the plaintiff in her dealings with boys and the fact that she is wary in her relationship with them. She has also noted that the plaintiff sometimes has bouts of what she described as depression. She has also observed bouts of tearfulness on the part of the plaintiff without any apparent cause.
Assessment of Damages
I turn now to the assessment of damages. In undertaking this task I have derived a great deal of assistance from the judgment of Smith, DCJ in Slattery and Slattery v Beare and Ors (2001) 213 LSJS 131, in particular paragraphs 155 et seq. To the extent that it is applicable to this case, I have adopted the approach taken by his Honour. I do not intend to refer to the numerous authorities referred to by him during the course of his judgment. It is sufficient for me to say that I respectfully agree with the approach taken by him. My assessment is based on the factual findings as set out by me in the preceding paragraphs of these reasons together with the further findings of fact made by me during the course of my discussion of the approach that I have taken in relation to the assessment of damages.
Non-economic Loss
I agree with Mr Holland, counsel for the plaintiff, that the injuries sustained by the plaintiff were “physically and emotionally horrendous”. She has been left with scarring, the nature and extent of which I have already described. She had to cope with this as a young child, the most difficult part of which would have been her stay in hospital for approximately ten weeks after the incident and the requirement thereafter to wear a pressure suit for approximately twelve to eighteen months. The severe pain associated with her treatment must have been a very frightening experience for the plaintiff as a young child. There was a long period of treatment after she was released from hospital where she was aware that, associated with review visits to the Outpatients Department, there was the need to prepare for same and to endure the painful removal of the pressure suit and the painful removal of the Hypafix under the pressure suit. She was required to wear the pressure suit whilst at kindergarten and this and the fact of her injuries precluded her from engaging in the more vigorous activities undertaken at the kindergarten.
Once the pressure bandage was removed she had the inconvenience of protecting the exposed skin from the sun. She did this by means of clothing and sunscreen lotions. As she progressed through primary school she became aware that she was different from the other children because of her scarring and she was subjected to teasing from other students which was a painful experience for her. The presence of the scarring is something which she has to live with every day. She has been able to form close friendships with other girls but she is, nevertheless, wary in her relationships with others to varying degrees. She feels comfortable with her family but if there are visitors she either makes herself absent or makes sure that her clothing covers her scarring. I do not need to repeat what I have already said about the effect the scarring has had upon her ability to form a relationship with boys.

Based on Dr Edwards’ evidence, I think it is inevitable that the plaintiff will need to undergo surgical revision of her scars, particularly in 20 to 30 years time. The situation with regard to possible cosmetic surgery in relation to her right breast is less clear. The plaintiff is reluctant to undertake such surgery, but she may, particularly if she has children, need to revise her present reluctance to do so in light of what occurs in the future. Some allowance must be made for this possibility.
I think it is likely that she will continue to have bouts of depression, particularly if she suffers set-backs in relation to her dealings with others. Allowance for this should be made by way of general damages in addition to the cost of treatment from a psychologist. To some degree, her psychological wellbeing depends upon whether or not she is able in the future to establish a lasting relationship with a young man. On the view that I have formed of the plaintiff, I think it is likely that she will be able to do so, although it will be far more difficult for her given the understandable reservations she has about giving her full trust to her future partner.
Although much of the evidence given by the plaintiff was directed to the question of whether or not she could form a satisfactory relationship with a young man, the consequences of her injuries have not been confined to that question. It is clear from her evidence that her difficulties with forming new relationships applies to all persons with whom she comes in contact, both male and female. In addition, I have not overlooked the fact that a young woman’s self-esteem is based not only upon her attractiveness to members of the opposite sex but also to her relationships with female peers. Like all other young women of her age, the plaintiff wishes to feel at ease with her female friends and acquaintances and the effect of her scarring has a material bearing upon her ability to do so. An important part of that aspect of her life is the restriction on her conduct imposed by her bodily scarring. She is limited to her choice of clothes and she is limited as to the physical activities that she may undertake. These limitations have been with her since the time of the incident and will remain with her for the rest of her life.
