Thomas v Shaw - [2009] NSWSC 510

No judgment structure available for this case.

CITATION: Thomas v Shaw [2009] NSWSC 510

HEARING DATE(S): 16/2/09 - 20/2/09
30/3/09

JUDGMENT DATE :
26 June 2009

JURISDICTION: Common Law

JUDGMENT OF: Kirby J

DECISION: 1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below.
2. The defendants should pay the plaintiff’s costs.
3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest.

CATCHWORDS: CIVIL LAW - NEGLIGENCE - child aged 10 on sleep over - fall from bunk bed - no guardrail or ladder - mandatory Australian Standard requiring guardrail and ladder - Civil Liability Act 2002 - accident foreseeable and preventable - causation established - DAMAGES - personal injury - issue whether child suffering from organic brain damage or psychiatric illness - significant injury - 50% of worst case - drop out of school - loss of earning capacity - other losses.

LEGISLATION CITED: Civil Liability Act 2002
Evidence Act 1995
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Doubleday v Kelly [2005] NSWCA 151
Port Stephens Council v Theodorakakis [2006] NSWCA 70
MD v Sydney South West Area Health Service [2009] NSWDC 22
Kallouf v Middis [2008] NSWCA 61
Nominal Defendant v Gardikiotis (1995) 186 CLR 49
Campbell v Nangle (1985) 40 SASR 161
Ren v Mukerjee [1996] ACTSC 119
Pellow v NRMA & Anor [2004] NSWSC 152

PARTIES: Cameron Brock Thomas
(by his tutor Doreen Thomas) (Pl)
William Richard Shaw (1st Def)
Susan Joyce Shaw (2nd Def)

FILE NUMBER(S): SC 2008/20166

COUNSEL: R Royle (Pl)
N Polin (Defs)

SOLICITORS: Slater & Gordon (Pl)
Moray & Agnew (Defs)

Cameron Brock THOMAS (by his tutor Christine Thomas)

-v-

William Richard SHAW and Susan SHAW

(20166/2008)

I N D E X

1. LIABILITY Para No.

The action. 1

Background. 8

Cameron’s account. 14

The evidence of Joel. 37

Other relevant evidence. 50

Evaluation. 66

The Civil Liability Act 2002. 75

Causation. 97

Obvious risks. 103

Contributory negligence. 107

Background. 111

Cameron before the accident. 116

The immediate impact. 125

Changes in Cameron’s personality. 135

Treatment undertaken. 136

Defendants’ medical reports. 174

The reports of Associate Professor Reid and Dr Roberts. 187

The concurrent evidence of Associate Professor Reid and Dr Roberts. 193

Reports of Associate Professor Quadrio and Dr Lee. 227

Concurrent evidence of Associate Professor Quadrio and Dr Lee. 243

Award for non economic loss. 270

Economic loss. 280

Future superannuation. 293

Out of pocket expenses. 294

Future out of pocket expenses. 295

Past care. 304

Future care. 308

Funds management. 312

Orders. 315

**********

1. LIABILITY

The action.

1 KIRBY J: Cameron Brock Thomas (“Cameron”) (the plaintiff), by his tutor, claims damages against William and Susan Shaw in respect of serious head injuries sustained in a fall on 23 April 2004. Cameron was then ten years old. He had been staying with his friend, Joel Shaw, at Joel’s home at Broadmeadow Esplanade, Bilambil Heights, on the north coast of New South Wales. Joel’s parents, the defendants, were the owners and occupiers of that home.

2 Let me identify at once the primary factual issue on liability. There were two versions as to what Cameron was doing immediately before he fell. The fall occurred within Joel’s bedroom, which was a small room on a concrete slab floor, which had been carpeted. Within the room there was a bunk bed. The bed, and another which was identical, had been purchased by the Shaw’s in 1997 when they lived in Victoria. When purchased each was fitted with a ladder and guardrail. For reasons which I will describe, the ladders and guardrails had been removed from each bed about a year after purchase.

3 On the morning of the accident, Joel occupied the top bunk. He was still in bed. Cameron climbed up the back of the bed and sat alongside him. His legs were dangling over the side. He was positioned not far from Joel’s head, which was on the pillow. They talked.

4 Adjacent to the bunk bed, there was a chest of drawers. It was in front of the window and directly beneath the pillow of the top bunk (Exhibit 4). The controversy concerns how Cameron got down from the top bunk. Cameron gave evidence (supported by his parents, who claimed to be repeating what Joel had said to them) that he was endeavouring to slide down because he was too scared to jump. He placed one foot on the chest of drawers, searching with the other foot for the lower bunk. He then fell, although he had no recollection of the fall.

5 The alternative version was given by Joel in evidence and to some extent was supported by his mother. It was quite different. According to Joel, Cameron dropped both feet onto the chest of drawers. He then stood up, turned towards the centre of the room and jumped. As he did so, he shouted a word which sounded like: “Geronimo”. Joel did not see him land. However, within a short time he heard his cry and knew that something was wrong.

6 So the plaintiff’s case was that he was getting down as best he could from a bunk bed, without the benefit of a ladder or the handhold provided by a guardrail. The defendants’ case was that the accident really had little or nothing to do with the bunk bed. Cameron jumped from the chest of drawers, skylarking, as children do.

7 Before going to the evidence, let me give the background to this claim.

Background.

8 Cameron was born in January 1994. He is the second of four children of Christine and James Thomas. The four children are Bradley (now aged 18), Cameron (now aged 15), Lachlan (11 years) and Brenton (9 years). They slept in bunk beds and had done so for three or four years before the accident (T 16). However, their beds were fitted with ladders and guardrails (T 16). Cameron used the ladder to gain access to the top bunk (T 17).

9 In 2001 the Shaws moved into the neighbourhood. They also had four boys, although they were somewhat older. Cameron regularly went to their home after school to play with Joel. Joel was aged 13 years. The Shaws had a tree house and a trampoline.

10 Mrs Shaw gave evidence that there were two bunk beds. They were brand new when purchased (T 262). The top bunk, in each case, was fitted with a tubular steel guardrail. Mrs Shaw said this: (T 263)

11 The bunks were also fitted with ladders made of tubular steel (T 263). The ladders had U-shaped hooks at either end (T 263). They did not extend to the floor, but were hooked onto the tubular frame of the bed itself. They were also removed. Mrs Shaw said this: (T 263)

12 On the evening of 22 April 2004, Cameron was invited by Joel to sleep over at his place. He had never previously slept over at anyone’s place. His mother gave him permission, provided he was back in time for his dental appointment the next morning (Exhibit A: p 174). Mrs Thomas said in cross examination that she had not been inside the Shaws’ home. She did not know the sleeping arrangements (T 27). She was happy, nonetheless, for Cameron to stay (T 28). Mr Thomas said that he believed that the Shaws were responsible people (T 178).

13 Let me recount in greater detail the evidence given by Cameron and Joel. At the time, each was quite young. When giving their evidence, each was obviously providing a recollection five years on. Having compared their evidence, I will then examine other material, including contemporaneous histories provided to doctors and hospitals, for the light it sheds upon the reliability of each version.

Cameron’s account.

14 Cameron said that he woke up shortly after 7.00 am (T 84). Joel was still asleep. When he awoke, Joel invited him to the top bunk (Exhibit A: p 170). One end of the bunk was hard up against the wall, adjacent to the window (Exhibit 4). There being no ladder, he climbed up the other end (Exhibit A: p 170, para [11]). They talked for a while before Cameron noticed the time. He then climbed down. He described what he did in his affidavit in these words: (Exhibit A: p 170)

“13. There was a chest of drawers next to the bunk bed. There was no ladder to climb down from the bunk bed. I tried to get off the top bunk by facing out from the bed, towards the computer. I put my right foot on the chest of drawers and twisted my body to the left to get my left foot on the bottom bunk. I don’t remember if my left foot reached the lower bunk.

‘I can’t stand this’

‘I wish this didn’t happen to me’

‘Mum can you get me a Panadol’

15 When giving evidence, Cameron elaborated. He said he talked with Joel for about ten minutes (T 85). He sat on the end closest to the window, near the pillow (T 84). He then described how he got down: (T 85/86)

“Q. How did you get down?
A. I put my right foot on the chest of drawers.

Q. First, were you up the top?
A. Yes.

Q. Take it little more slowly because his Honour wants to know what you remember of this accident?
A. Yes.

Q. You were sitting on the top near the pillow. Take it step by step; what did you do first?
A. I started to lean forward.

Q. Where were your legs?
A. My legs were hanging off the bed.

Q. Which way were they facing?
A. They were facing the wall, so my back was touching the bed.

Q. So, you were facing out from the bunk?
A. Yes.

Q. Take it step by step?
A. I went to slowly move down and I put my right foot on the chest of drawers.

Q. Whilst you were doing that, where were your two hands?
A. On the bed, on either side of my body.

Q. You described your two hands as being either side of your body?
A. Yes, on the brace. Then, I tried to put my left foot down to the lower bunk.

Q. Then what?
A. And that is when I fell.

16 In chief, Cameron was asked the following: (T 86)

17 When cross examined, counsel for the defendant put that the plaintiff’s account was a reconstruction, based upon conversations with his parents. The examination was as follows: (T 117/118)

18 Cameron acknowledged that he had spoken to his parents about what had happened (T 112). He denied that he had been influenced by what they had said to him (T 113).

19 Counsel then put an alternative version. The plaintiff was shown a sketch plan depicting the chest of drawers under the window adjacent to the pillow on the bunk bed. The following was put: (T 119)

“Q. And at that point your right leg was actually in contact with the top of the chest of drawers?
A. No, my right leg, to contact with the chest of drawers I had to lower myself a bit.

Q. How much, do you remember?
A. No.

Q. You don't remember?
A. No, I'm not sure.

Q. You see, I want to suggest to you that you were actually seated at a position closer towards the wall with both of your legs over the chest of drawers, both of your feet, legs and feet over the chest of drawers?
A. No.

Q. Do you understand what I am putting to you?
A. Yes.

Q. You disagree with that?
A. Yes.

20 The cross examination continued: (T 119/120)

“Q. I want to suggest to you that you then went to jump off the chest of drawers and in doing so you slipped forward and that is how you fell?
A. No.

Q. And I want to suggest that at that time, just at the time you were making the jump, you made a noise or called out, probably something like ‘Geronimo’?
A. No.

