Redding v Manly Life Saving Club Inc

[2018] NSWDC 278

District Court

New South Wales

Medium Neutral Citation:

Redding v Manly Life Saving Club Inc & Anor [2018] NSWDC 278

Hearing dates:

18, 19, 20 September 2018

Date of orders:

04 October 2018

Decision date:

04 October 2018

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the second defendant for $692,806.30.
(2)   Order the second defendant to pay the plaintiff’s costs.
(3)   Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

Catchwords:

TORTS – negligence – informal indoor cricket game – struck in eye with ball resulting in detached retina – plaintiff not a participant in game - whether there was a failure to take reasonable precautions – s 5B Civil Liability Act 2002

 

TORTS – negligence – causation – materialisation of inherent risk – obvious risk – contributory negligence Civil Liability Act 2002 ss 5D, 5F, 5H, 5I, 5R

  DAMAGES – non-economic loss – out-of-pocket expenses – domestic assistance and care – economic loss and future loss of earning capacity – average weekly earnings (AWE) – plaintiff had capacity to earn more than AWE

Legislation Cited:

Civil Liability Act 2002
Motor Accidents Compensation Act 1999

Cases Cited:

Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Williams v Twynam Agricultural Group Pty Limited [2011] NSWSC 1098
Wyong Shire Council v Vairy [2004] NSWCA 247

Category:

Principal judgment

Parties:

Newbie Louise Redding (Plaintiff)
Manly Life Saving Club Incorporated (First Defendant)
Scott White (Second Defendant)

Representation:

Counsel:
S McCarthy (Plaintiff)
J Chapman (First Defendant)
D O’Dowd (Second Defendant)

  Solicitors:
Belinda R Wightley (Plaintiff)
Lander & Rogers (First Defendant)
McCabe Curwood (Second Defendant)

File Number(s):

2016/382018

Judgment

Introduction

1. Cricket is Australia’s national summer game. It is meant to be played in the open on a large field over several days. In the warmer months, informal variants of the game are played throughout the country. There is backyard cricket, beach cricket, French cricket and even office cricket. The plaintiff suffered a serious eye injury when she was near to, but not participating in, an informal game of indoor cricket played by young members of the Manly Life Saving Club.

2. By a Statement of Claim filed on 20 December 2016 the plaintiff sued the club as first defendant in negligence and sued the second defendant, who was the participant who hit the ball which struck the plaintiff, as the second defendant. He was sued in negligence, and also for the intentional torts of assault and battery. In submissions the claim in assault and battery was abandoned.

3. Shortly before trial the action between the plaintiff and the first defendant was settled. The hearing thus involved only the plaintiff suing the second defendant in negligence.

Evidence as to how the plaintiff suffered her injury

4. The plaintiff was born on 7 January 1998. On 12 January 2014, when the plaintiff was just 16 years of age, she was at the Manly Life Saving Club. The plaintiff was a young member of the club and on that day had been involved in running a barbeque to raise funds for the sprint team, of which she was a member.

5. Besides running the barbeque, the plaintiff was involved in cleaning up after it. For that purpose she carried trays and utensils, which needed to be washed, upstairs to the kitchen in the clubhouse. The first floor of the clubhouse contained a large function room. Off that room was the kitchen where the plaintiff took the items to be washed.

6. The plaintiff intended to make a few more trips downstairs to bring more material up to the kitchen before she left. The plaintiff had a pre-arranged plan to meet a young friend, then contact her parents who were going to come to the club and pick up the two girls and take them home.

7. The plaintiff’s evidence was that when she brought the material upstairs to the kitchen she passed through the upstairs function room. She saw four or five boys, who were members of the club, playing cricket inside the function room. After her first trip to the kitchen the plaintiff emerged and crossed the floor of the function room for a short distance. Her bag was on the floor and she crouched down to retrieve her phone so that she could text her parents to arrange a pickup. The plaintiff had observed the indoor cricket for about 20 seconds before that and saw that there were no forceful hits or bowling. She saw the ball travelling about 1-2 metres along the ground after it was struck by the batter. The plaintiff saw that the second defendant was batting, in that she saw that he had the bat in his hand and was facing up to the bowler.

8. The plaintiff said that the function room was not supposed to be used for that activity, and was really off limits. She said to the group of boys: “You guys should make sure you are careful here”. She said that the second defendant said: “We’ll see about that”.

9. The plaintiff saw the second defendant prepare to receive the next ball. She had her back to the bowler so she did not see the delivery of the ball. She crouched down to her bag, got her phone and looked at it. With her head down she heard the ball hit the bat and then she felt an impact in her left eye. She fell down and her vision went black. The plaintiff thought that she was about 5-6 metres away from the second defendant when he was batting.

10. Mr Timothy Curtis gave evidence that he was one of the boys playing indoor cricket on the day. He was the bowler of the ball which eventually struck the plaintiff. He and the plaintiff went to primary school together and also knew each other from the surf club.

11. Mr Curtis recalled that the ball being used was a bit harder than a normal tennis ball, like a cheap tennis ball. He was bowling and the second defendant was batting just before the plaintiff was struck by the ball. His memory was that the boys had been playing cricket for 10-15 minutes before the accident. He thought that only one person had a bat before the second defendant did.

12. Mr Curtis recalled the plaintiff coming up the stairs with a friend and the two girls being outside on the balcony past the glass windows of the function room. He recalled her at a later time being in the function room, while the game was going on. She was not standing up and she was not lying down. He said that she was “on the ground level”. The plaintiff was close to the glass wall of the function room about 5-7 metres away from the batsman.

13. Mr Curtis said that the boys were not hitting the ball too hard because they were aware of their surroundings and the glass wall. No-one was bowling proper overarm deliveries and no-one was playing hard shots. No-one was taking big swings of the bat. This was the manner of playing right up until the time the accident occurred.

14. Mr Curtis recalled that he delivered the ball with a bent arm and it was really an easy throw. It landed as a half volley and the second defendant hit the ball at a 45 degree angle. The ball travelled and hit the plaintiff in the eye. He said that the ball “came off the bat quite hard”.

15. Mr Curtis did not recall the plaintiff saying anything to the group of boys and did not recall the second defendant saying anything before he played the shot. He did recall the plaintiff being on her phone just as she was hit.

16. In cross-examination Mr Curtis said that there were no runs involved in the game as there were really no sides playing each other. It was just a case of the bowler trying to hit the wicket or get the batsman caught. He said that the ball he bowled was not a very fast delivery. He described the shot played by the second defendant as “a well-timed shot”.

17. Mr Curtis did not recall how long the plaintiff was in the function room before she was hit, but said “it wasn’t overly long”. He thought that he had bowled about an over of six balls to the second defendant before the ball hit the plaintiff.

18. Mr Dylan Bruce was another of the boys involved in the game. He was involved with the surf club and knew both the plaintiff and the second defendant. He thought that the game had been going on for about 20 minutes. He saw the plaintiff outside on the balcony, beyond the glass wall. He thought that she went into the kitchen and came back out with one of her friends. The time the plaintiff spent in the function room was only about 10 minutes. From memory he thought that the plaintiff was eating her food or looking at her phone, but he was certain that she was not participating in the game. He said that the plaintiff “wasn’t at all focussed on what we were doing”.