I also take into account, in assessing what damages are to be attributed to her loss of enjoyment of life, the fact that had she not sustained these injuries, she may well have done better at school, such that she was able to obtain entry into an under-graduate university course. With the lack of such a qualification, the type of job that is open to her in the future may not be as satisfying and rewarding as employment open to her if she had an under-graduate qualification. I remind myself that this is a factor which must be allowed for both in relation to the assessment of economic loss and non-economic loss.
Taking all of these matters into account, I consider that the plaintiff has sustained a substantial injury and that general damages should reflect that position. I consider that an award of $120,000 for non-economic loss is appropriate. I would attribute 45 per cent of that sum to the past and 55 per cent to the future.
Loss of Earning Capacity
I turn now to the question of damages for loss of earning capacity. It was submitted by Mr Holland that the plaintiff, when in the last few years at school, at a time when examination results were crucial to the question of entrance to university courses, was preoccupied with her scarring to the detriment of her studies. She preferred to concentrate on socialising with and being accepted by her school companions rather than her studies. Mr Holland accepted that the plaintiff could not quantify a loss in relation to earning capacity up to the date of trial because, had she gained entrance to a university course she would still be studying. In addition, she has been in full-time employment since school and the combination of these two factors preclude an award for past loss of earning capacity. For those reasons I make no allowance for past loss of earning capacity.
As to the future, Mr Holland submitted that a significant award ought to be made under this heading. He argued that, had the plaintiff not been precluded by her injuries from studying harder in Years 11 and 12, she would have obtained a higher Matriculation mark and therefore have had a much better chance of obtaining entry into an under-graduate course in her chosen fields. I think there is some substance to this argument but I disagree that it gives rise to an award of substantial damages.
I accept that the plaintiff is of above-average intelligence and I accept that, causally, her injuries were responsible for her lack of attention to studies in the final years of secondary school. I therefore think that there is a direct relationship between the injuries sustained by her and the fact that she barely passed her Matriculation. I accept also that she wished to pursue a university course once she completed her schooling. These circumstances, at best, in my view, lead to a relatively short-term loss of earning capacity. If she wishes to pursue a career based on a university qualification, it is open to her to do so in the future by repeating her Matriculation studies in an endeavour to obtain a better mark. This would be best undertaken when she is more emotionally stable. I do not think that she has very far to go in that regard, given my impression of her during the course of the trial, when she displayed a remarkable maturity, all things considered, and given that this is a view similar to that held by Ms Tiggeman.
I think the likelihood is that within the next two or three years the plaintiff will be able to cope with the rigorous study regime that is now required of those who wish to matriculate well. If she chooses to do so in the near future, she will then be in a position whereby her ability to study and learn will not be materially impaired by her injury. In addition, if she gains tertiary qualifications (from a university or otherwise) her present reluctance to apply for employment in her chosen field should disappear.
In these circumstances, she will have sustained a pecuniary loss in the future determined by making an estimate of what she would have earned had her earning capacity not been affected and deducting from that sum what she has actually earned, for the relevant period. In addition, she must be compensated for those aspects of her injuries which caused longer term and permanent partial loss of earning capacity.
An examination of the question of what she would have earned had she not suffered a loss of earning capacity includes taking into account not only the plaintiff’s desire to undertake a university or tertiary course on completion of school, but also her desire to travel. I think that if events had proceeded in a normal way, the plaintiff may well have gained entry to her chosen university course, but she may have deferred embarking upon that course until she travelled overseas or she may well have taken a year off during the course of her studies to travel overseas.
I consider that it may be another two to three years before the plaintiff, if she so desires, is able to resume Matriculation studies as previously mentioned. During the course of one of those years she will travel overseas. I do not think that that year ought to be taken into account because from an earning point of view it would have proceeded in the same way irrespective of whether or not the plaintiff had suffered a loss of earning capacity.