Q. You are chuckling as I say that to you?
A. Yes.

Q. Why are you chuckling?
A. Because I find it absurd.

Q. When I say the word ‘Geronimo’, does it have some particular connotation for you?
A. No.

Q. It doesn't have a connotation of someone jumping?
A. I have never said that word, I never use that word.

21 There was an aspect of the plaintiff’s evidence, according to the defendants, that demonstrated that his recollection was suspect. Cameron gave evidence that Joel’s brother, Luke, occupied the bottom bunk. He had slept on a mattress on the floor. There was a good deal of evidence that touched upon that issue. Some evidence suggested that Cameron may be right, and other evidence that he was clearly wrong. As the defendants remarked in submissions, not a lot turns upon the discrepancy (DS: para [29]). If a finding were called for, I think it probable that Cameron was wrong. But he may well be right. It was his first sleep over. His recollection may well be more accurate than the recollection of those who were remembering a peripheral detail much later. In the end, for me, the matter had no real bearing upon Cameron’s reliability.

22 The suggestion was also made that the plaintiff had told various doctors that he had no memory of what happened. The following was put to Mrs Thomas: (T 31)

“Q. And you're aware, aren't you, that he has told many of the doctors that he has no recollection of the incident?
A. I know he has told me he does not recall the fall, because I questioned him re that. A ‘fall’, in the English language, is a fall from gravity; that actual movement moment that he slipped and fell, blank out: Does not recall the actual fall itself, but he very clearly recalls what led to the fall.

Q. For example, and I won't go through every single medical report, but I have got one here, when he saw Dr Roberts, that he reported he couldn't remember the incident but sometimes wished he could?
A. Uh-huh (Witness nodded).

23 Counsel’s question was in fact misleading, although there was no objection. The report of Dr Roberts included these words: (Exhibit 5: p 6, para [1.29])

“1.29 Master Thomas told me that it occurred on 23.4.04. He told me that he does not actually remember it. He indicated that his last actual memory was of putting his foot down on the bench as there was no ladder or protective railing and ‘then blanked out’. He told me that his next actual memory was of being at home in bed ...”

24 Cameron provided similar accounts to other doctors. Mrs Thomas wrote a letter to the insurance investigator about one year after the accident, in which she agreed she said: “Cameron has no memory of what actually happened, so we’re relying on the information supplied to us by the Shaw family” (T 33). Mrs Thomas explained: (T 33)

“Initially Cameron was feeling very confused. He knew he fell off the bunk. He very clearly, when he went through a period, I suppose about maybe three, four, five months after, of feeling very confused, he was very clear to me subsequently, and to other doctors, as is reported in all the medical reports, that he fell from the bunk bed and how he actually came to be upon it.”

25 Mrs Thomas, in this evidence, was adverting to an aspect of Cameron’s psychiatric condition some months after the incident, which will be described below.

26 There was, nonetheless, one matter in respect of which Cameron’s evidence appeared to be inconsistent, namely, whether he had been on the top bunk before the day of the accident. The cross examination was in these terms: (T 115)

“Q. Now, you have been, I think you said, into Joel's room many times before in the year or so that you used to visit?
A. Yes.

Q. I think you said you visited their house every second day or so?
A. Yes.

Q. You had been up on to the top bunk previously, hadn't you?
A. Yes.

Q. How often do you think over that year or so? Was it every time you went or every second time?
A. No, every couple of times. Not every week or every month, I never really went up on that bed.

27 I then intervened and asked the following question: (T 115/116)

“Q. Are you able to say roughly how many times?
A. I can't remember that far back. I wouldn't go up every day we were there. If any time I was there we would either be outside or on the computers playing a game.

Q. Are you talking one or two, 20 or 30?
A. One or two times.

28 The defendants attached some significance to that discrepancy. However, Cameron was not taken to his previous testimony and asked to explain. When one looks at the question asked in chief, it was perhaps a little confusing. Counsel used the phrase “climb on the bunk bed” (T 86) (supra para [16]), rather than the more direct question in cross examination, “been up on the top bunk previously” (T 115) (supra para [26]). It will be noticed that the plaintiff in chief, after his second answer, said, “sorry”, which may suggest he was not following (supra para [16]).

29 I do not attach much importance to this difference. That said, I accept that Cameron had been on the top bunk a number of times before, although I believe not often. Ultimately, Joel was asked the following question in chief, although his answer appeared at the time, and now, to have been a guess. Joel said this: (T 296)

“Q. You said that before Cameron's fall you had seen him at times sitting up on the top bunk in your bedroom, but you don't specifically recall seeing him getting up and down?
A. Yes.

30 On that issue, if it matters, I prefer Cameron’s estimate of “a couple of times”.

31 However, Cameron was asked how he got up onto the top bed on the occasion of the accident, and up and down on occasions before the accident. There were photographs of the bunk bed (Exhibit 1). The photographs showed the mattress base was some distance from the ground with a horizontal tubular steel strut several feet above. There was then a gap and then the base of the top bunk, with a rounded arch at either end (Exhibit 1). In cross examination, Cameron said this: (T 114/115)

“Q. I think you are describing probably the end of the bunk bed?
A. The end of the bunk bed.

Q. Coming up from ground level there is a horizontal railing?
A. Yes.

Q. You put one foot there?
A. Yes.

Q. And above that there is another horizontal railing?
A. I put one foot there.

Q. Above that is another horizontal railing?
A. I put my right foot up there and stood myself up.

32 Counsel added: (T 115)

33 Cameron acknowledged that, on each previous occasion, he had used the end of the bunk to get up and down (T 116). The following was put: (T 116)

“Q. And essentially you were using the end of the bunk bed as a ladder?
A. Yes. Not such as a ladder, just more of a guide to get down.

Q. You described using the horizontal rails that you would stand on as you went up?
A. Mm-hm.

Q. That's right?
A. Yes.

34 Why, then, counsel asked, did Cameron not use the same means of getting down on the day of the accident? The examination was as follows: (T 116/117)

“Q. So on this particular morning why didn't you go back down that way?
A. Because I just went down that way and I just got down the way I did and I've seen Joel many times just jump down there.

Q. So you had seen Joel jump off the bed actually, had you?
A. Yes.

Q. But I take it that you at least knew on the day that you had your fall that if you wanted to you could have actually climbed down the very way that you got up?
A. Yes.

Q. That was there and available to you?
A. Yes.

Q. If you wanted to?
A. If I wanted to.

35 In re-examination, Cameron said that Joel was much taller and bigger than he was (T 121), a matter disputed by the defendants. According to Mrs Shaw, Joel was developmentally delayed and was not so tall for his age (T 267). There were, nonetheless, real differences between them, quite apart from the three years that separated them in age. Mrs Shaw described Joel as the “leader” in some of their games. To get down from the bed, Joel jumped, whereas Cameron was too scared (T 121). Joel gave evidence that he could place his hands on the top bunk and lever himself up. He said this: (T 289)

36 Let me pass to the evidence of Joel.

The evidence of Joel.

37 Joel gave evidence that he was asleep and awoken by Cameron who was sitting beside him. He said this: (T 291)

Q. He was sitting on the mattress you said?
A. Yes, with his feet hanging off the side of the bed over the dresser drawers.

Q. Right. Now I think there has been some evidence that adjacent to the end of the bed where your head is, is that a chest of drawers beside the bunk bed under the window?
A. Yes.

38 They talked and Cameron told him that he was to be picked up to attend a dental appointment. Joel then described what happened: (T 292)

39 He added: (T 292)

“A. I am laying down and I am looking across at him.

40 Joel’s mother rushed into the room. His evidence continued: (T 292)

and I said ‘I don't know what happened, I think he fell’

41 When cross examined, Joel said that he had been sleeping. He had just woken up (T 300). He was lying down. He could not see Cameron’s feet (T 300). He then said this: (T 301)

“A. He turned himself, he lowered himself on to the chest of drawers and then he turned to face out into the room away from the window.”

42 The cross examination continued: (T 301)

“Q. Okay. And that of course could be because he was trying to get his foot, I suggest to you, on the lower bunk bed, that is one of his feet. That could be the case?
A. No, he was still at the same level, he was just kind of on the chest of the drawers, like standing on it and then he turned.”

43 Joel was quite sure that he had jumped. His evidence continued: (T 302/303)

“Q. I suggest to you that that is exactly what happened, he put himself down on to the chest of drawers with one foot and then he slipped and fell, that is quite possible, isn't it?
A. No he jumped.

Q. But you couldn't see what he was doing because you were lying down, how can you say that?
A. Because I could see him standing there and I saw his body go up as he jumped and that is when he landed. I thought he was joking around, I thought he was fine, I didn't realise because when he landed I couldn't see him, I could see at that level so I didn't know if he landed on his feet or actually landed head first or whatever.

Q. Somebody who jumps, you jumped many times as a kid no doubt, lands on their feet don't they, I suggest?
A. Yes.

Q. Generally?
A. Yes.

44 In answer to questions asked by me, Joel said this: (T303)

“HIS HONOUR

Q. Do you say he actually was at one level and then rose in front of you?
A. Yes.

Q. His head going towards the ceiling, his body down, well, his body in a downward attitude, and how high did he go?
A. It was kind of like just a small hop, it wasn't like a big jump.

45 Joel told his mother when she came into the room: “I don’t know what happened, I think he fell” (T 292) (supra para [40]). When cross examined concerning this evidence, he said this: (T 302)

“Q. When you spoke to, I think you phoned the Thomas' and you said he fell?
A. Yes, that is because I didn't want to say he was jumping off furniture.

Q. That is the first time you have suggested anything of the sort Mr Shaw, isn't it?
A. No.

Q. The reality is that as soon as it happened and your mother came in you told her that he fell?
A. Yes.

46 He added: (T 303)

“ HIS HONOUR

Q. Am I right in thinking though when your mother came in you said, you covered for him in effect because you were frightened that he might get into trouble because he jumped off furniture?
A. Yes.”

47 Counsel for the plaintiff, in submissions, drew attention to an amendment to the Defence filed by the defendants. The original Defence, filed on 24 April 2007, asserted as a particular of contributory negligence, the following: (Pl’s Supp Subs: para [5])

“2. In answer to paragraph 3 of the Statement of Claim, the first and second defendants:

2.1 ...

2.2 ...

2.3 Say the plaintiff fell whilst standing on a chest of drawers next to the bunk.”

48 The Amended Defence, filed on 18 February 2009, was as follows, the amendment being underlined:

“2.3 Say that the plaintiff fell whilst standing on

or jumping

from a chest of drawers next to the bunk; ... ”

49 According to counsel for the plaintiff, Joel’s account was a recent invention which ought to be rejected. Leaving that issue to one side for the moment, let me pass to other evidence which bears upon this issue.