19. Mr Bruce remembered Mr Curtis bowling and the second defendant batting. There was a lot of good-natured banter among the participants in the game. He said that all of the boys were only hitting the ball carefully, because they were all aware that it was “a quite volatile area with the glass surrounding it”. He recalled the second defendant hitting a drive shot, which bounced on the ground and hit the plaintiff in her eye. He thought that from the sound the shot made that the ball had hit the bat quite hard, but said this was the noise that the bat was making during the entire game. He did not remember whether this particular shot was harder than others played.

20. Mr Bruce could not recall the plaintiff saying anything to the group and could not recall Mr White saying anything in particular, although there was banter going on between the players. Mr Bruce said that the plaintiff was either “sitting down or in a crouched position with either her phone or her food”. She was at a “low level”. Mr Bruce thought that the plaintiff had only been in that particular position and posture for “a couple of minutes – five minutes at max”.

21. Mr Bruce was cross-examined. He confirmed that the plaintiff was not participating in the game nor was she interacting with the players. He said that the plaintiff definitely was not lying down, but was “down in a low area, but she definitely wasn’t lying down”. He described the plaintiff as being in a “crouched position”. He was asked in cross-examination how long the plaintiff was there in the function room and he said “probably 5 minutes max”. He had no particular recollection of the sort of delivery that was bowled to the second defendant, before the ball was struck towards the plaintiff.

22. The second defendant gave evidence that he knew the plaintiff from the surf club but not that well. He had been good friends with the plaintiff’s brother. He thought that the game had been going on for about 10 minutes before the accident happened. He recalled the plaintiff being outside on the balcony and then “coming into the room, and lying down on her front”. He said that he was fielding when the plaintiff came into the function room. The plaintiff positioned herself about four or five metres away, on the balcony or glass wall side.

23. The second defendant described the batting which was going on as just trying not to get out. He said that he was playing with a dead bat just trying to put the bat in front of the ball. There was no advantage to be gained by hitting the ball hard. The ball that hit the plaintiff was played no differently than any other previous shots. He said that the ball bounced before it struck the plaintiff, who was lying down on her front facing towards the batsman. The second defendant said that the plaintiff had been in that position for maybe five or six minutes. He recalled her being on her phone for some of that time.

24. The second defendant did not recall the plaintiff saying anything to the group of boys and nor did he say anything in response.

25. In cross-examination the second defendant agreed that what was happening was that the bowler would throw the ball in his direction and he would just block it. He agreed that the bowler was not putting any great strength into his throws. He did not see the plaintiff bringing up anything from the barbeque downstairs. He agreed that for part of the 10 minute period that he was aware of the presence of the plaintiff, she was on the balcony. He confirmed that it was three and half years after the incident before he had been asked by anyone to recall the details of the day.

26. The second defendant said that he was sure that the plaintiff was in the room for five minutes. He said that he was fielding when the plaintiff first entered the function room and he later moved to batting. He did not see the plaintiff walk across the room or come up the stairs. The next thing he knew was that the plaintiff was lying on her stomach, and he had been batting for four or five deliveries with the plaintiff in his line of sight. He had no memory of how the plaintiff got to that position. The first memory he had of the plaintiff being in the function room was four or five deliveries before she was hit. He did not recall the plaintiff crouching and said that she remained lying on her stomach. The second defendant did recall the plaintiff using her phone and said that he thought she was texting. He said that there was nothing unusual about the ball that was bowled to him and he just put his bat in front of the ball. However, the ball did not go dead and drop onto the floor.

27. The second defendant agreed that he was not an experienced cricketer and so when he played cricket shots he could give no guarantee that he could control the direction of the shot. The following was said at Transcript 154/37-46:

“Q   You were not an experienced cricketer, were you?

A.    No.

Q.   And because of that, when you played cricket shots, you could give no guarantee that you could control the direction of the shot, could you?

A.    I could not control the direction of the shot, no.

Q.    So if you hit the ball hard, you would just have to wonder where it might go?

A.    If I hit the ball soft, I would also wonder where it would go.”

28. The second defendant acknowledged that if he hit the ball hard when someone was in the near vicinity there was a chance that it could hit that person and that if it hit them in the eye it could do some damage. The second defendant agreed that when he noticed that the plaintiff was on her phone and texting, he knew that she was not particularly focussed on what was happening in the game and was not paying attention to it. He knew that, unlike the active participants in the game such as the fielders, if a ball was struck towards the plaintiff she had little or no chance of protecting herself.

29. In response to a question I asked, the second defendant said that if the tennis ball had not struck the plaintiff on her the face, it would have ended up bouncing off the glass wall.

Findings of Fact

30. I accept the plaintiff as a witness of truth on all matters. Her manner of giving evidence was forthright and frank. While matters contrary to her evidence were necessarily put to her in cross-examination, the plaintiff was firm in her recollection of events.

31. I accept that Mr Curtis, Mr Bruce, and the second defendant, were doing their best to answer questions truthfully. All were candid about there being matters as to which they had no recollection, or could only make estimates, particularly in relation to the time that the plaintiff was in the function room before the accident occurred. There was no reason for any of them to focus upon how long the plaintiff had been in the room, so on this topic I prefer the evidence of the plaintiff.

32. In relation to the second defendant, I do not accept his evidence that the plaintiff was lying on her stomach about five metres away from the batsman, for some time before the accident happened. I have accepted the plaintiff overall, but in particular I accept her evidence that what she was doing was crouching down to get to her phone which was in her bag on the floor of the function room near the glass wall. Mr Curtis and Mr Bruce gave evidence which corroborated the plaintiff being in a crouch position, or at least low down, but not lying on her stomach. There is a further reason why I reject that evidence. Later in this judgment I deal with the way the plaintiff, as a school girl, organised her time to be involved every day, for long hours, in sporting activities as well as achieving good results in her school work. My impression of the plaintiff is that she would have been the last person to have been lolling around in the function room doing nothing.

33. I do not find it necessary to make a finding in relation to the evidence of the plaintiff in relation to her saying anything to the boys in the room and in relation to the second defendant saying anything in response. The plaintiff said that she spoke to the boys because she was aware the function room should not be used for games of indoor cricket and that they should be “careful”, in the sense that they should watch out that they did not get into trouble for being there in the first place. She was not telling them to be careful in the way they played the game. The response of the second defendant, as recollected by the plaintiff, even if made, could have been a response to what the plaintiff said or could have been part of the banter which was going on between the boys playing the game. In any event, even if the second defendant did say the words attributed to him by the plaintiff, that does not indicate that he deliberately struck the tennis ball towards the plaintiff. The abandonment of the claim in assault and battery is ample demonstration of that proposition. It simply does not matter, for my findings, whether or not the plaintiff spoke or whether the second defendant also spoke at the relevant time. The crucial issues are how was the game being played before the incident occurred, and how it came about that the second defendant struck a ball which hit the plaintiff in the eye.

34. I make the following findings of fact.

35. On 12 January 2014 the plaintiff was working on a fundraising barbeque at the Manly Life Saving Club of which she was a member.

36. Shortly after lunch time the plaintiff carried dirty trays and utensils upstairs to the kitchen as the barbeque was finished.

37. The kitchen at the Club was off a large function room.

38. Within the function room at the time were a group of young boys, also members of the Club, who were playing a very informal game of indoor cricket.