The measure of this aspect of her loss is the extent to which she has been precluded from obtaining employment based on a university qualification. Had she commenced university studies immediately upon leaving school, three years should be allowed for the under-graduate course plus a further year for travelling. I must take into account that she may not have obtained employment immediately upon completion of her university course. As against that, it is probable that she would have obtained some form of employment while she was looking for permanent employment. In the events which have occurred, given that she left school in 2001, she will probably not be able to resume Matriculation studies until the beginning of 2007. This means that she would not be able to commence a university course until the beginning of 2008. That effectively means that she has been precluded from entering into employment of her choice for about seven years. If she were to embark upon Matriculation studies in three years time, it is likely that, during the two years during which she was not travelling, she would have employment of the type she presently has. Taking this into account reflects the fact that she has sustained a partial loss of earning capacity as opposed to a full loss of earning capacity. It also reflects the position that the diminution in earning capacity would largely disappear if the plaintiff successfully takes up an opportunity which I consider is available to her to better her Matriculation score and to apply for a chosen university course. If she were to undertake Matriculation again in circumstances where she was not affected by her injuries, and if she failed either to get a better Matriculation score or failed to gain university entrance, the cause for same would not be diminished working capacity resulting from injuries sustained by her.
Having outlined the various factors to be taken into account, it is impossible to be arithmetically precise in the approach to be taken to damages for future loss of earning capacity. No specific evidence has been called as to what her income would have been had she been able to obtain employment based on a tertiary qualification. However, I think judicial notice may be taken in a general way of the fact that such employment gives rise to a higher income than the type of employment available to someone without a tertiary qualification: Hayman v Forbes and Another (1975) 13 SASR 225. I think it appropriate to adopt the approach taken by the Full Court in that case. In all the circumstances, I consider that an allowance of $75,000 should be made covering both the deferral of chosen employment and the other more general limitations on her capacity to work.
Before leaving this aspect of the assessment I mention specifically that I do not accept the plaintiff’s submission that there is a measurable loss of earning capacity from a physical point of view apart from the physical limitations of not being able to work outdoors. Although the plaintiff may experience discomfort if she is required to undertake employment which precludes her from moving about or requires her to stand for long periods of time, I do not think that this aspect of the affects of the plaintiff’s injuries precludes her from carrying out the type of employment that is available to her and that she wishes to undertake. It is rather an aspect which sounds in general damages as mentioned earlier in these reasons.
The plaintiff sought Wilson v McLeay damages in respect of the ten-week period of hospitalisation following the incident. The claim is limited to lost wages on the part of the plaintiff’s mother and for travelling costs in respect of the trips undertaken by both the plaintiff’s parents. In my view, the plaintiff is entitled to an award under this heading because the attendances of both parents assisted the plaintiff in respect of her treatment.
No claim for loss of wages is made in respect of the attendances of the plaintiff’s father.
At the time, the plaintiff’s mother was working about 25 hours a week. In her evidence, she was unable to say what her hourly remuneration was and I therefore need to be conservative in making an estimate. I think that $15 per hour is appropriate. I bear in mind that she was unable to attend on one day because of sickness on her part, but this makes little difference to the overall calculation which must necessarily be undertaken on a broad brush basis.
The weekly loss amounted to $375 in respect of lost income. So far as compensating in respect of the cost of travelling back and forth from the hospital, it was suggested that 240 one-way trips were undertaken by a combination of both the parents. This is a reasonable approximation. Ideally, evidence of the cost per kilometre of running the cars used for these trips would assist in making the appropriate calculations. There is no such evidence so I think that I should be conservative. I would allow $5 for each trip. The amount to be allowed for loss of income over the ten-week period is $3,750 and for the costs of travelling, $1,200. Consequently, I allow $4,950 for damages under this heading.
The plaintiff claims Griffiths v Kerkemeyer damages. In my view the plaintiff is entitled to recover damages for the care and attention provided by her parents in the past. I find that the need for the provision of these services was created by the neglect or breach of duty of the defendant. It is clear from both the evidence of the plaintiff and her mother that it was necessary for the plaintiff’s parents to assist her in a quite detailed way during her recovery.