Other relevant evidence.

50 Joel’s mother, Mrs Shaw, was in her bedroom at the time of the accident. She heard the thud and Cameron’s screams (T 269). She rushed into Joel’s room. She saw Cameron lying on the ground, face down on his stomach. His head was to one side (T 269). She naturally asked Joel what had happened. Her account, and his reply, was in these terms: (T 270)

“Q. Doing the best you can, what did Joel say to you?
A. He told me that Cameron was sitting on the side of the bed near his head, that he was talking to him, singing him little songs, whatever, and that he went to - he turned to get onto the chest of drawers, went to jump, said something like ‘Geronimo’ and then slipped and fell.

Q. So it's all quite quick. Could you just--
A. Sorry?

51 There were similarities between that account and the account given by Joel in evidence although Joel suggested that Cameron jumped, his body rising towards the ceiling slightly, rather than slipping as he jumped. However, Mrs Shaw’s account was inconsistent with Joel’s evidence that initially he gave her a false account, covering for Cameron.

52 Mrs Shaw asked Joel to telephone the Thomas’. He did so. According to Christine Thomas, Joel said Cameron “fell off the bunk” (Exhibit A: p 175, para [6]). Mrs Thomas said that she would send her husband straight over to pick Cameron up. Her husband, in his affidavit, said his wife told him that Cameron had fallen off the bunk (Exhibit A: p 180, para [9]). When Mr Thomas arrived at the Shaws’, he was shown into Joel’s room. Cameron was on the bottom bunk. His nose was bleeding. He said this: (Exhibit A: p 181)

“12. Cam appeared distressed, he was thrashing about, moaning, holding his head complaining that he had a ‘massive headache’.

‘Joel told me Cam fell off the bunk bed while he was trying to get down.’

53 Cameron was then taken home but would not settle. Within a short time he was taken to the surgery of their local doctor, Dr Elliott. Dr Elizabeth Elliott recorded the following: (Exhibit B: p 1)

54 Dr Elliott arranged for Cameron to be admitted to the Tweed Heads Hospital that day. She provided the hospital with a copy of her notes, accompanied by a short letter (23.4.04), which included these words: (Exhibit B: p 7)

“This lad fell onto forehead off top bunk. ...”

55 The hospital notes of the Tweed Heads Hospital repeated that history (Exhibit B: p 9, 10). The hospital records included a note made at 12.30 pm on the day of the accident, which was as follows: (Exhibit B: p 10)

“Head injury. Sent in by GP 5/24 ago. Fell off top bunk landing LT side head ... ”

56 Cameron was seen by a doctor at 1513 hours that day. The doctor’s note of the history included these words: (Exhibit B: p 12)

57 The same day the decision was taken to transfer Cameron by ambulance to the Neurological Unit at the Southport General Hospital on the Gold Coast. The ambulance record included the following history: (Exhibit B: p 15)

“Patient fell off top of bunk beds onto concrete floor. Nil LOC. ... ”

58 Once at Southport General Hospital, a further history was taken at 2300 hours [11 pm] on the day of the accident (23.4.04): (Exhibit B: p 32)

“Fall off bunk onto L side head, vomiting.”

59 Soon after his admission to the Southport Hospital, Mrs Shaw brought Joel to the hospital to visit Cameron. Mrs Thomas said the following conversation took place: (Exhibit A: p 176)

‘How did this happen?’

‘Joel told me that Cameron was getting down from the bunk bed and he has put his foot on the chest of drawers and slipped. I am trying to think if he had a sock on at the time. If he had a sock on, that would explain why he slipped.’

‘How does Joel get down?’

‘I just jump down’

‘I was too scared to jump.’

60 Mr Thomas also spoke to Joel. His statement was in these terms: (Exhibit A: p 182)

‘Cam fell from the bunk bed as he was trying to get down’.

61 Mrs Shaw gave evidence that she recalled the visit to the hospital. She spoke to Mrs Thomas, but could not recall the specifics (T 273). She said this: (T 273)

“ HIS HONOUR

62 Counsel for the defendants put to Mrs Thomas the substance of what he suggested Mrs Shaw had said about the incident. The cross examination included the following: (T 41/42)

“Q. And got down on to the chest of drawers?
A. Yes, as a way to alight from the bunk bed.

Q. What she said was that he had in fact put both his feet down and had stood up on the chest of drawers?
A. No, that’s not correct.

Q. I suggest to you that she then said that he in fact had slipped in attempting to jump off the chest of drawers?
A. No, that’s not correct.

63 Counsel’s questions put a version consistent with Mrs Shaw’s evidence, but different from Joel’s account.

64 Mr Thomas was asked about the conversation at the hospital. He gave the following evidence: (T 172)

“Q. If I could deal now with the conversations you had with either had with Mr Shaw, Mrs Shaw or Joel Shaw with regards to what happened on the day in April 2004 when Cameron had his fall. Did anybody at any stage say to you anything contrary to the fact that he had fallen from a bunk?
A. No.

Q. Had anybody ever suggested to you that he jumped from the bunk?
A. No.

65 Mr Thomas was then asked about a later conversation with the Shaws. The examination was in these terms: (T 173)

“Q. Had either of the Shaw's ever said anything different to you than that?
A. Yes.

Q. What did they say that was different?
A. It's got nothing to do with the bunk bed.

HIS HONOUR

Q. Sorry?
A. Nothing to do with the bunk bed.

ROYLE

Q. When did they say that to you?
A. They've said that to me as late as last year.

Q. Was that the first time that they said it to you? Was that the first time they said it to you?
A. The first time Mrs Shaw said it to me and then--

Q. Had she expressed a concern about something?
A. Yes.

Q. What was her concern?
A. She was, I suppose, showing a degree of hostility towards me.

Q. Had they initially in the first couple of years shown any hostility towards you?
A. Not at all.

Evaluation.

66 The defendant in submissions characterised the issue in these terms: (DS: p 14)

“37. There is a clear conflict between Cameron and Joel as to the precise circumstances of the fall. Whilst not a lot ultimately turns on which version is accepted, it is submitted that this Court would accept the version given by Joel.

38. Such a finding would be that in getting down from the top bunk, Cameron got off onto the adjacent timber chest of drawers. He had then turned and in attempting to jump down to the ground, he slipped and fell awkwardly on the ground.”

67 Elsewhere the choice was expressed in these words: (DS: p 17)

“Whether accepting Cameron’s version or Joel’s version it appears that Cameron has slipped and fallen.”

68 The plaintiff, accurately in my view, expressed the issue as follows: (PS: p 7)

“20. There is little dispute in relation to many of the facts. It appears that both accept the plaintiff was sitting on the edge of the bunk facing outwards and lowering himself down with one hand on either side. The dispute is whether the plaintiff placed two or one foot on the chest of drawers and then whether the plaintiff impliedly slipped or jumped.”

69 I accept the evidence of Cameron and prefer his evidence to that of Joel. First, there was a real difference between the account given by Joel and that given by his mother, Mrs Shaw. Mrs Shaw, it will be remembered, was repeating what she claimed Joel had said to her immediately after the incident. She said Cameron had slipped as he jumped. She inferred that his socks had caused him to slip. Joel, on the other hand, described a jump. His description was not that of Cameron slipping. Cameron had both feet above the chest of drawers (T 291). He dropped his feet down and stood up (T 292). He turned to face into the room (T 301). He then jumped, just a small hop, but enough to enable Joel to see him rise in front of him as he lay in bed (T 303). He looked like he jumped down and was fine. But then he started screaming (T 292).

70 Secondly, I accept the evidence of Cameron’s parents. They, likewise, spoke to Joel on the day of the accident. They again spoke to him the following day at the hospital. According to their testimony, the version Joel gave at that time was broadly the same as that given by Cameron. Joel said Cameron fell from the bunk bed as he was trying to get down (Exhibit A: p 182). The account he then gave made the link between the bunk bed and the fall, a link absent on the version he ultimately gave. His ultimate version, as Mrs Shaw later said to Mr Thomas, was that the accident had “nothing to do with the bunk bed” (T 173). It was a version that prompted the defendants to amend the Defence in February 2009.

71 Thirdly, the contemporaneous accounts given to Dr Elliott, the Tweed Heads Hospital and the Gold Coast Hospital all emphasised the link between the bunk bed and the fall.

72 Fourthly, there is no question that Cameron fell on his head. He fractured his skull and seriously damaged his nose, as I will shortly describe. The issue is how did he come to land on his head? I find Cameron’s account of sliding down the bed, trying to use the chest of drawers as a foothold, much more plausible than Joel’s version. It is not difficult to imagine how, in attempting that manoeuvre, searching for the bottom bunk with his other foot, Cameron might lose his balance and fall on his head. In contrast, it is difficult to see how Cameron ended up on his head based upon the description provided by Joel in his sworn testimony. Had Joel given the account which his mother attributed to him, of Cameron slipping, it may have been more plausible. However, that was ultimately not the account he gave.

73 There were other matters, although they are less certain, where I prefer the version of Cameron to that of Joel. Cameron said he did not place both feet on the chest of drawers and stand up. There was no room to do so because it was cluttered (T 121). Joel said, apart from a few trophies, it was clear (T 298). It perhaps would be surprising, in a thirteen year old boy’s room, were the top of the chest of drawers clear. But, however that may be, Joel said Cameron’s feet were “probably” directly over the chest of drawers as he sat on the side of the bed (T 291). From the photographs and the plan (Exhibits 3 and 4), that appears unlikely, when one makes allowance for the pillow on the bunk bed which would have been directly above the chest of drawers. Cameron was some way along the bed, at the pillow end (T 84). He denied that both his legs were over the chest of drawers (T 119). If, as seems likely, he was not directly over the chest of drawers, it would have been awkward to place both feet on the chest. The manoeuvre described by Cameron appears to be a more plausible way of getting down, that is, sliding using the chest as an intermediate foothold.

74 Against that background, let me turn to the provisions of the Civil Liability Act 2002.

The

Civil Liability Act

2002.

75 Cameron was a ten year old boy given into the charge of the Shaws on his first sleep over. The sleep over was in a room with bunk beds. Section 5B of the Civil Liability Act is in these terms:

General principles

5B

(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.”

76 Section 5C(a) is as follows:

5C

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, ...”