39. The game had been played for somewhere between 10 and 20 minutes before the plaintiff’s accident.

40. The game involved a bowler half bowling or half throwing a ball at moderate pace down the “pitch” towards the batsman and a makeshift wicket.

41. There were no sides playing the game and no runs were being scored or counted.

42. The aim of the game was for the batsman to defend the ball and not be out bowled or caught.

43. All of the shots played by the batsman before the crucial shot which struck the plaintiff, were dead bat or defensive shots which were simply patted to the ground and only went one or two metres away from the bat.

44. The plaintiff observed the manner in which the game was being played as she passed through the function room on the way to the kitchen and then back out.

45. The plaintiff had a pre-arrangement with her parents that she would text them and they would come to the Club and pick her up after the barbeque was finished.

46. For the purpose of sending a text the plaintiff walked to a point near the glass wall of the function room, about five to seven metres away from the bat where her bag was sitting on the floor. The plaintiff crouched down, retrieved her phone from her bag and was in the process of sending a text when the incident occurred.

47. A ball/throw was bowled by Mr Curtis at a pace which was not fast.

48. The ball was a half-volley and it was received by the second defendant who was batting at the time.

49. The second defendant was not an experienced cricketer.

30. The second defendant had no control over where he would hit any particular ball, whether it was a fast or slow delivery.

31. The second defendant hit the ball which travelled on the bounce towards the plaintiff who was then crouched and engaged in sending a text on her phone.

32. The plaintiff was in that position for only a very short time, sufficient for her to move to the bag, crouch down, get the phone and start texting. That time would have been less than a minute.

33. The ball hit the plaintiff flush in the left eye causing her eye injuries.

34. Had the ball not hit the plaintiff it would have gone on to hit the glass wall behind the plaintiff.

35. No other shot had been struck in that fashion or had hit the glass wall. Nor had any shot travelled as far as that which hit the plaintiff.

36. The second defendant knew that if he hit the ball towards someone in the near vicinity there was a chance that it could hit that person and that if it hit them in the eye it could do some damage.

37. The second defendant had noticed that the plaintiff was about five to seven metres away on her phone texting and knew that she was not particularly focussed on what was happening in the game and was not paying attention to it.

38. The second defendant knew that, unlike the active participants in the game such as the fielders, if a ball was struck towards the plaintiff she had little or no chance of protecting herself.

Negligence

59. The provisions of the Civil Liability Act 2002(NSW) (the Act) apply to determination of the claim in negligence.

60. Section 5B of the Act provides:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)    the risk was not insignificant, and

(c)    in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.”

61. While there were no concessions made in relation to any of the elements of s 5B of the Act, certain matters were clearly established by the evidence.

62. The risk of harm in the case was the risk that the ball struck by a batter would hit and injure the plaintiff.

63. This risk was foreseeable. Indeed, the second defendant conceded in cross-examination that he knew of and recognised this risk. Thus s 5B(1)(a) was satisfied.

64. The risk of harm was not insignificant. A blow struck to the unprotected eye of a person can cause serious harm, as it did in this case. When the person struck is only a matter of metres away from the batter, and is not a participant in the game so is a person not watching the batter, they are completely unprotected from a ball flying towards them. I find that the risk was not insignificant and that s 5B(1)(b) of the Act is satisfied.

65. In considering whether, under s 5B(1)(c) of the Act, a reasonable person in the position of the second defendant would have taken precautions against a risk of harm, one is directed to look at the factors in s 5B(2).

66. I find that there was a significant probability that the harm would occur if care were not taken – s 5B(2)(a). A non-participant who is close to the batter has a good chance of being struck by a ball hit towards them.

67. The harm which could be caused by a ball striking a person flush on the eye was likely to be serious harm – s 5B(2)(b).

68. The burden of taking precautions to avoid the risk of harm depends upon the precautions which are pleaded and established by evidence. I deal with those matters below, but I find that the burden of taking any of the precautions pleaded was minimal – s 5B(2)(c).

69. Finally, the social utility of the activity that creates the risk of harm was extremely low – s 5B(2)(c). This was a friendly informal game of indoor cricket upon which nothing hinged. There was no reason why reasonable precautions could not have been taken to avoid harm to the plaintiff.

70. As to the precautions which the plaintiff alleged should have been taken, these are pleaded in paragraph 27 of the Statement of Claim as follows:

“27.1   To play the game, and conduct the activity, outside the premises;

27.2    To temporarily pause the game, or activity, whilst the plaintiff and others made passage across the confined room;

27.3   To take care not to strike or to use the hard ball whilst the plaintiff and others made passage across the confined room;

27.4   To use a softer and more malleable ball to play the game or conduct that activity.”

71. From this list of suggested pleaded precautions, it can be seen that the burden of taking any of those precautions to avoid the risk of harm was extremely low. This is particularly so in relation to pausing the game, or taking care not to strike the ball towards the plaintiff, while she was crouched down attending to her bag and her phone. I will consider each of the pleaded precautions separately.

72. Firstly, the precaution of playing the game outside the premises was not really explored in the evidence. The function room was on the upper floor of Manly Life Saving Club. It was summer when the accident happened. It was school holidays. While there was no evidence, it is not hard to anticipate that there would have been a large number of people outside the club attending the beach, which would have included young children and other vulnerable bystanders. I find that taking the game outside was not a realistic notion. While playing the game somewhere else would have avoided this particular accident, it could have led to other, and even greater, dangers. I find that taking the game outside was not a precaution which a reasonable person would have taken.

73. In relation to the fourth pleaded particular, there was no evidence that using a softer or more malleable ball would have made the game any safer. There was no evidence as to the degree of force necessary to injure an eye or cause a detached retina. Even a softer or lighter ball could well have caused a significant injury to the eye. I find that continuing to play the game while the plaintiff was present, but using a softer or more malleable ball, was not a precaution which a reasonable person would have taken against the risk of harm.

74. I will consider the second and third pleaded precautions together. Temporarily pausing the game while the plaintiff was close by, is in effect the same as not striking the ball while the plaintiff was nearby. The power to pause the game rested primarily with the batter. All the second defendant had to do was to hold his hand up and tell the bowler not to bowl while the plaintiff crouched down nearby attending to her phone. The pause in the game would soon be made known to the plaintiff, who could have completed using her phone and moved away from the danger zone. Even if the bowler delivered the ball the batter could have taken the option of not playing a shot.

75. The burden of taking the precaution of temporarily pausing the game so that a shot was not played while the plaintiff was close by and in harm’s way, was minimal. The game did not have to be abandoned, it could be temporarily stopped and that would have protected the plaintiff from the harm she suffered. Similarly, not playing a shot at all, in a game with no winners or losers, imposed no real burden.

76. I find that a reasonable person in the position of the second defendant would have taken the precaution of temporarily pausing the game while the plaintiff was close to the action, which would have resulted in no shot of any sort being played by the second defendant, but in particular the shot which injured the plaintiff. I also find that it would have been reasonable to not play a shot at all, even if the bowler delivered the ball.

77. Even in a formal game of cricket, no-one else is allowed on the ground except the players and the umpires, and they are all watching the ball come from the hand of the bowler towards the batsman, and then watching the ball after it is hit by the batsman. No doubt one reason for that is that only people involved in the game should have an effect upon the result. However, if any person were to wander onto the field of play during a cricket match, play would be halted also because of the danger to that person.