Although, in a given case, this aspect of the assessment may include an allowance for future gratuitous services, I do not think that the facts of this case give rise to such an allowance. The predominant caregiver in the past has been the plaintiff’s mother. The only evidence given in respect of the plaintiff’s father is that he would occasionally massage the plaintiff’s legs when she was tired. I infer that he also assisted the plaintiff’s mother from time to time to the point where a combination of the plaintiff looking after herself and the plaintiff’s mother giving assistance did away with the necessity for him to assist in the provision of gratuitous services. I am not able to make any precise finding as to when this came about but I think it probably would have occurred by the time that the plaintiff was nearing the end of primary school. The need for these services persisted, probably for in excess of ten years after the accident, by which time the plaintiff was able to look after herself without any measurable contribution by her mother. That is not to say that both parents ceased providing the plaintiff with the comfort and support that devoted parents provide to their children. It is obvious that this type of support has continued up to the present day and will continue to be provided by both of the plaintiff’s parents. However, that type of incident of parenthood is not compensable under this heading.
I mention specifically that the period covered by this heading of damages includes the care and assistance given by the plaintiff’s parents, in particular the plaintiff’s mother, during the ten-week period of hospitalisation which immediately followed the incident.
Mr Holland submitted that I should infer from the evidence of the plaintiff’s mother that, for the period commencing ten days after the plaintiff’s admission in hospital and ending upon her discharge from hospital on about 21 September, the plaintiff’s mother attended at the hospital between 8.00 am and 6.00 pm and the plaintiff’s father attended between 6.00 pm and 8.00 am on the following day. I think it is reasonable to draw that inference.
He also contended that the number of hours of gratuitous services rendered by the parents during this period amounted to approximately 900 to 1,000 hours. I do not think that such an inference is open to me. The evidence is very general in this regard and, bearing in mind that the plaintiff was hospitalised during this period, I consider that, conservatively, the appropriate estimate of the number of hours of gratuitous services performed by the plaintiff’s parents on average during the ten-week period from the date of commencement of hospitalisation to the date of discharge from hospital was about three hours per day or, in round figures, something in the vicinity of 200 hours.
I accept that the appropriate hourly rate was $8.50, which would lead to an award of $1,700. Such an award also avoids the potential for duplication of damages when considering an award which represents compensation (to the plaintiff) for income lost by either or both of the parents and an award which is based on compensation to the plaintiff in respect of the value of the gratuitous services rendered by those parents.
The next period covered by Mr Holland under this heading was the period during which the plaintiff was required to wear the pressure bandage which the plaintiff’s mother said was a period of about twelve to eighteen months. I accept that during this period the plaintiff required a great deal of care over and above the normal care which would be given by responsible parents to their child.
Mr Holland submitted that the period of care extended even to the time that the plaintiff was asleep and even to the time that the plaintiff was at kindergarten. I am unable to accept this submission. Although I agree that daily care was required of the parents over and above normal parental care and that such care was provided in particular by the plaintiff’s mother over the period of twelve to eighteen months whilst the plaintiff was required to wear the pressure bandage, I do not think that the calculation of the amount of damages included an allowance for all of the time that the plaintiff was asleep and for all of the time that she was at kindergarten.
I accept that, particularly as the plaintiff suffered from nightmares, the extra care and attention provided by her parents would have extended to part of the night hours.
I am not able to make any finding as to whether or not the plaintiff’s kindergarten teachers provided gratuitous services whilst the plaintiff was in their care at kindergarten and, consequently, as was submitted by Mr Costello, counsel for the defendant, I can make no allowance to cover that eventuality.