77 The defendants, in helpful written submissions, addressed each limb of that section. Was the risk foreseeable? What did the defendants know, or what ought they to have known? The defendants drew attention to the following, amongst other matters (paraphrasing their arguments): (DS: p 18, paras [45]/[46])

78 Mrs Shaw gave evidence that children used to stay quite often on sleep overs (T 264). She knew, of course, that the bunk had no ladder and no guardrail. The bed base of the top bunk was approximately 1.22 metres high, with the mattress resting on top (Exhibit A: p 140). Mrs Shaw said that she had seen boys use the end of the bunk to climb up (T 264). She never saw them climb down (T 265). She only ever saw them jump down: “Boys do a lot of jumping” (T 265). She recognised that boys had a proclivity to climb (T 282). She said: “I would guess that boys will be boys” (T 282). She also recognised that boys can be impulsive (T 282). Indeed, she knew from observation that Cameron was somewhat impulsive (T 283). He was, in her words, “very lively” (T 283). She had seen boys on the top bunk from time to time (T 267).

79 Joel gave evidence that he jumped down from the top bunk. He also acknowledged using the chest of drawers to assist him in getting onto the bunk bed (T 298). He agreed that Cameron would have seen him do that (T 298). I accept, in the circumstances, that it was foreseeable that young children of Cameron’s age would climb onto the top bunk and may improvise in getting down. The occupier ought to have known that there was the risk of harm, absent a ladder and guardrail.

80 Section 5B(1)(b) requires that the risk should not be insignificant. Here, according to the plaintiff, the risk was so significant that, since 2002, there had been a mandatory Australian Standard in respect of bunk beds. The publication by the Australian Competition and Consumer Commission of that Standard included these words: (Exhibit A: p 165)

All bunk beds sold in Australia must meet the mandatory consumer product safety standard for bunk beds administered by the ACCC.

In place since 2002, this mandatory standard requires bunk beds sold in Australia to comply with the Australian/New Zealand Standard 4220: 1994, bunk beds (with variations).

Bunk beds have been associated with many injuries to children. Hazards include falling from the top bunk or small heads and limbs being trapped in the bed framework, often leading to serious or even fatal injuries.

Studies show that in Australia at least 3850 bunk bed-related injuries to children under 15 are treated every year by hospital emergency departments or by general practitioners. Of these cases, about 390 are estimated to result in hospital admission. Almost half of all bunk bed injury cases are in the five-to nine-year age group and, of these, at least 180 need to be admitted to hospital.

The mandatory standard requires bunk beds to comply with various design, performance and marking provisions, including requirements to: ...”

81 The requirements of the Standard included guardrails and a ladder, as a means of access and egress. The expert who provided a report (and who was not required for cross examination), said this: (Exhibit A: p 141)

“21. Both a guard rail as well as a ladder would provide support for someone attempting to climb down from the top bunk. The guard rail offers a hand hold whilst the ladder would provide a foothold. The number of hand holds and footholds are greatly reduced if both of these items are removed.”

82 The defendants submitted that “clearly the risk could be regarded as insignificant”, because Cameron had never descended from the top bunk in this manner before, but had always used the end of the bunk to get up and down. There was no expectation that he would use the chest of drawers in the manner he did (DS: p 20/21, para [49]). However, I am satisfied that the risk was not insignificant.

83 The plaintiff, in these circumstances, suggested that a reasonable person in the position of the Shaws would have taken the following precautions:

84 The plaintiff’s expert, having examined the bunk and having referred to the Australian Standard, stated the following conclusions: (Exhibit A: p 143/144)

“27. It is considered that the circumstances of the accident accord to the fact that at the time of the accident, Cameron would at most, have only 2 functional points of support available to him. This runs counter to the widespread principal that three functional points of support should have been available.

28. It is considered that if the ladder and guardrail had been installed at the time of the accident, then Cameron would have had three functional points of support available to him as he descended from the top bunk, at the time of the accident. Furthermore, it is considered that this would have made it far less likely that he would have (fallen) and may have obviated his need to place his foot on the chest of drawers, all together.

29. Based on the information that is currently available to me, it is considered that a ladder and guard rail had been installed prior to the accident, however they had been left off at the time of the accident.

30. The requirement to provide a guardrail and ladder for mattresses 800 mm above floor height is clearly enumerated in AS4220:1994.”

85 Mrs Shaw, in cross examination, was asked whether, when the bolt securing the railing stripped, she considered replacing it with a larger bolt and washer. She said that she had not. As to the ladder, it was put to her that she could have bound or otherwise secured the ladder fitted to the bunk to prevent it wobbling or slipping. She acknowledged that she could have done so. However, her children were older and did not particularly need it (T 281). The Act requires that, in determining whether a reasonable person would have taken precautions against the risk of harm, the Court must consider the matters in s 5B(2), amongst other relevant matters. The defendants argued that, for many of the reasons already given, the probability of harm was extremely low. Cameron had never done this before. He had always descended using the end of the bed. There was no expectation that he would use the chest of drawers.

86 It cannot be said that, absent a guardrail and ladder, harm was probable each time a child climbed up and down. No doubt many such journeys could be made without incident. But the risk of a fall from height onto a hard floor remained, awaiting a misjudgement or mishap. Cameron was young. As a ten year old, he was just outside what may be termed “the vulnerable age bracket” (five years to nine years) (Exhibit A: p 165). But he was, I believe, still vulnerable. It was highly predictable that a child on the top bunk may improvise in getting down, absent a ladder. Indeed, a child of his age, sitting on the side of the bed, chatting to his friend, would be likely to improvise in getting down when seated in that position. The alternative was to climb back up onto the bed, walk the length of it, and climb down the back. More often than not, a child could be expected to get down successfully. However, there was the real possibility of harm, as recognised by the mandatory Standard.

87 Section 5B(2)(b) requires a consideration of the likely seriousness of harm. Here the risk was of a fall from a reasonable height onto a hard surface. There was a significant risk that such a fall by a child may involve an injury to the head, as happened here. Accidents of that kind inevitably carry the risk of serious harm, again as happened here. A child may fall awkwardly or land on furniture or hit their head. Where they do so, serious consequences could be expected. In short, it was predictable to a reasonable person that a fall whilst descending from a bunk bed was likely to cause serious harm.

88 What was the burden of taking precautions to avoid the risk of harm (s 5B(2)(c)), and similar risks for which the person may be responsible (s 5C(a))? Here the bunk beds, on purchase, had guardrails and ladders, supplied by the manufacturer, which the Shaws regarded as unsatisfactory and which they removed. There was no specific evidence of the cost of refixing them or replacing them. The plaintiff submitted that the ladder could have been simply lashed to the tubular steel at no expense. The guardrail could have been refixed with a replacement bolt and washer (cf T 280). According to the plaintiff, this was a well known hazard which was considered sufficiently bad and important to justify a mandatory Australian Standard, requiring both a guardrail and a ladder (T 381). The defendants submitted that the burden, in the circumstances, was unreasonable (DS: p 24, para [57]).

89 Clearly there was some burden and some cost in taking the suggested precautions. That must be part of the calculus in determining whether the precautions were reasonable.

90 The last specific matter which the Act identifies is the social utility of the activity which creates the risk (s 5B(2)(d)). On that issue, the defendants said this: (DS: p 24)

“59. The Shaws were essentially providing Cameron’s parents with unpaid childcare. Unpaid childcare plays an enormous role in our society. This is particularly so with the prevalence of the ‘single parent’ family and the ‘two parent working’ family. The extreme difficulties faced by many of these families are further magnified by the current economic climate. Of course Mrs Thomas was the sole working parent in Cameron’s family with his father unable to work as a result of injuries and disabilities suffered in an accident. Quite simply, many families in the low socio-economic level and indeed the Thomas family would struggle to survive without the assistance of friends and neighbours providing unpaid childcare. There can be no doubt that a finding adverse to the Shaws is one which will impact significantly on our current society’s use of unpaid childcare.”

91 Were the Court to determine that the Shaws were liable, a safety audit of all premises and some form of induction would become necessary (DS: p 26, para [63]). The submissions asked the following rhetorical question: (DS: p 27)

“68. An acceptance of the plaintiff’s case would have far reaching social implications. Would it mean the end of childhood sleep overs? Would it mean the end of unpaid childcare? Would it mean the end of childhood fun as we knew it?”

92 The plaintiff said that such claims were “nonsense”. If one’s children were put in the care of other parents, those parents had to be careful. They had to take reasonable precautions to avoid foreseeable risks of injury. If they had something dangerous on their premises, like a bunk bed without a guardrail or ladder, they had responsibilities. There is nothing wrong with sleep overs. What is wrong is the failure to take reasonable precautions in the circumstances identified by the Civil Liability Act (T 380).

93 The submission by the defendants is not unlike that made by the defendants in Doubleday v Kelly [2005] NSWCA 151, a case involving a child of eight years who used a trampoline, unsupervised, whilst wearing roller skates. Bryson JA, in a passage quoted by the defendants in their submissions, said this:

Thompson v Woolworths (Queensland) Pty Ltd

94 However, the judgment continued as follows:

“... Counsel for the appellants gave many examples, including the obvious risk that children might leave the premises and expose themselves to danger on the road outside. In his written submissions, counsel wrote: ‘What were the appellants to do? Short of locking the children in the house (where, it must be remembered, all kinds of potential hazards are present), the children would have had to have been constantly monitored.’ ... This was a contention in relation to supervision, which was not the ground on which the Trial Judge found negligence.”

95 Bryson JA later made the following comment:

“[20] ... Counsel’s reference to the supposed need to keep the children locked in the house was an unfortunately extravagant piece of advocacy; the problem could be solved by much simpler means.”

96 Here, I believe, counsel’s claims were likewise extravagant. There were a number of solutions to the potential hazard. Obviously the ladder and guardrail were safety features which the Shaws chose to remove, rather than address the issues which they saw in relation to them. Various possibilities were identified, including the replacement of the bolt securing the guardrail, as well as lashing the ladder to prevent movement. I infer that a handyman could have dealt with the issue, without significant cost. And if that be thought onerous, it was open to the Shaws, especially when young children slept over (such as Cameron), to arrange for them to sleep in the lounge room on mattresses. That in fact was done when a number of children were sleeping over (T 285). In the circumstances, I believe that a reasonable person in the position of the Shaws would have taken such precautions (s 5B(1)(c)).

Causation.