78. I make the preliminary finding that the second defendant was negligent in failing to take precautions 27.2 and 27.3 pleaded in the Statement of Claim. That is not the end of the matter, as the second defendant raised other matters under the Act.

Causation

79. The second defendant pleaded in his Defence, that any injuries suffered by the plaintiff were not causally connected to the omissions of the second defendant. Reference was made to s 5D of the Act.

80. Section 5D(1) of the Act provides as follows:

“A determination that negligence caused particular harm comprises the following elements:

(a)   that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and

(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”

81. I find that the failure to pause the game, and the failure to take care not to strike the ball towards or near the plaintiff, were necessary conditions of the occurrence of the harm. The harm to the plaintiff occurred when the ball hit her in the eye, and the only cause of that was that the second defendant hit the ball when he should not have, given that the plaintiff was in harm’s way.

82. For the second defendant it was submitted that the plaintiff could not say that the real cause of the accident was the action of the second defendant as the batsman, or the action of the bowler “having regard to how fast the ball had been delivered to the second defendant”. That submission is rejected, because both the bowler (Mr Curtis) and the batsman (the second defendant) said that there was nothing fast or unusual about the ball delivered on the crucial occasion. This is not a case where the batsman gave evidence that he was taken by surprise by the speed or direction of the delivery and had to somehow fend it off in an uncontrolled fashion.

83. For the second defendant it was submitted that “what did occur is that for reasons which are unknown the ball came off the bat at a speed which in fact resulted in her injury”. The speed with which the ball came off the bat had nothing to do with the speed of the ball which was delivered. It was entirely due to the force with which the second defendant hit the ball, whether that was intended or not.

84. I find that the negligence of the second defendant was a necessary condition of the occurrence of the harm.

85. Further, I find that it is appropriate for the scope of the second defendant’s liability to extend to the harm so caused. The second defendant was the master of the situation. It was his failure to take reasonable precautions which caused the plaintiff’s injury.

Inherent Risk

86. The second defendant pleaded that the risk of injury to the plaintiff from being struck by a ball while in the vicinity of this cricket game was an “inherent risk” within the definition in s 5I of the Act.

87. Section 5I of the Act provides as follows:

“(1)   A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2)    An ‘inherent risk’ is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3)    This section does not operate to exclude liability in connection with a duty to warn of a risk.”

88. In Wyong Shire Council v Vairy [2004] NSWCA 247 Justice Tobias said at [164]:

“An inherent danger is a danger (or risk) attaching to a condition or activity that cannot be removed by the exercise of due care… that is, by exposing oneself to a condition or activity involving an inherent danger one has thereby become subject to the possibility of the danger crystallising.”

89. His Honour made reference to Prast v Town of Cottesloe (2000) 22 WAR 474, where the court said that the risk of being dumped by a wave while body surfing was not only obvious, but was inherent. Even the exercise of reasonable care on the part of the surfer would not remove the danger. Another example given by Justice Tobias was the medical case of Rogers v Whitaker (1992) 175 CLR 479. That case involved eye surgery, which carried the inherent danger of the patient’s other eye become blind due to sympathetic ophthalmia. That danger was not one which could be completely eliminated even by the best surgeon in the world. It was an inherent danger of the operation. Thus there was a need for the surgeon to warn the patient of that inherent risk.

90. The way in which the second defendant put the case on inherent risk involves the proposition that if a person is standing close to a batsman in an informal game of indoor cricket, paying no attention to the batsman and not being part of the contest, it is an inherent risk that that person will be hit, and that that risk cannot be avoided by the exercise of reasonable care and skill. I have already found as a fact that the manner of playing the game right up until the incident was for each ball to be blocked and travel only one to two metres away from the bat.

91. If a person is standing in a position of danger close to a batsman in cricket, in a game of the type being played by the boys on this day, it is not inherent or inevitable that the person will be hit and injured. I have already found that a reasonable person in the position of the second defendant would have taken the precaution of stopping the game and the precaution of not striking the ball while the plaintiff was in her position attending to her phone and crouching down close to the batsman. Thus the exercise of reasonable care and skill would have avoided the risk of the plaintiff being injured. That risk was not an inherent risk as it could have been avoided by the exercise of reasonable care and skill.

92. I find that the risk of the plaintiff being struck and injured by a ball hit by the second defendant was not necessarily an inherent risk of the activity. I reject the second defendant’s submission on inherent risk.

Obvious Risk

93. The second defendant pleaded in his Defence that the risk of being struck by a ball was an “obvious risk” as that expression is defined by s 5F of the Act and therefore no relevant duty existed to warn of that risk pursuant to s 5H of the Act.

94. Firstly, it must be noted that this is not a case which involved an allegation of failure to warn. Thus s 5H has no role to play.

95. Further, I find that the risk to which the plaintiff was exposed was not an “obvious risk” within the meaning of the Act. Section 5F(1) of the Act says:

“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.”

96. The plaintiff was paying no attention to the game that was going on and she was not a participant in it. In any event, the definition of “obvious risk” incorporates the notion that a reasonable person in the position of the plaintiff would have been aware of a particular risk of harm. The evidence of the second defendant and of the two other boys playing the game, was that it was a very low key affair, where there were no runs to be scored, and the bowler was simply bowling a ball to get the batsman out, either bowled or caught. All of the batsmen, including the second defendant, simply patted the ball one to two metres away or played it with a dead bat. Further, all of the boys involved were conscious that they were playing in a confined space, and that one of the walls, facing onto the beach, was made of glass. Anyone observing this particular game of indoor cricket for 5 or 10 minutes, would have seen that every ball was simply blocked or patted away for a metre or two, and thus would not have perceived that there was a risk. It would seem that the first shot which was played with anything other than a dead bat was the one which hit the plaintiff in the eye. A reasonable person who watched this game of cricket up to that point would not have thought that there was an obvious risk of harm from the way the boys were playing up until the very shot which caused the injury.

97. In any event, as already recited, this is not a duty to warn case and thus s 5H of the Act, while pleaded by the second defendant, has no relevance to the proceedings. I find that the “obvious risk” provisions of the Act do not operate to defeat the plaintiff’s claim.

Contributory Negligence

98. The second defendant in his Defence pleaded that any damage suffered by the plaintiff was caused or contributed to by the plaintiff’s own negligence. The pleaded particulars were:

“(a)   Sitting in the vicinity of the game when she knew or ought to have

known there was a risk she could be struck by the ball;

(b)   Failing to keep an adequate distance from the game;

(c)   Failing to protect herself from the ball;

(d)   Failure to take any or any reasonable care for her own safety;

(e)   Failure to keep a proper lookout.”

99. Section 5R of the Act deals with contributory negligence as follows:

“(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 that time.”

100. All that the plaintiff would have known, or ought to have known, about this game of indoor cricket was that each batter was simply defending their wicket and playing the ball onto the ground, and not hitting strokes in any forceful fashion. A reasonable person in the position of the plaintiff, being aware of those matters, would not have taken any particular precautions for their own safety, as there was no chance on that scenario of the ball coming as far as the plaintiff was standing away from the batsman.

