Thompson v Cross
[2014] NSWDC 8
•13 March 2014
District Court
New South Wales
Medium Neutral Citation: Thompson v Cross [2014] NSWDC 8 Hearing dates: 12/03/2014 Decision date: 13 March 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the plaintiff for $92,909.10
Catchwords: Occupiers liability, negligence of grandmother Legislation Cited: Civil Liability Act 2002 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Hahn v Conley (1971) 126 CLR 276Category: Principal judgment Parties: Kobie Thompson (Plaintiff)
Joan Cross (Defendant)Representation: R Harrington (Plaintiff)
S Torrington (Defendant)
Lee Sames Egan (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2012/185298 Publication restriction: No
Judgment
The plaintiff is now 30 years of age. The defendant is her paternal grandmother. When the plaintiff was 20 months old she was at her grandmother's home in Kanwal, just north of Wyong. She put her arms in the air. In doing so she pulled the cord running from a power point to a kettle. The kettle tipped over. There was very hot water in the kettle. The water poured over the plaintiff's right side. She suffered burns over her right nipple, her abdomen her leg and her foot.
The plaintiff has sued her grandmother. She says her injuries were caused by her grandmother's negligence as occupier of the premises. The defendant has denied liability and has challenged the version of events said to have led up to the plaintiff's injury.
There is no dispute that the kettle fell over and the hot water poured over the plaintiff. The defendant however says she was not at fault, rather it was the plaintiff's mother who was to blame.
Despite the accident having occurred in 1985, the parties agreed that the action is governed by the Civil Liability Act 2002 (the CLA). This is because the action was started after the commencement of the Act. The plaintiff has claimed damages for non-economic loss, medical expenses, future economic loss and future care.
The plaintiff, naturally, has no memory of the incident. She does however have a general recollection of being burnt. She said that as a child she was aware of looking different. She was embarrassed at sleepovers. She said that during puberty the burns were not of much significance however it has been as an adult that she has had the most problems.
The plaintiff is a single mother with three children. She said that her inability to breastfeed her children, due to a deformed right nipple, caused her a great deal of upset. She felt that her capacity as a mother had been unfairly judged and she had been deprived of the ability to breastfeed her children.
The plaintiff said that she was now embarrassed by her scarring and concerned that her appearance would hamper her prospects of finding a new partner. She said that she was paranoid of skin cancer. She felt itchy around the scars when they had been exposed to the sun. There was otherwise no pain.
The plaintiff said that she would have suggested surgery as soon as possible (to her left breast) to improve the symmetry of her breasts. She was cross-examined about having the procedure. It was put to her that she might reconsider if there was to be scarring to the left breast caused by the operation. She said that further scarring would be taken into account but she was primarily concerned to have an improvement from her present position. I felt it likely that, having funds available, she would proceed with surgery.
The plaintiff's parents separated in 1986. The plaintiff remained with her mother, Mrs Theresa Jones. She has had little to do with her father, Raymon Thompson, although in recent years there has been some contact. She speaks to him on the telephone from time to time. She saw him at his last birthday because it was thought that, due to illness, it might be his last birthday.
Although there was little challenge to her evidence I was impressed with the plaintiff as an honest witness. This was exemplified by her acknowledgement that depression she has suffered was due to the relationship with the father of her children and was not related to her scarring.
The plaintiff's mother gave evidence. She was born in 1959. She was married to Raymon Thompson. They separated in 1986. They had four children, Michael born in 1979, Robert born in 1981, Christie born in 1982 and Kobie, the plaintiff, born in 1984.
At the time of the accident she said the family was living in the Coffs Harbour area. Her husband's parents were living at Kanwal. They had recently moved into the house. 15 October 1985 was the first time that she and her family visited the house.
She said that they arrived around midday. Sometime later the defendant was preparing dinner for the family. There were two tables in the kitchen, one a large table for adults, and the second a children's table with four chairs. She marked the position of these tables on Exhibit B.
She also marked the location of the power point to which the kettle was attached. The kettle was near the sink and close to the edge of the bench top.
Mrs Jones said that her husband and his father, Bruce, were in the lounge watching television. The defendant was preparing dinner. The three older children were seated at the children's table. Mrs Jones "gathered up" the plaintiff and shepherded her towards the remaining chair.
The plaintiff raised her arms and caught the cord attached to the kettle. The kettle tipped over pouring water onto the plaintiff. She was immediately taken to the bathroom and bathed in cold water. She was then taken to Wyong Hospital. The notes from the hospital indicate she arrived at 5:30pm (Exhibit A).
Mrs Jones denied the following propositions that were put to her:
(a) That she had been to the Kanwal house on a number of previous occasions.
(b) That the kettle was normally in a different position and she had moved it to the position it was in when the accident occurred.