97 The Act makes the following provision in respect of causation:

General principles

5D

(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’).

(2) ...

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

98 The defendants described the issue of causation as “probably the greatest difficulty the plaintiff” faced. The defendants said that the absence of a secured ladder was not causative of the fall for many reasons, including the following, again paraphrasing: (DS: p 28, para [72])

Cameron had been on the top bunk a number of times before, each time using the bars at the end of the bed to get up and down.

He had no difficulty doing this.

He recognised that means of egress was available to him.

For no apparent reason, he chose to get down via the chest of drawers.

The bunk had been used for six years previously without incident.”

99 However, for the reasons given, and notwithstanding what had happened in the past, it was foreseeable that, absent a ladder, a child may improvise when climbing down from the top bunk. Joel, for instance, usually jumped down, as Mrs Shaw acknowledged. A child sitting on the edge of the bunk may well choose to get down another way, rather than climb back onto the bed, walk along to the end and then climb down. Such behaviour could not be described as unusual or unpredictable. Had a ladder been available, it would have been a simple matter for the child, sitting on the bed, to swing onto the ladder and descend. Alternatively, had a guardrail been available, and had the child slid off the bed, as he lowered himself down he could have held onto the guardrail to steady his descent. A hand hold would have been available, whereas none was available because it had been removed. But for the absence of one or other or both of these safeguards, the harm probably would not have occurred. Had there been a ladder, Cameron I believe would have used it. He said he was scared of jumping down. The bunk beds he had at home were fitted with ladders, which he used (T 17). Absent a ladder, but assuming a guardrail, it would have been a sensible and obvious thing to use the guardrail to lower himself to a position close to the floor. I am satisfied that factual causation has been demonstrated.

100 Is it appropriate that the scope of the negligent person’s liability extend to the harm so caused? The Australian Standard was introduced because it was recognised that bunk beds have a significant potential for serious harm to children, absent precautions. There is a need for precautions, amongst other things, in respect of the type of accident that occurred here, that is, a fall from a height. Here there was no evidence that the defendants were aware of the Australian Standard. However, the bunk beds they had purchased had guardrails and ladders. They were clearly provided for reasons of safety. As stated, when they encountered problems, they chose to remove these safety features rather than address the problems. And they did that whilst still permitting children, significantly younger than their own, to have access to the beds. The potential for accident to a young child climbing from the bed was both foreseeable and preventable.

101 In the description provided by Mrs Shaw, a bolt securing the guardrail on one of the two bunk beds stripped (T 263). She and her husband then removed both guardrails and both ladders. It would have been better, more logical, and certainly much safer, had they replaced the stripped bolt. The decision to dismantle the safety equipment on the beds rendered them potentially unsafe for young children of Cameron’s age, or less.

102 In these circumstances, I believe it is appropriate that the responsibilities of the defendants should extend to the harm so caused. I believe s 5D(1)(b) has been satisfied.

Obvious risks.

103 The defendants submitted that the risk Cameron faced was an obvious risk, as defined by s 5F of the Act. According to the defendants, objectively Cameron’s attempt to get down from the top bunk in the manner he described was an obvious risk (DS: p 32, para [78]). He is presumed to have been aware of such risks, unless he satisfied the Court, as a matter of probability, that he was not aware. It was submitted that the plaintiff had not discharged that onus (DS: p 32, para [79]).

104 The plaintiff answered these submissions by asserting two things. First, if the defendants wished to rely upon the suggestion that the risk was obvious, then it had an obligation to plead it under the Uniform Civil Procedure Rules 2005 (r 14.14(2)) (see Port Stephens Council v Theodorakakis [2006] NSWCA 70; and MD v Sydney South West Area Health Service [2009] NSWDC 22, per Goldring DCJ). They had not done so. Had it been in issue, the plaintiff could have addressed the onus of demonstrating that, even though the risk was obvious, he (as a ten year old) was not conscious of it. No such questions were put because it was not an issue.

105 Secondly, it was said that, in any event, the risk of descending as described, perhaps slipping because he was wearing socks, was not an obvious risk to a ten year old child.

106 I accept both submissions by the plaintiff.

Contributory negligence.

107 The defendants did plead contributory negligence. Section 5R of the Act is in these terms:

“Standard of contributory negligence

5R

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

108 The defendants submitted that, were liability found, any damages awarded should be significantly discounted (DS: p 33, para [83]). The plaintiff submitted that no such finding should be made. Cameron’s age was relevant (Doubleday v Kelly (supra) paras [93]-[95]). The plaintiff made the following submission: (PS: p 11/12)

“36. The plaintiff was aged 10 at the time of the accident. He was faced with the challenge of descending from the top bunk. He was accustomed to using a ladder. His friend Joel Shaw got down from the top bunk by jumping but the plaintiff was too afraid to do this. The method of lowering himself onto the chest of drawers and then to the lower bunk (or lowering himself onto the chest of drawers and jumping) was a reasonable response by the plaintiff to overcome the challenge he faced. Bearing in mind the plaintiff’s age and his situation, no contributory negligence should be apportioned against him.”

109 Again, I accept the plaintiff’s submission. I am not satisfied that a finding should be made that Cameron was guilty of contributory negligence.

110 Having established liability, Cameron is entitled to damages. I now turn to that issue.

Background.

111 Cameron’s father, James Thomas, was born in July 1956, and his mother, Christine, in December 1962. Both were Jehovah’s Witnesses, but abandoned that church approximately 15 years ago (T 39). As a consequence, they have remained substantially cut off from their respective families (T 39). This aspect of their lives was explored by various psychologists and psychiatrists. It would appear, however, to have little or no relevance to this case.

112 Mr James Thomas worked in the car industry. In 1979 he had a serious motor vehicle accident. He suffered a head injury. He returned to work in 1982 (Exhibit A: p 180). He and Christine married in 1988 (Exhibit A: p 180). However, he ceased work due to ill health in 1991. He thereafter received a pension. Mrs Thomas was working part time as a finance officer at the time of Cameron’s accident. She now works a nine day fortnight (T 198). Mr Thomas described himself as “a house husband”. As mentioned, Mr and Mrs Thomas have four children, all boys. Bradley 18, is now undertaking a degree in electrical engineering, Cameron is 15, Lachlan 11 and Brenton 9. Lachlan and Brenton are still at school. Mrs Thomas described her two youngest sons, academically, in these terms: (T 11)

“Q. How old is Lachlan?
A. Lachlan is aged 11.

Q. Where is he at school?
A. Lachlan is at Bilambil Primary School.

113 Mrs Thomas added, referring to both children: (T 11)

“ ... they actually put both children in a composite class because they do perform very well and so Lachlan is a 5/6 as a grade 5 student because they feel he could keep up with the grade 6.”

114 Lachlan is very definitely at the top of his class (T 11). She described Brenton as follows: (T 11)

115 It will be remembered that the eldest, Bradley, had recently commenced a university course in electrical engineering (T 11). He was described by the Deputy Principal of Tweed River High in these terms: (T 133)

“Q. You have also had at your school Bradley who is the elder brother, is that correct?
A. Yes, that is correct.

Cameron before the accident.

116 There was no real doubt concerning the symptoms suffered by Cameron. The fundamental medical issue was whether such symptoms derived from brain damage, caused by the accident and, specifically, frontal lobe damage. The defendants’ medical experts thought it more likely that such symptoms were psychiatric in origin rather than organic. Other experts believed that the accident caused organic brain damage and that psychiatric problems thereafter developed, contributing to Cameron’s disablement. It is important, therefore, to understand what Cameron was like before the accident. Mrs Thomas provided the following description: (Exhibit A: p 176)

“18. Before the accident Cameron was very happy and had a passion for life, family and friends. Cameron was more a recreational sportsman than a competitive one. He loved trampolining, skateboarding and swimming. He rode his bike and played school sport. He was not outstanding but enjoyed it.

19. Cameron learnt piano and clarinet and enjoyed playing and listening to music. Cameron was a good student at school, he was talkative in comparison with my other boys. He was towards the top in maths in grade 5 and strong in other subjects. He completed his homework and other tasks at home. Importantly he could focus and complete his tasks without difficulty.

20. Cameron was a gregarious boy who had an amazing imagination and tended to take the lead in playing with others as he was very gregarious.”

117 When giving evidence, Mrs Thomas described music as Cameron’s passion, his gift (T 12). He had lessons on both the piano and clarinet. His interaction with family members was described in these terms: (T 12/13)

“Q. And how was he with his three brothers?
A. Very good. He was just interacting with them on a daily basis. Each would have their different interests and he was fine with them.

Q. How about his interaction with yourself and your husband?
A. I had no big problems and issues at all with Cameron.

Q. Were there any temper tantrums or other problems that you noted?
A. No.

118 Mr James Thomas described Cameron in similar terms (T 161). There was nothing unusual or abnormal about him (T 161). He said this: (T 167)

“Q. What was your relationship like with him before this accident? How would you regard your relationship as a father to a son?
A. I admired him. You know, I admired him, because he was he was courageous and care-free, you know, he was a good kid.

Q. What was he - did you have any difficulty with him doing things you asked him to do?
A. No. Not at all. No. I tried - I tried to bring Cameron up exactly how I did my other three boys.

Q. Did he react any differently from the other boys in any material respect?
A. Not at all.

119 Later, Mr Thomas was asked to explain what he meant when he described Cameron before the accident as “carefree”. He said this: (T 171)

“A. In a way that he was unafraid to - to do something, like I can give you an example, if you wish. That at a particular time we were at show grounds and we were watching a man shear some sheep and we were in a group of large people and he asked for someone to come and shear a sheep. And my son was the first one to put his hand up and wanted to do that. So that's the sort of boy he was in an example as to, you know, he was keen on life and enjoying things and he was, you know.

Q. Was he ever anxious before?
A. No, not at all.

120 His brother, Bradley, gave evidence. Bradley was a very impressive young man. He described Cameron in these terms: (Exhibit A: p 191)

“4. ... Before the fall I remember Cameron to be very active, outgoing and social. He had more friends than me and was an outdoor kid. He would skateboard, swim, bike, play sports with his mates. He played the clarinet and piano at which he excelled.”

121 On 27 April 2004, that is four days after the accident, Cameron was interviewed by an occupational therapist. He was then a patient at the Gold Coast Hospital. The note of the therapist recorded the following: (Exhibit B: p 39)

School

Leisure

Selfcare

122 The entries in respect of self care are important. One of the dramatic and enduring changes since the accident, according to the family whose evidence I accept, was the loss of what is termed “executive function”, that is, the ability to plan, organise and follow through. Mobilising Cameron for school each day had been a significant struggle (T 174), which took time and effort (T 194/195). It also took its toll upon the whole family. It is behaviour said to be consistent with frontal lobe injury, as I will shortly describe.