101. I find that there was no contributory negligence on the part of the plaintiff. In the position she was in, when attending to her phone, there was nothing to indicate that she knew or ought to have known that there was a risk she would be struck by the ball. Nor was there any need for her to keep a lookout, protect herself from the ball or keep a further distance away from the game, when the ball as hit on previous occasions would not have offered a threat to her, or indeed to any of the fielders standing close by.

102. I find that there was no contributory negligence on the part of the plaintiff.

Conclusion on Liability

103. I find that the second defendant was negligent and that no reason exists under the Act to defeat the plaintiff’s claim. There will be judgment for the plaintiff.

Evidence on Damages

104. The plaintiff was born on 7 January 1998 and was 20 years old at the date of the trial. She was born in the United Kingdom and came to Australia in 2005 as a child. In the United Kingdom, when the plaintiff was only five years of age, she was identified as a potential elite gymnast. Even at that young age, she used to train four afternoons per week.

105. When the family came to Australia the plaintiff continued gymnastics training. She competed at Regional Championships, and having success there, she moved on to State Championships and then to the National Championships. Five or six gymnasts from each State were selected to go to the National Championships where they competed against people who were at the same level. The plaintiff competed in the New South Wales State Team for a number of years prior to her accident. She had aspirations to go to the 2016 Olympics as a gymnast.

104. When the plaintiff’s accident occurred on 12 January 2014 the plaintiff was on school holidays, in between Year 10 and Year 11. Her school routine prior to the accident was to get up at 5.45am and then train between 6.10am and 8.30am at the gym. She went to school and then went back to the gym to train between 4.00pm and 7.45pm. She did this on Monday, Tuesday, Thursday and Friday. On Saturday mornings she did gymnastics training between 7.00am and 11.30am. The plaintiff described the training as very physical and mentally demanding but said that she “loved it”. There was always something new to learn. Until she was 14 years of age her parents drove her to and from training, but after turning 14 she got the bus there. The family used to travel together to competitions to watch the plaintiff.

105. Living near the beach, the plaintiff also became involved with the lifesaving movement. She was a young member, known as a “nipper” up to age 15. She then did her Bronze Medallion swim and started to compete in events representing the Manly Club. Her speciality was the beach sprint and the beach flags events. She also participated in water events. On three occasions she was selected to represent the Sydney Northern Beaches team. She won a medal at the State Championships. She did one year in the open event competing as a 15 year old. She won a Bronze medal in the beach flags event.

106. The plaintiff participated in her life saving training and events on Wednesday afternoon and on Sundays. She said that she loved it and that it was more social and less pressure than gymnastics. She made friends through the lifesaving movement.

107. The plaintiff also participated in athletics at school and made the State team. She competed at the school National Championships reaching the final of the 100 metre sprint and receiving a medal in the 4 x 100 metres relay. By the start of 2014 the plaintiff had less time for athletics and had reduced her participation to competing in school carnivals.

108. At age 16 the plaintiff had aspirations to be a helicopter pilot. She wanted to join the Police Force or the Special Forces as a pilot. She already knew that she did not want to do a desk job and that she wanted to do something which involved outdoor activity.

109. In spite of her sporting commitments, the plaintiff was also diligent in her school work. She used to do her study at night, on the bus or in the car. She also managed to fit in some part-time paid retail work. Eventually when the plaintiff completed her Higher School Certificate in 2015 she obtained an ATAR (Australian Tertiary Admission Rank) of 97.25 out of a theoretical mark of 100.

110. The circumstances of the incident in which the plaintiff suffered her injury have been dealt with above. When the plaintiff was hit by the ball in her left eye she felt significant pain in the eye. It felt like an enormous pressure, a deep ache and a sharp pain. She was shocked and fell to the ground holding her face. Her vision was black and she couldn’t tell if that was because her eye was shut. Witnesses told her that her eye was open, and she realised the significance of her injury because she could not see out of her left eye.

111. Two of the boys involved in the indoor cricket game helped the plaintiff out of the clubroom and down the stairs. They went to the beach to get first aid at the life savers tent. They gave her an ice pack and said that she had a bit of bruising. Her parents came and took her to Manly Hospital where she was examined and given pain killers. The plaintiff was transferred to Royal North Shore Hospital by her parents where she was given more pain killers and eye tests. She was told that there was no-one with enough experience to treat her at Royal North Shore Hospital. On hearing this she was very scared. She had been told at that hospital that the retina had been detached. She stayed overnight in Royal North Shore Hospital and was then transferred to Macquarie University Hospital where she came under the care of her specialist Associate Professor Fung.

112. On 15 January 2018 Associate Professor Fung performed surgery to re-attach the retina. This was under a general anaesthetic. When the plaintiff awoke she felt completely drained, confused, scared and upset. She had a patch over her eye. She was aware that there was bleeding inside the eye and bruising around the eye and on her upper cheekbone. She had that eye patch on for three days. She took pain killers all that time. She could not move as this might have increased the bleeding. She could not lie down for the same reason.

113. When the patch was eventually taken off she could not open her left eye. She had conjunctivitis around the eyelid. She was fearful that she could still not see out of that eye. It took time for the swelling and pain to go down. It was three weeks before the plaintiff could see. She could not open the eye which was painful all of that time.

114. When the plaintiff finally started to see out of the eye she realised that she could not pick up colours. She had no vision out of that eye for depth or detail. She described it as like looking through a “fogged windscreen”. She gave an example of being able to see that there was a desk in front of her, but she could not see that there was a bag on the desk. The plaintiff continued to see Associate Professor Fung and took eye drops regularly for the next two months.

115. The plaintiff started the school year in 2014 two weeks late. She wore a patch over her left eye. The eye was swollen for about two months and was very red. A photo was tendered showing her eyes about four weeks after the surgery.

116. The plaintiff said that she was scared that the eye would be hit accidentally and she was embarrassed by wearing the patch and by the appearance of the eye. She found that she was very sensitive to any light and particularly to glare. If she was confronted with light the left eye would shut because of pain caused by the light. This could be caused even by the light coming through a curtain. She said that this still happens commonly. If she is sitting in the sun or driving into the sun the eye will close of its own accord. Even now in her bedroom she only has a bedside light and not a light on the ceiling.

117. During 2014 the plaintiff continued to see Associate Professor Fung but there was no real improvement. Over that time she suffered an ache from the buckle which had been placed operatively at the back of her eyeball. She could not focus at school or upon training as the ache would not go away. Her surgeon advised her not to go back to gymnastics, but she eventually got back into training. She was told that she should not place herself in an upside down position and should not be doing gymnastics where she would land with some force. Her skills dropped because she lost depth perception. She would run into objects or fall over. She could not go to the State Championships. Based on her previous results she obtained entry to the National Championships in July 2014 but she did not obtain a worthwhile result. Pre-accident she had been in the top 8 nationally and in the top 3 in certain disciplines. She tried to continue with her gymnastics but she felt like a failure. After training her eye ached. The plaintiff found that she was not enjoying her sport anymore. She carried on for a few months after the July 2014 nationals but gave it away as she felt that she could no longer be passionate about gymnastics. The plaintiff said that she felt “lost” and felt “ashamed” as though her injury was something that she should have been able to get through.

118. Associate Professor Fung had advised the plaintiff not to do surf lifesaving any more. In particular, he was worried about her diving into the sand to grab the flag in the flag sprint. She chose not to do surf lifesaving again. She did one more relay in athletics and then stopped that sport.