(c) That her husband and her mother-in-law had travelled to Royal Prince Alfred Hospital that day to fetch Mr Cross.
(d) That immediately before the accident her husband and the defendant had been assisting Mr Cross to go to bed.
(e) That there was no children's table in the kitchen.
Because of the nature of the cross examination, namely the putting of a completely different version, I paid particular attention to Mrs Jones's evidence in order to assist me in determining her credibility. I gave the same attention to the evidence of the defendant who provided the different version.
Both witnesses were obviously hampered by the length of time that has passed since the accident occurred. The separation of Mrs Jones from her husband also suggested some inter-family tensions.
The defendant gave evidence. She is now 83 years of age. She asserted the accuracy of her recollection but also accepted her memory was "hazy". At one point she said it was "ridiculous" that she was being called upon to remember events that occurred 28 years ago.
The defendant was adamant that the plaintiff's family were then living in "Springwood" and visiting frequently, about once a week. In fact she was referring to Springfield, which is close to Gosford. She accepted that they would not have done so if they were living in the Coffs Harbour area at the time. I think it clear from the medical material in Exhibit A that the family was then living in Coffs Harbour. The defendant was mistaken.
The defendant said that her son and his family came over at about 6am on the day of the incident. She and her son then left for Sydney, returning with her husband at about 6pm. She gave no explanation why the whole family would have arrived at 6am and, as already mentioned, the hospital notes indicate that the plaintiff arrived at the hospital at about 5:30pm.
The defendant said there was no children's table in the kitchen. She said a children's table was only purchased some two years later and placed on the deck following renovations. This seems inconsistent with the family break-up in 1986.
The defendant said the kettle was not normally in the position where it was when the accident occurred. She said she did not move it and suggested it must have been Mrs Jones. No reason was given as to why this might have occurred.
The defendant said that she was coming into the room when she noticed the plaintiff grabbing the cord. She rushed about 4 metres and managed to stop the kettle when it was at about 45° angle. This seems a quite incredible feat.
As I have said above, I paid particular attention to the demeanour of the witnesses. I could not conclude that the defendant was obviously dishonest. I am however satisfied that she is mistaken in her recollection, perhaps because of the time that has passed and perhaps, subconsciously, because of the history of the family that has elapsed since the incident. At the same time I formed a very favourable impression of Mrs Jones. I thought she was forthright in her evidence, doing her best to give an accurate recollection of the events which no doubt would have stuck in her mind, having seen her daughter badly injured.
I prefer the evidence of Mrs Jones and accept her version in preference to that of the defendant. It follows that I accept that the kettle was not placed in its final position by Mrs Jones and that she had not been aware of its position previously. I also accept that this was the first visit of the family to the house and that the presence and placement of the tables and kettle was as described by Mrs Jones.
It is necessary to say something about Exhibit 2, which contains two statements from Mr Raymon Thompson, the plaintiff's father. First of all I accept that due to a terminal illness Mr Thompson could not attend court. The first thing I note about the statement is that Mr Thompson is under the same misapprehension about where his family lived at the relevant time. The move to Springfield occurred later. Mr Thompson says that he and his mother went to pick up Mr Cross, but as with Mrs Cross, gives no explanation as to why the rest of the family would have, from about 6am, come to the house in Kanwal.
Another inconsistency with his mother's evidence is that Mr Thompson states that both he and his mother were in the bedroom when he heard a scream coming from the kitchen. According to Mrs Cross she was coming into the kitchen and saw the kettle tipping over.
Mr Thompson provides no explanation as to why the position of the kettle might have been moved by his former wife. He also does not have the other three children in the kitchen when the accident happened, unlike Mrs Jones who said they were seated at the small table. Although his sketch does not include the small table, Mr Thompson does not say anything about it in his statements, in particular he does not corroborate his mother's evidence about when it was purchased.
There is also a tenor in the statements of Mr Thompson protecting his mother from criticism and attributing blame to his ex-wife.
I do accept that in very broad terms Mr Thompson's statements support his mother's version more than that of his ex-wife. However, I am mindful that he has not been cross-examined and that there are some clear mistakes in the statements, the most obvious example being that the family was then living in Springfield.
The contents of Mr Thompson's statements do not cause me to doubt my acceptance of the evidence given by Mrs Jones.
Liability
There was no dispute that the defendant was the occupier of the premises. It was submitted however that the defendant did not owe a duty of care to the plaintiff because she was the plaintiff's grandmother. A causation point was also taken, namely that the chain had been broken by the supervision of Mrs Jones over the plaintiff.
The general duty of an occupier was described by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned". Even though I think this formulation is consistent with Section 5B of the CLA it is necessary to specifically address the requirements of that section.