123 Cameron’s school reports before the accident were tendered (Exhibit 6). They are conveniently summarised by Dr Stephen Buckley, a consultant physician in rehabilitation medicine (he having seen Cameron in May 2007), in these words: (Exhibit A: p 85)

“His 2002 school report for Year 3 is entirely satisfactory with effort indicated as ‘very good’ for six subjects, ‘good’ for three subjects and the only subject identified as ‘requiring more effort’ was indeed writing.

The general comment is encouraging but indicates:

‘ ... He gets distracted from work by his friends at times but will always follow through with his responsibilities when asked.’

The Year 4 (2003) report is even better with ‘excellent’ effort indicated for six subjects and ‘very good’ for five subjects with his worst reported effort being ‘satisfactory’ in only one subject. In writing he has ‘improved greatly’. The general comment is entirely positive apart from the comment ‘he is chatty at times but will take on responsibility when asked.’”

124 Cameron was in Year 5 in 2004 when the accident occurred. There was a report from that year which was likewise extracted by Dr Buckley. However, the accident occurred early in the year (23.4.04). I infer that the report (which is undated) was compiled some time later that year. I will return to the school reports provided after the accident.

The immediate impact.

125 Medical reports were tendered by the defendants from Dr Lee, psychiatrist, and Dr Wendy Roberts, a psychologist (Exhibit 5). Both had been provided with voluminous material by the solicitors for the defendants, when qualified. Each assumed certain matters in Cameron’s history which suggested psychological problems before the accident. There was, for instance, a suggestion in one report that Cameron had sucked his thumb since the age of five, which, according to Doctors Lee and Roberts, was capable of suggesting that he suffered from anxiety. However, the uncontradicted evidence from Mr Thomas was that Cameron sucked his thumb as a baby but had not done so since he was a young child. He began sucking his thumb again after the accident, and continues to do so (T 162).

126 Further, there was a typographical error in a report provided to Doctors Lee and Roberts which created the impression that Cameron had seen a psychologist before the accident. He had not.

127 I accept the evidence of family members in their description of Cameron before the accident. He was a normal, happy child. There is no evidence that the family was dysfunctional. On the contrary, I accept that it functioned well.

128 Returning to the day of the accident, it will be remembered that Mrs Shaw heard a thud and a scream and then rushed into Joel’s bedroom. She saw Cameron lying on the ground, face down, his head to one side (T 269). He did not lose consciousness, although he appeared not to remember all that had happened. Mr Thomas, Cameron’s father, once notified, immediately drove to the Shaws’ home. When he entered the bedroom Cameron was distressed, moaning and holding his head. He saw blood coming from Cameron’s nose and ear (T 163).

129 Cameron continued to complain and was vomiting. As previously described, he was taken to Dr Elliott and ultimately admitted to the Tweed Heads Hospital. A CT scan was undertaken of his head. The report included a mastoid fracture, as well as the following: (Exhibit B: p 16)

“There is a solitary, 5mm diameter, hyperdense lesion seen in the region of the cortex of the right temporal lobe. ... ”

130 A further CT scan was undertaken at the Gold Coast Hospital. The report was as follows: (Exhibit B: p 126)

“6mm right temporal cortical haemorrhagic contusion. Left base of skull fracture involving the mastoid air cells with adjacent intracranial air and a 4mm left retrocerebellar extra dural haematoma.”

131 When admitted to the Southport Hospital on the Gold Coast, Cameron was alert with a Glasgow Coma Scale of 15 (the highest score). His cranial nerves were intact, apart from decreased hearing on the left (Exhibit B: p 133). The CT scan was repeated on 4 May 2004, showing a complete resolution of the haemorrhages (Exhibit B: pp 41; 133).

132 The last of these findings is open to doubt. An MRI was undertaken on 28 November 2004, and the report was in these terms: (Exhibit B: p 6; 123)

“ DIAGNOSIS

1. SEVERAL LOW SIGNAL FOCI ON THE GRADIENT IMAGES CONSISTENT WITH PRIOR TRAUMA.

133 Professor Reid, a neuropsychologist, gave evidence that a CT scan was crude in terms of picking up lesions in the brain (T 328). Looking at an image on a CT scan was like looking through frosted glass, whereas an MRI is like an image through clear glass (T 327). On 30 November 2004, an EEG showed “mild dysrhythmic features over the right posterior hemisphere” (Exhibit B: p 124).

134 There was, apparently, a further MRI undertaken on 12 January 2005, which was said to show no abnormality (Exhibit B: p 73). I will deal with the significance of these findings below.

Changes in Cameron’s personality.

135 I have digressed to deal with the radiological evidence. Cameron’s family gave evidence that, after the accident, there were immediate and significant changes in his behaviour. According to his mother, he could no longer stand noise (T 17). He abandoned the clarinet, although he continued with the piano for some time. He was angry, and disrupted the family (T 17). It was like “walking on eggshells” (T 17). He was advised by doctors not to play sport (T 17). He became withdrawn and socially isolated (T 17). Sleeping was a problem (T 19). He would wake up terrified (T 19). He was impulsive and unpredictable (T 17). In time he became very depressed, even talking of suicide (T 18). His father described him as “a different boy”, moody, aggressive, unco-operative and lacking in motivation (Exhibit A: p 183). Cameron was acutely aware of these changes. He said this: (Exhibit A: p 171)

“21. I noticed I became short tempered and got involved in lots of arguments. Over time I lost most of my friends and think it is because I became moody, short tempered and angry. I also became depressed and unhappy about the changes in me.

22. I found it difficult to concentrate at school or anywhere else and never manage to complete my tasks. I continued to have headaches.

23. I lost all motivation to continue with my sports and other hobbies including skateboarding, swimming, bike riding, soccer and tennis.”

Treatment undertaken.

136 On 9 June 2004, Cameron saw Dr Malouf, an ENT specialist. He complained of headache, retro-auricular pain, more on the left than the right, and neck pain on lifting. On a tuning fork test, Cameron appeared to have left sided hearing loss. Dr Malouf described Cameron’s injuries in these terms: (Exhibit B: p 52)

HIS HONOUR : Will the same problem arise in the context of TAFE?

QUADRIO: I wonder if he will pass the first week or two. Maybe there is a honeymoon period that he is no longer struggling in the school environment that he was struggling in for a couple of years and I think it is one-to-one tuition as well rather than surviving in a class.

HIS HONOUR: Could I just get Dr Lee's comment on that?

265 Associate Professor Quadrio added: (T 244)

“Well, it may well assist him, but I think the point again to be made is that he's gone from not being able to survive in a normal school environment to possibly surviving in what's really a special environment for someone who's not surviving in the regular school system.”

266 Both experts gave evidence relevant to Cameron’s loss of earning capacity, and the need for future care. Their joint report said this: (Exhibit C: p 4)

“It was agreed that Cameron’s care requirements are minimal if any in that he is able to take care of his physical needs, but his lack of personal skills will be a significant handicap in terms of employment and his prospects in that area will remain poor. Similarly difficulties in interpersonal relationships will hamper him in terms of social and interpersonal progress.”

267 Counsel for the defendants asked the following question, referring to Cameron’s expressed interest in working with animals: (T 242)

“ POLIN: And I think he has obviously spent a lot of time down at the Currumbin Wildlife Sanctuary and I think he has indicated that between 16 and 18, I can't remember exactly what he said, but it is either he could work part-time or do voluntary work, but after 18 he could apply for work there at the sanctuary. I take it you'd accept that that would be the kind of work you think he'd be able to do?

I think the problems with Cameron are whether his personality disturbance is going to get in the way of him surviving.

I am sure he may have the capacity to do the task, but whether he has the capacity to survive interpersonally in a work environment, that is a different issue.

268 The examination continued: (T 243)

“ POLIN: ... Dr Quadrio, in terms of jobs, is it the case, I mean I can think of plenty of jobs where with the problems he's got they'd be terrible, but this is a job working with animals, it seems to me it's probably one of the better jobs in terms of a job that he should be looking at doing, would that be a fair -

QUADRIO: Well, his work with the animals may be fine, but he'll always be in a context where he has human colleagues.

POLIN: I suppose what I am getting at is a position where there is less human contact is the better position for him to be looking at?

269 The experts were agreed upon the prognosis. Their joint report said this: (Exhibit C: p 5)

unless his situation can be turned around in the near future the long term prognosis for Cameron is quite poor.

(emphasis added)

Award for non economic loss.

270 What amount should be awarded under s 16 of the Act for General Damages? What is the appropriate percentage of the most extreme case (s 16(3))? The plaintiff, in submissions, suggested 55% of the most extreme case. The defendants, whilst acknowledging that it was a “serious injury” (DS: para [55]) and a “nasty injury” (DS: para [81]), suggested that the Court would not be satisfied that the plaintiff had suffered organic brain damage and 30% of the most extreme case was appropriate (DS: para [103]).

271 Unquestionably, Cameron suffered a significant head injury (cf Dr McMaster: report 17.12.04) (supra para [144]). His skull was fractured and his nose dislocated. It is also clear that his brain was injured, as revealed by abnormal scans during the period 23 April 2004 (supra para [130]) and 28 November 2004 (supra para [132]). The only issue is whether that injury caused permanent damage, contributing to Cameron’s disablement. I believe it did. I take that view for a number of reasons.

272 First, I accept that before the accident Cameron was a normal, happy child. He was doing well at school and, like his siblings, was full of promise. I reject the suggestion that he came from a family that was dysfunctional (supra para [127]).

273 Secondly, the impact upon Cameron of his injuries was immediate and profound. His personality changed. He became aggressive. He suffered from mood swings. He could not concentrate. He was angry and disruptive. He lost friends and became reclusive, spending many hours at home at his computer (supra para [170]). He was also acutely aware of these changes and bewildered by them (supra para [171]). Although ten years old, he felt that life was not worth living and threatened suicide (supra para [171]).