119. In studying for her Higher School Certificate the plaintiff found that her eye ached from reading or looking at screens. She studied hard and obtained the excellent ATAR mark of 97.25.

120. The plaintiff said that all of her past aspirations had been destroyed by the accident and she did not know what she wanted to do. Obtaining a high ATAR gave her options. She chose a double degree of sport and exercise at UTS. In spite of her inability to perform at an elite level in gymnastics, she thought that she might be able to do managing, coaching or committee work in gymnastics. She found the course at UTS unsatisfying. She described it as very basic and leading to no concrete qualification. She did obtain marks of credits and distinctions in the course. She felt that she was not pushing herself enough and she transferred to another degree being psychology at the University of New South Wales. Even there she did not do as well as she thought she should. She failed a few subjects.

121. The plaintiff then transferred to study by distance education at Charles Darwin University in Darwin. It was the same psychology course and she obtained credits for those subjects which were completed at the University of New South Wales. She hopes to complete her psychology degree in mid-2020.

122. This year the plaintiff moved to Milingimbi, which is a remote island off Arnhem Land in the Northern Territory. She is employed there to co-ordinate a community development program. Her partner also lives and works on the island. The plaintiff’s job is to motivate people and get them active and working. She deals with the mental and physical problems of her indigenous clients. The plaintiff said that for the first time she feels motivated again. She only earns $26 per hour and works 25 hours per week.

123. Prior to the accident the plaintiff did not wear glasses. Since the accident she has found it hard to read and has double vision. She has difficulty reading books, papers and even road signs. When she wears glasses she gets eye strain and aches and dryness. She has floaters in front of the left eye which are particularly noticeable working with screens and reading papers. She described them as like little black dots or ants in front of her eye. They move with the movement of her eye. The plaintiff has restricted peripheral vision in the left eye and demonstrated that it is limited to about 15 degrees from straight ahead.

124. When the plaintiff is driving she worries about other drivers or pedestrians being on her left. She also worries about crossing a road. The plaintiff said that she could not catch objects thrown to her as she lacks depth perception. She gave the example of stopping at a red light when she was driving. She tends to leave a lot of room between the front of her car and the light, because she cannot judge the distance.

125. In 2016 there was an event where the plaintiff described a dark curtain seeming to come across her eye so that she could not see out of it. This was frightening.

126. The plaintiff has an eye test every six months. Since the accident she has had only one change in her prescription. She has noticed that the left eyelid is saggy and that the left pupil is a different size to the right pupil. The left eye gets red on a regular basis. The plaintiff has noticed that when a photo is taken of her, it looks like she has a “lazy eye”.

127. The plaintiff gets frequent headaches behind the eyes and these project upwards inside her head. She gets a headache every day or two. Headaches are induced by bright lights, screens or reading text. She takes pain killers every day or two. She described the headaches as “more intense than a dehydration headache”.

128. The plaintiff cannot participate in any of the sporting activities on Milingimbi. AFL is popular there, but she cannot participate because of the risk of physical contact. She has given up gymnastics and has realised that she could not participate in scuba diving or even diving into a pool.

129. The plaintiff was very upset during her evidence-in-chief. She said that her injuries upset her every day as she finds her loss of vision frustrating. She is constantly anxious that something might happen to the other eye and she said that the injury has taken away a lot of the things she was striving for. She said she didn’t have the same enthusiasm for life and was not motivated in her studies, or to engage in social activities.

130. In giving her evidence on damages the plaintiff impressed me as a witness of truth and I accept all of her evidence on damages. She did become slightly combative in dealing with cross-examination, but my impression was that she felt offended by some of the suggestions put to her (quite properly) by counsel for the defendant in cross-examination. I did not think that she was seeking to avoid answering questions by her manner during cross-examination. She was quite teary when giving her evidence about the effects of the eye injury.

131. It is clear that the plaintiff was a very high achiever, both academically and in elite sports, prior to the accident. It is also clear that a lot was taken away from her by the accident, in the sense that not only has she suffered a serious injury to and interference with her vision, but many other things which brought her great satisfaction in life can no longer be pursued. Her ability to participate in sport has been all but destroyed, and it is understandable and I accept that her enthusiasm for study has waned. I accept the plaintiff when she gave evidence that she feels a great sense of loss in her life as a result of the eye injury suffered. Further, the restriction of the plaintiff in her future life to sedentary occupations leaves her doing work involving a lot of reading, which in turn causes pains and problems in her left eye. The condition is one which will not improve at all during her lifetime.

132. The plaintiff’s mother Ms Sarah Redding gave evidence. She was upset during all of her evidence. She was in tears and had trouble speaking. She described the plaintiff before the accident as “happy, determined and ambitious”. She had observed a complete change in the plaintiff’s personality. To her observation the plaintiff was now sad a lot of the time, and was withdrawn. The plaintiff’s mother thought that the plaintiff had got worse as time went on.

133. The plaintiff’s mother had observed that the plaintiff’s self-esteem was lower, her hygiene had changed and she could not even put on make-up properly. I accept the plaintiff’s mother as a witness of truth. She too has been very affected by the injury suffered to her daughter, but her evidence about her daughter conveyed the radical turnaround and deterioration in the plaintiff’s life, hopes and aspirations.

Expert medical evidence

136. The plaintiff obtained a medico-legal report from Dr Michael Delaney, ophthalmic surgeon, who saw the plaintiff on 5 April 2016. Dr Delaney recorded the various problems, already dealt with above in consideration of the plaintiff’s evidence. As to technical matters, Dr Delaney found that uncorrected vision in the right eye was 6/6. This is normal vision. A visual acuity of 6/6 means that the person can see detail from six metres away the same as a person with “normal eyesight” can see from six metres. In the left eye the vision was 6/36. This means that the plaintiff can only see detail from six metres away that a normal person would see from 36 metres away. Even with the best spectacle correction that vision could only be improved to 6/24. Dr Delaney noted that vision was distorted with or without glasses. The left pupil was slightly larger and was significantly slower to react to light. Examination showed evidence of an inferior retinal detachment with a scleral buckling operation. There was pigment clumping at the posterior pole at the macula and around the optic disc, in keeping with rupture to the eye. Testing showed generalised constriction in the visual field. This was due to the effects of trauma and the retinal detachment operation.

137. Dr Delaney confirmed that there had been severe blunt trauma to the left eye which resulted in bleeding into the anterior and posterior segments of the eye and a traumatic retinal detachment for which the plaintiff underwent surgery. While the retina has been re-attached the procedure resulted in an induced myopic refractive error which necessitated glasses to improve vision. However those glasses only improved vision by one line on the chart. Dr Delaney confirmed the symptoms of glare intolerance and starbursts which are the result of the trauma suffered in the eye.

138. Dr Delaney thought that there was no possible improvement in the foreseeable future. The plaintiff will require an examination every six months for the next five years to exclude the onset of glaucoma for which she is at significantly more risk than normal. After that, annual visits will be needed. The cost for each visit is $125. If there is a suspicion of glaucoma, the plaintiff will require visual field testing once a year at a cost of $250 and an examination each year at a cost of $125.

139. The plaintiff requires a change in glasses every two years at an average cost of $300 to $400. Should she develop glaucoma, eye drops would cost from between $30 to $60 per month.