Before doing so, however, I will address the point arising from Hahn v Conley (1971) 126 CLR 276 taken by the defendant. In my view the principles stated in this case do not assist the defendant. The allegations here do not depend on the relationship of the plaintiff to her grandmother. Rather it is the circumstances that were created by the grandmother, independent of her status as such, which give rise to the liability.
On my findings it was the defendant who located the kettle and the children's table in their respective positions. It was also the defendant that had boiled the water. Although the latter point was not specifically put to the defendant I think it arises by inference from my acceptance of Mrs Jones' evidence that she had not been aware of the kettle and that the defendant was preparing the evening meal.
Turning then to Section 5B, I am satisfied that the risk was foreseeable. I think it overwhelmingly plain that the placing of a child's table alongside a kettle situated near the edge of a bench top and with a cord hanging down gave rise to a foreseeable risk. Having regard to the use of a kettle to create very hot water I am also satisfied that this risk was not insignificant. I think it equally plain that a reasonable person in the position of an occupier, knowing that children as young as 20 months of age would be in the area, and having regard to what one might expect of the level of personal safety capable of being exercised by such a young child, that precautions would have been taken.
In respect of Section 5B(2) I have had regard to the probability that if the kettle was left in an unsafe position that harm would occur, and that that harm could be serious. The burden of taking precautions would have been very light. The kettle could simply have been located in a safer place. I do not think that Section 5B(2)(d) is relevant.
In relation to causation, I do not accept the defendant's submission that the chain of causation was broken by the supervision of the mother. Firstly it was the defendant that was cooking the meal and had placed the kettle and caused the water to boil. The fact that the mother had a general supervisory role of her children did not in any way interfere in the link between the negligence of the defendant and the scalding of the child.
Damages
The plaintiff submitted that non-economic loss should be assessed at 30% of a most extreme case. The defendant suggested 18%.
I was not shown the scarring nor any photographs of it. While the scarring to the breast may well have been embarrassing, I could have been shown the other scarring as well as photographs taken both recently and over the years since the accident. I was asked to rely on the descriptions given of the scarring in the medical material.
Exhibit A is the plaintiff's medical evidence. The notes from Gosford District Hospital include a useful diagram showing the areas of scarring. The burns were initially diagnosed as being of partial thickness. I note the plaintiff was not admitted to hospital but discharged about three hours after arrival. She then required a period of continuing changes of dressing and cleaning of the wounds, all of which would no doubt have been particularly painful for her.
On 6 February 1986 Dr Coats, a general practitioner, described the areas of burns in a letter to the plaintiff's father. He said there was keloid scarring around the right nipple. There was an area of burns measuring about 10cm by 6cm below the "shorts line on the anterior aspect of the thigh". There was another area of scarring on the right arm "both above and below the elbow, with again two small areas of keloid scarring". There was also some "minor depigmentation" on the left foot. He envisaged further surgery some time in the future.
Dr Blackman, also a general practitioner, gave a detailed description in his letter of 25 February 1987. He said "the areas noted above are not causing Kobie any problems now. In future years, cosmetic surgery may be necessary". The general practitioner's notes indicate a number of visits in relation to the care and dressing of the burns.
The plaintiff's most recent medical report is from Professor Maitz, a specialist in burn injuries and reconstructive surgery. He was asked to give a description "for a lay person, of the scarring and its effects on the person's body". He said:
"A scald burn leads to tissue damage by coagulating protein of the tissue and with that cell death. Depending on the temperature of the liquid and time this hot liquid is in contact with the skin differing depth of burns are diagnosed: a superficial burn is a burn limited to the outer layer of the skin (Epidermis) and is comparable to a sun burn. A partial thickness burn reaches into the second deeper layer (Dermis) and may require surgical treatment to heal. A full thickness burn reaches into the fat underneath the dermis and will require surgical treatment (skin grafting) to heal.
Superficial and superficial partial thickness burns (as sustained by Mrs. Thompson) are the most painful as nerve endings are exposed, but will generally heal with little or no scarring with accurate treatment."
Professor Maitz also gave a detailed description of the scarring. It is on page 17 of Exhibit A. Of most significance is his description of the right breast. He said:
"On her right breast is some visible and palpable scarring of her right nipple and areola (the area around the nipple), this is raised, depigmented and has lead to a slight contracture of the area, the shape of the breast is not affected, but the right breast sits slightly higher than her left breast (which has sagged in a normal manner following breast feeding and aging). In addition some areas of her areola around the right nipple have lost the normal pink color [sic] and appear as a scar."
In relation to the other areas he generally described them as depigmentation. He went on: "All areas of depigmentation are whilst visible to the bare eye to be judged as slight color [sic] changes".
In respect of the plaintiff's right breast he suggested a "mastopexy (surgical lifting of the naturally sagged left breast)" to adjust the asymmetry between the two breasts. He said that this procedure would cost $10,000 and have a recovery period of six weeks.