274 Thirdly, his symptoms have persisted for more than five years, apart from his depression which has fluctuated. The evidence does not suggest that the change in the scan in January 2005 was accompanied by an improvement in these symptoms. Indeed, Cameron’s symptoms became worse as he made the transition from the structured environment of primary school to the more demanding environment of high school. The worsening of symptoms may, in part, have been the product of fear and psychological factors described by Dr Roberts (supra para [218]). However, they were also consistent with frontal lobe damage which, on the evidence, I believe was also present. The manifestation of such damage was difficulty with executive function, that is, the capacity to plan, organise and follow through (supra paras [216]/[217]).

275 Fourthly, I found Associate Professor Reid a most persuasive witness. I accept as plausible and probable his explanation of a contra coup injury (supra para [195]). I find unpersuasive Dr Roberts’ view that Cameron’s complaints were most likely psychological in origin (supra para [200]). It seems to me that, on any view, at least during the period when the scans were abnormal, part of the explanation for Cameron’s symptoms must include an organic component. The scans remained abnormal for a period of at least seven months. Dr Roberts said that, had there been organic damage, she would have expected an impact “across the board” whereas, on the information she had, she believed that Cameron had coped well at first, including at school (supra para [201]). Whilst one can understand that view on the material provided to Dr Roberts, I believe that the impact was immediate and “across the board”, including at school. The reaction at school was not as pronounced at first because it was a structured environment.

276 Fifthly, I was also greatly impressed by Associate Professor Quadrio and prefer her evidence to that of Dr Lee. Associate Professor Quadrio supported a diagnosis of frontal lobe damage, with psychological factors making their contribution (PTSD and adjustment disorder). For the reasons given by Associate Professor Quadrio, I found Dr Lee’s opinion concerning secondary gain unpersuasive.

277 Finally, I accept the evidence of Dr Stephen Buckley that there was brain injury (supra para [168]). I prefer his evidence to that of Dr Mellick, who saw no evidence suggesting that Cameron’s persisting symptoms were caused by organic brain damage. Having expressed that view in his initial report, Dr Mellick asked to be supplied with all previous scans. However, the material provided did not include the MRI of 28 November 2004, which was abnormal. Dr Mellick, therefore, was left with the impression that there had been an abnormal CT scan on the day of the accident (23.4.04), a normal CT scan two weeks later on 4 May 2004 (supra para [131]), and a normal MRI scan on 12 January 2005 (supra para [134]). The picture he had was thus very different from the picture which emerged from the evidence, which included an abnormal MRI seven months after the accident on 28 November 2004 (supra para [132]). Associate Professor Quadrio said this, referring to the MRI of November 2004: (T 222)

That doesn’t mean to say that the physiological function of the brain will go back to normal

278 The symptoms manifested by Cameron have now been present for more than five years. These were crucial years in his development. Although some of his fears may abate with maturity, the broad picture is unlikely to change. I repeat the opinion of Associate Professor Quadrio concerning the prognosis, which is plausible and which I accept: (supra para [261]) (T 232)

I think in terms of his prognosis the prognosis is poor

279 Associate Professor Quadrio and Dr Lee, in their joint report, stated that the impact of this accident upon Cameron and his life has been very serious. I accept that view. It is the more serious because Cameron is acutely aware of his limitations and what he has lost. His disabilities are likely to interfere with many aspects of his life, including employment and relationships. He is still, obviously, a very young man. He will be especially vulnerable as he passes through adolescence and early adulthood (supra para [223]). Although he has real strengths, including an intellect which is largely intact, his loss has been very significant. I believe that loss should be regarded as 50% of the most extreme case ($225,000).

Economic loss.

280 In view of the plaintiff’s age at the time of the accident, no claim is made for past economic loss.

281 What, then, of the future? Section 13 of the Civil Liability Act 2002 is in these terms:

13 Future economic loss—claimant’s prospects and adjustments

(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.”

282 What would Cameron have been likely to earn had he not been injured? Cameron, even at the present time, presents as a personable, articulate and intelligent young man. I accept (and repeat) the following opinion expressed by Associate Professor Quadrio: (supra para [262]) (T 234)

he has moved down from the first division to the third division. He was obviously a boy who was well capable of tertiary level education and he has now had to drop out of high school

283 I accept that Cameron would certainly have obtained the Higher School Certificate. I also believe it very likely that he would have obtained tertiary qualifications. The plaintiff, in supplementary submissions, drew attention to the average earnings of an adult male, working fulltime in Queensland, in the period after 1 September 2008 (cf Evidence Act 1995, s 159). The Bureau of Statistics suggests that such a person would earn $1,260.30 gross per week ($992.64 net). I believe that figure is conservative. The plaintiff may well have earned significantly more than that, especially if he had a tertiary education. Again being conservative, I will assume a figure of $1,000 net per week. In reaching that figure, I have taken into account that there is no certainty that Cameron would have obtained tertiary qualifications.

284 What is the contrast? What is Cameron now likely to earn? His likely future is, in part, bound up with whether he will successfully complete the TAFE course he is undertaking. Cameron was well motivated and optimistic. The course is structured to provide small classes with tuition which is effectively one on one. Associate Professor Reid regarded such an environment as “ideal” (T 354).

285 However, it is by no means certain that Cameron will be successful. The organisational, planning and fatigue issues which made high school so difficult for him will, to a lesser degree, again present challenges to him. Associate Professor Quadrio clearly had real concerns that his optimism and present determination may simply reflect his relief at escaping from school and its pressures (supra para [264]).

286 After the honeymoon period, completing TAFE is also likely to involve some pressure. Mr and Mrs Thomas are dedicated to assisting Cameron. They will, no doubt, do their best to ensure his attendance at TAFE, just as they did at high school. I believe it likely that Cameron will complete his course. Nonetheless, any assessment must recognise that there is a significant risk that he may not; and were he to fail, his future is likely to be even more difficult (cf Associate Professor Reid: supra para [219]). The risk of failure should be reflected in the discount applied to his likely future earnings in his injured state.

287 Assuming Cameron were to successfully complete the TAFE course, he must then find a job. He has voiced an interest in animals, and expressed a desire to work in animal husbandry. The plaintiff attached to its supplementary submissions the Veterinary Practice Employees’ State Award, which suggested that his earnings in that vocation were likely to be about $494.00 net per week (PS: Sup para [14]). The defendants, in their submissions, provided an estimate of about $500 net per week (DS: para [107]), which I adopt.

288 However, it is by no means certain that Cameron will be able to secure and hold a job in his chosen field. First, Associate Professor Reid pointed out that people with frontal lobe damage can readily articulate their wishes and plans, but executing those plans is problematical (supra para [220]). Secondly, Cameron will be especially vulnerable and, one infers, may breakdown, as he “(weathers) adolescence and (enters) adulthood” (Professor Reid: T 355; supra para [223]). Continuity of employment throughout his life, and especially in these early years, is likely to be difficult. Thirdly, even once Cameron has a job, his capacity to relate to his fellow employees is likely to give rise to difficulties, which in turn will make his job less secure. Associate Professor Quadrio and Dr Lee, in their joint report, said this: (Exhibit C: p 4)

“ ... his lack of personal skills will be a significant handicap in terms of employment and his prospects in that area will remain poor. Similarly difficulties in interpersonal relationships will hamper him in terms of social and interpersonal progress.”

289 Associate Professor Quadrio, when cross examined, agreed that unquestionably Cameron had the capacity to do what was required of him in the field of animal husbandry. However, his survival interpersonally in a work environment was a more difficult issue (T 242; supra para [267]).

290 It would be unrealistic, in these circumstances, to assume that (apart from vicissitudes) Cameron is now likely to earn $500 net week in, week out. That figure should be discounted to $400 per week, so that the likely net loss is $600. That amount must be further adjusted because it would take time (perhaps six years) to complete the Higher School Certificate and obtain qualifications. Completing TAFE and being in a position to commence animal husbandry will take perhaps two years. It was said that Cameron had expressed interest in working in a wildlife sanctuary, where the commencement age is 18 years (which would involve a three year deferral). However, the likelihood is he could work somewhere, in some capacity, in the year before that. Hence, comparing his likely wage earning future, had he not been injured, and what is now likely to happen, the loss should be deferred four years. It is also subject to a discount of 15% for vicissitudes. A retirement age of 65 years is assumed (44 years after qualifying). On the 5% table, the plaintiff’s loss is $396,435 (being 944.5 x $600 x .823 x .85).

291 The defendants submitted that it was impossible to calculate any future economic loss based upon a continuing weekly loss (DS: para [108]). Rather, a cushion of $50,000 should be allowed, representing two years net earnings in the employment that Cameron is now likely to pursue.

292 I readily agree that it is difficult with one so young, and with so many variables, to arrive at a figure. Nonetheless, I believe that approaching the matter in the way that I have set out above provides a more realistic assessment of the loss of earning capacity suffered by Cameron, and more closely reflects the methodology contemplated by s 13 (cf Kallouf v Middis [2008] NSWCA 61 (McColl JA and Hall J at para [7])).

Future superannuation.

293 The allowance for the loss of future superannuation should be 9% of the amount awarded for loss of earning capacity, namely $35,679 (s 15C(2) of the Act).

Out of pocket expenses.

294 Agreed $5,267.50.

Future out of pocket expenses.

295 Throughout the material tendered various doctors, including those qualified as experts, made suggestions as to the treatment that should be undertaken by Cameron. The plaintiff, in submissions, gathered together such comments as the basis for his claim in respect of future out of pocket expenses. The submission was in these terms: (PS: p 32/33)

“Possibility of septoplasty $3,000.

Possibility of aides to assist in skills-based training if the plaintiff continues with education say 4 years @ $250 per week for 39 week year = $187.50 in 52 year x 4 years @ 5% $35,500.

Brain injury specialist twice annually @ $110 per visit = $4.23 per week x 1034.2 = $4,374.66.

General practitioner four times annually = $4.46 per week x 1034.2 = $4,612.53.

Psychiatric treatment until age 24 years @ $250 per week = $250 x 412.9 = $103,225.

Medication @ $30 per week x 412.5 = $12,375.

Family therapy for 10-12 sessions @ $250 per week = $3,000.

Inpatient admission to Rivendell or Redbank House, travel and family visits say $10,000.

296 The defendants responded that such a submission was unrealistic, when compared to past out of pocket expenses ($5,267) (DS: para [110]). The defendants acknowledged that there was a need for some future treatment. Dr Roberts had recommended 20 sessions of psychological treatment (T 361) and perhaps 10 family sessions, each somewhat longer, addressing issues of family dynamics (T 361). At $180 per hour, that would cost about $7,200. The defendants submitted that, even if one were generous and allowed 100 hours, the cost should not exceed about $18,000 (DS: para [111]). There was no evidence, according to the defendants, that Cameron was likely to undertake any other significant treatment (DS: para [112]).