140. Dr Delaney confirmed that the plaintiff would be ineligible to enter the Police Force or the army to carry out elite duties or Special Forces activities. She is unable to participate in gymnastics and prolonged close work may cause symptoms of headache and blurring requiring more frequent breaks than normal. This also applies to working when reading on screens. The plaintiff will have to take additional care because of the risk of further injury to the left eye.

141. Also tendered was a report by Dr Michael Steiner, ophthalmologist, who saw the plaintiff on 19 March 2018. Dr Steiner found uncorrected vision to be 6/5 on the right and 6/60 on the left. By glasses this could be corrected to 6/24, but he confirmed that this was only one additional size in print on the chart. The examination findings of Dr Steiner were in accordance with those of Dr Delaney. There was marked generalised constriction of the field of view on the left.

142. Dr Steiner was asked to assess permanent vision loss. The visual acuity equated to an 88% loss of vision of the left eye and the field loss equated to 71%. Using a combined values chart this equated to 97% loss of vision in the left eye. In objective terms this amounted to a 24% impairment of the visual system.

143. As to capacity for employment Dr Steiner said:

“It is fairly obvious that somebody with poor vision in one eye who gets tired when doing close work or using the computer would have some problem with employment compared to somebody who does not have this problem. However on the whole her capacity for employment should be fairly good.”

144. The plaintiff obtained an expert report from Ms Neryla Jolly, an orthoptist, and vision and driving specialist. She tested the plaintiff’s eyes and found the vision in the left eye to be 6/36. Objective testing also showed a decreased ability to see detail in reduced light levels such as driving at night. The plaintiff was observed to be less accurate in locating objects on the left side, which indicates lack of visual input from stimuli on the left side. Testing also confirmed loss of depth judgment and reduced stereopsis (the perception of depth produced by the reception in the brain of visual stimuli from both eyes in combination). The black spots found on objective testing showed a significant area of loss in the lower left field.

145. Ms Jolly found that the plaintiff met the licence standard to be able to drive, although she had decreased vision for night driving.

146. Ms Jolly pointed out that if later in life the right eye is affected in any way, such as by cataracts, macular degeneration or an injury, there can be no support from the left eye.

Damages: Non-Economic Loss

147. Damages for non-economic loss are governed by s 16 of the Act. Those damages have to be assessed as a percentage of “a most extreme case”, which is awarded 100% of the maximum indexed amount.

147. The defendant submitted that the damages should be assessed at 30% of a most extreme case. I reject this submission. The plaintiff has already suffered four and a half years with her disability, and at her present age of 20 years she has a life expectancy on the Medium Life Expectancy tables of 68 years. Even as a matter of first impression, 30% is far too low.

148. The plaintiff submitted that non-economic loss should be assessed at 70% of a most extreme case. Again as a matter of first impression, that is far too high. The plaintiff is an admirable person who has got on with her life, even with her permanent visual disabilities. It appears that she will achieve any target she sets in her studies which will equip her to pursue a professional career in whatever field she chooses.

149. An alternative submission put by the plaintiff was that if a person became blind in both eyes, that would be “a most extreme case” which would attract an award of 100%. It was then submitted that the plaintiff has effectively lost all sight in her left eye (the evidence is 97% loss) and that the starting point was 50% of a most extreme case. I also reject that submission. The plaintiff has binocular vision, and the objective assessment of Dr Steiner was that she has a 24% impairment of her visual system. This percentage does not translate to a percentage of a most extreme case, but it is a matter I take into account.

150. I also take into account, as previously recited, that the plaintiff has suffered her disabilities for the last four and a half years and has a long life ahead of her during which her vision will not improve. I must reflect in my award the fact that if there is any problem with her right eye in the future, the left eye will be no support, and if she suffers visual problems in the right eye she will be severely disabled because of the almost total disability in the left eye.

151. There is a risk that in the future her problem might worsen if she develops glaucoma, but fortunately that condition has not yet emerged.

152. Of course, the plaintiff’s pain, suffering and disability is not limited to the simple fact that she has lost much of her vision. The vision she has causes her pains and headaches. Those problems are not going to go away. Further, I have to compensate the plaintiff for the fact that she has been unable to pursue her dream of becoming a high-level gymnast, and pursuing a career in an outdoor sporting field rather than an office-based activity. The plaintiff is a realistic person and I am sure that she will achieve worthwhile results in her psychology course. However, this was not the field she would have chosen if uninjured. That has been a great disappointment to the plaintiff and that disappointment is ongoing.

153. Taking all of those matters into account I assess the plaintiff at 55% of a most extreme case. The maximum amount which can be awarded under s 16, for a most extreme case, is indexed each year on 1 October. The current indexed amount is $635,000 and 55% of this figure when rounded up in accordance with s 17 of the Act is $349,500.

154. I award $349,500 for non-economic loss.

Damages: Past Out-of-Pocket Expenses

156. Past out-of-pocket expenses were agreed at $4,974.30. This will be the award for that head of damage.

Damages: Future Out-of-Pocket Expenses

157. I accept the evidence of Dr Delaney in relation to likely future out-of-pocket expenses.

158. The plaintiff will need an eye test every year at a cost of $125 ($2.40 per week) and glasses every two years at an annual cost of $200 ($3.85 per week). The total of these is $6.25 per week. The appropriate multiplier for 68 years is 1030.7, on the 5% tables. There will be no discount for vicissitudes, as vicissitudes are taken into account on the life tables.

159. For future annual testing and the biennial replacement of glasses, the figure is: $6.25 x 1030.7 = $6,441.

160. If the plaintiff develops glaucoma she will need a visual field test each year at a cost of $250, an OCT examination at a cost of $125 and eye drops at an annual cost of $540. The total of these figures is $915 or $17.60 per week. The theoretical figure for out-of-pocket expenses if the plaintiff develops glaucoma is: $17.60 x 1030.7 = $18,037.25.

161. I have no evidence as to the possibility that the plaintiff might develop glaucoma, and indeed an ophthalmologist cannot predict that accurately. In those circumstances I will award $10,000 for future out-of-pocket expenses, which will be incurred if the plaintiff does develop glaucoma.

162. The plaintiff gave unchallenged evidence about taking a small amount of over-the-counter analgesic medication for her headaches, and for this I award $2,000.

163. Dr Delaney provided figures for contact lenses, if the plaintiff could tolerate them. This would be in addition to the replacement of glasses every two years. Contact lenses, if appropriate, would cost between $30 and $40 per month and the solution for the lenses would cost between $10 and $20 per month. I will take the midpoint of these figures which adds up to $50 per month. A theoretical calculation of the future expense of contact lenses is: $50 x 1030.7 = $51,535.

164. The plaintiff so far has not tried contact lenses. I have the impression from the report of Dr Delaney that he is not overly optimistic that they would be suitable for the plaintiff. Nevertheless, she may be able to wear contact lenses in the future, so for this potential expense I award $25,000.

165. The total award for future out-of-pocket expenses is $43,441 made up as follows:

Annual testing and glasses every two years	$6,441
Allowance for development of glaucoma	$10,000
Analgesia -	$2,000
Allowance for contact lenses	$25,000
TOTAL	$43,441

Damages: Domestic Assistance and Care

166. There is no claim for the past.

167. The plaintiff sought an allowance of $50,000 for the future. This was on the basis that with a limited depth of field and a restriction in peripheral vision, she might fall and thus need care. The plaintiff has not fallen to this point. She gave evidence of how careful she is in certain regards because of her visual problems. Even if the plaintiff did fall in future, there is no evidence from which one could predict whether such a fall would be likely to be so severe as to lead to the need for care.