It seems to me that I must again take a broad brush approach to this aspect of the assessment. There are three factors which I consider to be important: first, the fact that the plaintiff was required to wear a pressure bandage which had to be removed from time to time, particularly prior to outpatients visits, of the frequency already referred to by me in these reasons; second, the need to remove the pressure bandage when the plaintiff was bathed by her mother; and, third, a general consideration of the many needs of the plaintiff attended to by both her parents resulting from the horrific injuries sustained by her. Given that the period of wearing the pressure bandage was somewhere between twelve and eighteen months, I accept Mr Holland’s submission that a period of about 60 weeks should be allowed. In addition, I consider that three hours per day on average is an appropriate allowance for the extent of the gratuitous services rendered on each day during this period and that the appropriate hourly rate to be applied is about $9. This leads to an award of approximately $11,000 in round figures.
Mr Holland next referred to the period commencing at a time when the plaintiff was no longer required to wear the pressure bandage and continuing until the date of trial. He suggested, with some diffidence, that it may be appropriate to try and average out the type of assistance rendered by the plaintiff’s parents to her over and above normal parental care over this period and apply an hourly rate to that sum. I do not think it appropriate to approach this third period in that manner. I think the correct approach is to make a broad appreciation of the condition of the plaintiff during this period, the attitude of her parents towards her and bear in mind the fluctuation of the hourly rates payable for such assistance, as was the subject of evidence. It is necessary for me also to bear in mind that by the time the plaintiff had reached her mid-teens she was largely self-sufficient in relation to the provision of the physical aspects of the care that was necessary.

This does not take account of the emotional support provided by the plaintiff’s parents and some small allowance must be made in this regard. Small, not because the plaintiff’s contribution in that regard was small, but rather because much of the emotional support provided by her parents would have been provided in any event in the ordinary course of their parenthood.
Bearing all of these factors in mind, I think that an allowance of $40,000 is appropriate.
The total of these three amounts is $52,700. I allow that sum in respect of the provision of gratuitous services. For the reasons already given I do not consider that an allowance should be made for the future.
The final head of claim made by the plaintiff relates to future medical expenses. I accept that it will be necessary for the plaintiff to continue to see Ms Tiggeman during this year and the next and that, in a more general sense, it will be necessary for her from time to time to resort to this type of treatment to help her with any setbacks that she may experience. The present cost of each such consultation is approximately $145. I think it appropriate to allow $7,500 to cover this eventuality.
I think it will be necessary for the plaintiff to undertake from time to time surgical revision of her scarring. The likelihood is that this will have to be undertaken on more than one occasion. The approximate cost of such surgery and attendant hospitalisation is about $2,000. I would allow the sum of $6,000.
Finally, I must deal with the question of whether or not the plaintiff undertakes reconstructive surgery in relation to her right breast. The present cost of such surgery and attendant hospitalisation is about $30,000. The plaintiff’s present view about undertaking such surgery is that she would hesitate to undertake such surgery given that it would leave her with a noticeable scar on her back which is presently unscarred. I have formed the view that her present hesitation is considerable for this reason. It is quite understandable that she would presently take such a view. However, I do not think it would be appropriate to determine this aspect of the damages merely by reference to the plaintiff’s present pronounced reluctance to undertake such surgery. As she gets older and, hopefully, has a family of her own, circumstances may be compelling so that whatever reluctance she then has is put to one side. I think there is a reasonable prospect that she will eventually undertake such surgery. In all the circumstances I think it appropriate to make an allowance of $15,000.
I mention specifically that, to the extent that the plaintiff may lose income in the future because of hospitalisation and recovery from operative treatment, I have made allowance for these matters in my assessment of future loss of earning capacity.
The total of these three amounts in respect of future medical expenses comes to $28,500. I allow that sum.
In summary my assessment is as follows:
Non economic loss
Past  $54,000.00
Future  $66,000.00
Loss of earning capacity
Past  Nil
         Future  $75,000.00
Wilson v McLeay damages  $ 4,950.00
Gratuitous services
Past  $52,700.00
Future  Nil
Future medical expenses  $28,500.00
As to the question of interest, counsel agreed that they would endeavour to agree the amount to be allowed for interest once I have published these reasons. If the parties are unable to agree this aspect of the matter, I shall hear further submissions from counsel in that regard before entering judgment.

[2004] SADC 18

4 February 2004