297 Dealing with these submissions, the past out of pocket expenses are not a reliable guide to future care. Cameron was admitted to a number of hospitals. He has seen many doctors and undertaken many sessions with psychologists. The agreed out of pocket expenses cover part only of that cost ($1,816 for pharmaceutical expenses, $831 for treatment expenses and $2,620.50 for travelling expenses) (DS: para [109]). Presumably, many other items were either paid by Medicare or by private health care.

298 Dealing with the items in the plaintiff’s submissions, there is no certainty that Cameron will require and will undertake the nasal operation that Dr Malouf contemplated he may need (supra para [136]) (cf Dr Carroll: supra para [174]). Half the amount claimed should be allowed ($1,500).

299 The suggestion that Cameron may need “aides to assist in skills-based training”, were he to continue his education, was made by Associate Professor Quadrio in August 2007 (Exhibit A: p 73). Associate Professor Quadrio also later suggested that he may benefit from admission to Rivendell or Redbank House as an inpatient, although he would then require support from his family (some of whom would need to move to Sydney for a time). Both these suggestions were made at a time when Cameron was at school and not coping. He has since left school and is presently undertaking the TAFE course, with a view to pursuing a particular career with animals. The suggestions by Associate Professor Quadrio do not appear to have any real justification in view of the way in which matters have developed.

300 It is reasonable, on the other hand, that Cameron should see a brain injury specialist twice a year, as recommended by Dr Buckley (Exhibit A: p 88/89) ($4,374.66), and a GP four times a year ($4,612.53). It is also reasonable that some allowance should be made for medication. He presently takes medication costing $30 a week, and I infer that he is likely to require medication to at least that level for the rest of his life ($12,375).

301 Cameron has been diagnosed with a number of psychiatric conditions (PTSD, adjustment disorder and, periodically, depression). He has had, in the past, and will require in the future, at least for a time, regular counselling sessions. I believe $20,000 is a reasonable allowance for that form of treatment.

302 Such a regime, however, makes no provision for psychiatric consultation or acute care, should Cameron need it. Cameron is only 15 years old. He suffers from significant disabilities. He has already experienced depression. He has, as mentioned, been diagnosed with a number of psychiatric disorders, quite apart from frontal lobe damage and its attendant difficulties. His future is uncertain and likely to be difficult, especially if he experiences unemployment, which again is likely, at least periodically. He will need to cope with the likely success of his brothers. I believe, in these circumstances, that some reasonable allowance should be made for psychiatric consultation and even acute care in the course of what is likely to be a long life. Fixing upon a sum is difficult. Doing the best I can, I believe that a reasonable allowance is $25,000.

303 The future out of pocket expenses that should be included in the verdict therefore are as follows:

Possibility of septoplasty	$1,500.00
Brain injury specialist x 2 per annum	$4,374.66
GP visit x 4 per annum	$4,612.53
Medication for life	$12,375.00
Counselling	$20,000.00
Psychiatric acute care	$25,000.00
Total future out of pocket expenses	$67,862.19

Past care.

304 Mrs Thomas and her husband gave detailed evidence of the impact upon them and the family of Cameron’s accident and his disabilities. The absence of executive function meant that Cameron had to be assisted in many aspects of his life, where organisation and planning was required. There was, each morning, a time consuming struggle to mobilise Cameron to get him to school. To a lesser degree there was the same struggle each night. Cameron could be aggressive, even violent, such that supervision of the younger children was required, as well as mediation concerning the many disputes which inevitably erupted. Cameron resisted going to school by bus for various reasons, including the noise. He often required transport home, either because he was unwell or in trouble. His parents took him to various medical appointments and waited. Mrs Thomas ultimately reduced her work hours to nine days per fortnight, in order to accomplish the many additional tasks that had to be undertaken to cope with Cameron’s disabilities (T 198).

305 Mr and Mrs Thomas identified each such task and estimated the average time taken each week in respect of it (Mr Thomas: T 174/175; Mrs Thomas: T 195-200). The plaintiff, in submissions, tallied these estimates, suggesting that past gratuitous care entailed 23.15 hours per week. On that basis they sought an allowance of 20 hours per week at $21 per hour for 256 weeks ($107,520).

306 The defendants acknowledged that the task of assessing past care was “extremely difficult” in view of the provisions of s 15(2) and (3) of the Act. It was submitted that, based upon the out of pocket expenses, the only legitimate claim was for the travel time expended in taking Cameron to his various appointments. They calculated that time at $1,890, which they suggested should be incorporated in the award, together with a “cushion” of “say $15,000” (DS: para [114]).

307 Inevitably, any assessment of past care must be broad brush. I do not doubt that the parents of Cameron have spent a very considerable time performing each of the tasks described, made necessary by his disabilities. Rather more time may have been required when Cameron went to high school, when the journey to school was longer and the demands upon him greater. However, it is reasonable to allow 8 hours per week, from the date of the accident to date, at $21 an hour, a total of $45,360.

Future care.

308 The plaintiff submitted that, on the evidence, Cameron is at risk of harming himself and others (PS: p 36, para [103]). It was said that he needed ongoing assistance, since his inability to plan and organise himself is likely to remain. Further, assistance with his financial affairs is desirable, including teaching him about things such as paying bills (Associate Professor Reid: T 358). There was no specific evidence as to what was required in the future. The plaintiff suggested a reasonable allowance would be 10.5 hours per week, at $21 per hour (PS: p 36, para [106]). The allowance for future care should therefore be $244,353.

309 The defendants submitted that the plaintiff had not established that Cameron required the statutory minimum of 6 hours per week in respect of future care (DS: para [115]). The defendants drew attention to the statement jointly made by Associate Professor Quadrio and Dr Lee in their report, when they said this: (Exhibit C: para [6])

“It was agreed that Cameron’s care requirements are minimal, if any, in that he is able to take care of his physical needs ... ”

310 Dealing with these submissions, I believe that the joint report of Associate Professor Quadrio and Dr Lee was referring to Cameron’s ability to live independently, which requires mobility, the ability to wash and cook and so on. The experts believed that he will be able to do that. However, I think it also likely that he will require some assistance of the type now provided by his parents, at least until he is more mature and established (say, to the age of 22 years). Until that time he is vulnerable, for the reasons given by Associate Professor Reid. I believe it is reasonable to allow 8 hours per week until the age of 22 years (25.1.2016); total $57,792.

311 After that, I believe it also reasonable to provide a small cushion (by way of domestic assistance) against future difficulties since it is predictable, I believe, that Cameron will require assistance from time to time as he weathers crises in his life and especially his early life. An allowance of $20,000 should be included. The amount for future care should therefore be $77,792.

Funds management.

312 Being an infant’s claim, I should deal separately with the issue of funds management. Associate Professor Reid adverted to the issue and the plaintiff suggested, without elaboration, that provision should be made for it. In Nominal Defendant v Gardikiotis (1995) 186 CLR 49, Gummow J (at [67]) cited with approval the following passage from the judgment of King CJ in Campbell v Nangle (1985) 40 SASR 161: (at 192)

the same is true, in

my opinion, where the plaintiff’s incapacity to manage his affairs does not result from the wrong but is antecedent to it, being the result of legal disability or some other cause.

313 Since the plaintiff is under a disability, the damages awarded must be managed pursuant to the Civil Procedure Act 2005, at least until the plaintiff reaches his majority. It is appropriate for the award to include that cost, with provision to apply to the Court for further directions once Cameron reaches the age of 18 years (Ren v Mukerjee [1996] ACTSC 119; Pellow v NRMA and Anor [2004] NSWSC 152). I have no evidence concerning his aspect. Leave will be given to each party to make submissions in relation to it.

314 The plaintiff’s verdict (subject to the slip rule) should therefore include the following:

General Damages	$225,000
Past economic loss	nil
Future economic loss	$396,435
Future superannuation	$35,679
Out of pocket expenses	$5,268
Future out of pocket expenses	$67,862
Past care	$45,360
Future care	$77,792
Total	$853,396

Orders.

315 I therefore make the following orders:

1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below.

2. The defendants should pay the plaintiff’s costs.

*****

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Citations

Thomas v Shaw [2009] NSWSC 510

Most Recent Citation

Thomas v Shaw [No 3] [2009] NSWSC 1419

Cases Citing This Decision

2

Shaw v Thomas [2010] NSWCA 169

Thomas v Shaw [No 3] [2009] NSWSC 1419

Cases Cited

8

Statutory Material Cited

4

Doubleday v Kelly [2005] NSWCA 151

Port Stephens Council v Theodorakakis [2006] NSWCA 70

MD v Sydney South West Area Health Service [2009] NSWDC 22

CITATION:	Thomas v Shaw [2009] NSWSC 510
HEARING DATE(S):	16/2/09 - 20/2/09 30/3/09
JUDGMENT DATE :	26 June 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Kirby J
DECISION:	1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below. 2. The defendants should pay the plaintiff’s costs. 3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest.
CATCHWORDS:	CIVIL LAW - NEGLIGENCE - child aged 10 on sleep over - fall from bunk bed - no guardrail or ladder - mandatory Australian Standard requiring guardrail and ladder - Civil Liability Act 2002 - accident foreseeable and preventable - causation established - DAMAGES - personal injury - issue whether child suffering from organic brain damage or psychiatric illness - significant injury - 50% of worst case - drop out of school - loss of earning capacity - other losses.
LEGISLATION CITED:	Civil Liability Act 2002 Evidence Act 1995 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Doubleday v Kelly [2005] NSWCA 151 Port Stephens Council v Theodorakakis [2006] NSWCA 70 MD v Sydney South West Area Health Service [2009] NSWDC 22 Kallouf v Middis [2008] NSWCA 61 Nominal Defendant v Gardikiotis (1995) 186 CLR 49 Campbell v Nangle (1985) 40 SASR 161 Ren v Mukerjee [1996] ACTSC 119 Pellow v NRMA & Anor [2004] NSWSC 152
PARTIES:	Cameron Brock Thomas (by his tutor Doreen Thomas) (Pl) William Richard Shaw (1st Def) Susan Joyce Shaw (2nd Def)
FILE NUMBER(S):	SC 2008/20166
COUNSEL:	R Royle (Pl) N Polin (Defs)
SOLICITORS:	Slater & Gordon (Pl) Moray & Agnew (Defs)