168. I decline to award any figure for future domestic assistance or care.

Damages: Past Economic Loss

169. For the plaintiff it was submitted that there should be an allowance of $1,000 for the lost opportunity to perform shift work in casual retail jobs. There was no evidence of this and thus there will be no award for past economic loss.

Damages: Future Loss of Earning Capacity

170. Future loss of earning capacity is difficult to assess in the present case. The medical evidence shows that the plaintiff has a significant disability with her vision and that this disability could cause future economic loss. The court has to do the best that it can to provide compensation which is adequate to the plaintiff and fair to the defendant, based on the limited evidence available. In State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [87] the court said:

“In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”

171. Section 13 of the Act governs the assessment of future loss of earning capacity and provides:

“(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)   When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3)    If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

172. The operation of s 13 of the Act, which is in identical terms to s 126 of the Motor Accidents Compensation Act 1999, has been considered and clarified in many well-known Court of Appeal cases. I respectfully adopt the approach extracted from those cases and set out in the judgment of Justice Hoeben in Williams v Twynam Agricultural Group Pty Limited [2011] NSWSC 1098 at [216]. That approach is as follows:

1. The court must assess the “most likely” of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration);

2. Assess the plaintiff’s economic prospects as a consequence of the accident;

3. Compensate the plaintiff for the difference between (1) and (2) including, where appropriate, the use of a buffer;

4. Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved (1) even had the accident not occurred;

5. Include a statement of the assumptions made as to the plaintiff’s most likely future circumstances on which the award was based and the relevant percentage adjustment.

173. The plaintiff gave evidence that when the accident occurred in January 2014, she was in between Year 10 and Year 11 at school. At that stage she wanted to be a helicopter pilot in the Police Force or in the Special Forces. She did not want a desk job but wanted an active job. No evidence was put before the court about the earnings in such jobs, the qualifications required to obtain such jobs, or how easy or hard it was to obtain such jobs.

174. As already recited, the plaintiff has pursued study since leaving high school with an excellent ATAR mark, but has changed courses and been unsettled in her study. However, she has achieved worthwhile results overall. She is working part-time and in a few years will have a degree which should enable her to obtain more remunerative work.

175. Counsel for the plaintiff submitted that the matter should be approached by recognising that nett average weekly earnings of full-time adult Australians are now $1,177.25 per week. He submitted that this should be increased by 50% due to the high income potential of the plaintiff to $1,765 nett per week. The loss was then claimed at 25% of this most likely weekly wage, resulting in a theoretical loss of $441 nett per week.

176. The plaintiff is now 20 years of age and has 50 years of potential working life to a retirement at age 70. The appropriate multiplier is 976.2. Counsel for plaintiff submitted that there should be a 15% discount for vicissitudes. His calculation was: $441 x 976.2 x 0.85 = $365,928. To this he submitted superannuation should be added.

177. Counsel for the defendant made submissions in accordance with s 13 of the Act. Firstly, he submitted that the choice of subjects for Years 11 and 12 must have been selected before the accident, and those subjects would not have assisted the plaintiff to obtain further education and qualifications as a helicopter pilot. There was no evidence presented by either side as to any pre-requisites in high school subjects required to enable a person to eventually qualify as a helicopter pilot.

178. Counsel for the defendant submitted that the “unusual career choice” of being a helicopter pilot was “unrealistic” and was not, in accordance with s 13 of the Act, the most likely future circumstances but for the accident. Counsel did accept that if there was a finding that future loss of earning capacity had been impacted, that in accordance with the authorities the court could award a cushion or buffer. However, counsel stressed that there was an obligation upon the plaintiff to establish that any impairment which she suffers as a result of the accident must be productive of actual economic loss. He pointed out that a career path with a degree in psychology might place the plaintiff in a position where she had a greater potential for earning than either as a helicopter pilot or as a sports scientist (which was another desire of the plaintiff which she could no longer pursue). That point is well made.

179. I accept the submission of counsel for the plaintiff that a potential weekly wage for the plaintiff, and her most likely future circumstances, would have been employment in some occupation which would have paid her more than average weekly earnings. I have already recited the plaintiff’s high academic achievements at high school and that she is studying towards a degree.

180. I accept the submission of counsel for the plaintiff that a fair measure of the plaintiff’s uninjured earning potential is the figure of $1,765 nett per week. That is my finding relevant to s 13(1) of the Act and step (1) in the approach of Justice Hoeben referred to above.

181. The medical evidence recited above shows that the plaintiff, with all her visual difficulties and their sequelae, has a potential interference with her earning capacity. The range of possible interference could be anywhere from minimal (if no further complications arise) to a complete destruction of her earning capacity if she develops any condition which renders her completely blind, such as serious glaucoma or an injury to the right eye.

182. As previously recited, even the expert ophthalmologists provide no guidance as to the level of such risks in the future. So far the plaintiff is going along without any serious deterioration in her condition. Nevertheless, she has an interference with her capacity to study and to read, and it would appear that now an outdoor active occupation has been closed off for her, she will be confined to a job requiring her to work with text and screens, with all the problems that those activities presently cause her.

183. I also take into account that she has lost the capacity for many activities for which she would otherwise have been qualified. There is no question that the plaintiff, given her high level of achievement in gymnastics and other sports, and given her academic ability, could have moved into sports science, sports coaching or sports management. Once again there were no figures provided for what might be earned, but the plaintiff must be compensated for the very fact that there are a wide variety of more active occupations, which require perfect eyesight, which she will never be able to pursue.

184. Taking all those matters into account, I am of the view that a reduction of 20% of the plaintiff’s future earning capacity, assessed at the figure recited above of $1,765 nett per week, is the appropriate approach. There should be a 15% discount for the vicissitudes of life. Further, there should be deferral for two years to reflect the fact that the plaintiff will take that long to finish full-time study and move into the workforce. She would not have been earning before that time, even if uninjured.

185. On the 5% tables, the two year deferral factor is 0.907. Taking all of those matters into account, the calculation for the award for future loss of earning capacity is: $1,765 x 0.2 x 976.2 x 0.85 x 0.907 = $265,668.

186. Future loss of superannuation contributions was claimed at 12.5%. On my understanding of the authorities, the appropriate multiplier is 11%.

187. The calculation for future loss of superannuation contributions is: $265,668 x 0.11 = $29,223.

Conclusion on Damages

188. There will be a judgment for the plaintiff for the total of the following heads of damage:

HEAD OF DAMAGE	AMOUNT
Non-economic loss	$349,500.00
Past out-of-pocket expenses	$4,974.30
Future out-of-pocket expenses	$43,441.00
Domestic assistance and care	Nil
Past economic loss	Nil
Future loss of earning capacity	$265,668.00
Future loss of superannuation	$29,223.00
TOTAL	$692,806.30

Orders

189. My orders are:

1. Judgment for the plaintiff against the second defendant for $692,806.30.

2. Order the second defendant to pay the plaintiff’s costs.

3. Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

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Decision last updated: 04 October 2018