Professor Maitz seems to have had a history of depression arising from the burns but, as already noted, the plaintiff did not make this allegation.
The defendant tendered two reports from Dr Giles, a plastic surgeon (Exhibit 1). Dr Giles said that the "scars have settled very well and most are not obvious, the exceptions being the scar on her right upper arm and the altered appearance of her right nipple". He describes the damage to the nipple as serious. He says that "the scarring within it (the nipple) has prevented her breastfeeding, a problem which I believe cannot be corrected by surgery".
In his second report, Dr Giles addresses the report from Professor Maitz. In particular he disagrees with the suggestion of surgery to the left breast. He points out that the suggested procedure is not small and is being used to correct "a minor degree of asymmetry". He points out that there would be some scarring on the left nipple and possibly a change of shape that "would be more disfiguring than the very minor degree of asymmetry which is now present".
The plaintiff expressed a desire to have the surgery as soon as possible, especially I thought, having regard to her status as a single woman and her desire to find a new partner. Professor Maitz was not required for cross-examination and I am satisfied that the combination of his opinion together with the plaintiff's desire to correct the asymmetry make the claim for future surgery reasonable.
Returning then to the assessment of non-economic loss, I have taken into account the significant pain that the plaintiff must have endured after the accident but at the same time the relatively small amounts of pain that have accompanied the scarring. I think the scarring to the right breast is significant and has had a large effect on the plaintiff's life and, notably, the early upbringing of her children. I think the areas of depigmentation have also had an effect especially as sources of embarrassment to the plaintiff.
The effects of the injury are permanent. The deformed right nipple is obviously influencing the plaintiff's perception of her capacity to form a new relationship. The inability to breastfeed may well be relevant in the future if the plaintiff has more children.
I think 28% of a most extreme case is appropriate. Pursuant to Section 16 of the CLA this percentage equates to $77,000.
Past out of pocket expenses have been claimed in the sum of $2,809.10 (Exhibit E). The only item of contention was the past use of water brassieres. There is no medical support for the claim but the plaintiff gave evidence of the reasons why she used the brassieres which seemed to me to be both reasonable and caused by the defendant's negligence.
The claim is for 3 brassieres a year for 15 years at a cost of $60 each. The plaintiff would, however, presumably have purchased "normal" brassieres. She said these might cost about $20 each. I think the claim should be reduced to reflect this difference. Accordingly, instead of allowing $180 per year I will allow $120. Over 15 years the figure is $1,800. The total of past out of pocket expenses is therefore $1,909.10.
The plaintiff's claim for future medical expenses is $14,255.38 (Exhibit F). The bulk of this amount is made up of the cost of the future surgery of $10,000. I have already said that I think this surgery is a reasonable expense and I will allow that amount. The balance of the claim is for review by a general practitioner annually for the balance of the plaintiff's life. There is no medical evidence to support this claim, although I would accept that following the surgery the plaintiff might require one or two visits to a doctor to check on the ongoing condition of her breast. I allow $200. The total of future medical expenses is therefore $10,200.
Future economic loss is claimed for 10 weeks during the period when the plaintiff has surgery and then recovers. The rate is based on the plaintiff's tax returns (Exhibit D) but only for two days a week. The rate of $475 per week was agreed, although this was subject to the defendant's position that the surgery was not necessary. Having regard to my allowing for the surgery I think it reasonable to allow for eight weeks at $475 per week in future economic loss. This is $3,800.
Because the plaintiff said she would have the surgery as soon as possible I do not think the figure needs to be discounted. However, for purposes of Section 13 of the CLA I am satisfied that the plaintiff will be working for two days per week over the next year and that she would be subject to the normal vicissitudes in her general future working life. However, as already stated, because the surgery will occur shortly I do not think it appropriate for there to be any reduction from the allowed amount.
The final amount claimed is for care following the surgery and period of recovery. This was originally described as a claim for the cost of looking after the plaintiff's children. However, it is clear from Section 15B of the CLA that, even though the claim is not for gratuitous care, it is still subject to a minimum period of six months. The claim therefore could not be pressed.
The claim was then adjusted to be a claim for care of the plaintiff on a commercial basis. I can certainly imagine that the plaintiff might need some care immediately following surgery but there is no evidence as to what that might be or its duration. I am not satisfied that any claim has been established.
The damages that I have allowed are as follows:
Non-economic loss
$77,000.00
Past medical expenses
$1,909.10
Future medical expenses
$10,200.00
Future economic loss
$3,800.00
Total
$92,909.10
I make the following orders:
(1) Judgment for the plaintiff in the sum of $92,909.10.
(2) The defendant is to pay the plaintiff's costs of the proceedings.
(3) The exhibits may be returned.
I will hear the parties on any special costs orders that are sought.
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Decision last updated: 13 March 2014
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