Todd Scott Lemmon v Australian Capital Territory
[2008] ACTSC 70
•15 July 2008
TODD SCOTT LEMMON v AUSTRALIAN CAPITAL TERRITORY
[2008] ACTSC 70 (15 July 2008)
EX TEMPORE JUDGMENT
NEGLIGENCE – personal injury – liability of public authority for damaged playground equipment – system of regular inspection – compliance with Australian standard – frequency of inspections – plaintiff schoolboy aged 14 – contributory negligence
DAMAGES – personal injury – facial injuries – fracture of nasal bone – no issue of principle
Civil Law (Wrongs) Act 2002, Ch 4
Wyong Shire Council v Shirt (1980) 146 CLR 40
Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241
Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
Kocis v SE Dickens Pty Ltd t/as Coles New World Supermarket [1998] 3 VR 408
Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWSC 291
Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79
No. SC 567 of 2006
Judge: Master Harper
Supreme Court of the ACT
Date: 15 July 2008
IN THE SUPREME COURT OF THE )
) No. SC 567 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:TODD SCOTT LEMMON
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Master Harper
Date: 15 July 2008
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $50,382.70.
The defendant pay the plaintiff’s costs, with costs incurred after 9 July 2008 assessed as between solicitor and client.
This is an action for damages for personal injury brought by a young man who was injured on 4 April 2002. He was then a 14-year-old schoolboy. He is now 20 years old. On the afternoon on which he was injured he went from his home at Ngunnawal a short distance to a park on the northern side of the intersection of Mirrabei Drive and Gundaroo Drive, Amaroo. The park is bounded by Yerrabi Pond and is described on a page from a street directory in evidence as Gungahlin Town Park, although it has been referred to by witnesses as Yerrabi Pond Park.
The park included a skateboard ramp. The plaintiff was accompanied to the park by his younger brother and a young nephew, one of whom had a pushbike and the other a scooter, which they were intending to ride in the skateboard part of the park. After some little time the three made their way to what has been described as a giraffe swing.
This was a substantial metal structure which consisted at its base of what has been described as a small grandstand with six steps, or rows of seating, angled so as to be wider at the base than at the top step, and open at the front but enclosed at both sides by a steel fence. As part of the structure and rising high above it were two steel posts meeting at a point a little forward of the bottom step of the structure. Immediately below the apex was a level area covered by tanbark.
Suspended from the apex was a chain. At the end of the chain and just a little above ground level there was attached a circular rubber seat of the kind used in a Poma ski lift. Immediately above the seat the chain was covered by a section of plastic piping, the apparent purpose of which was to give a person using the chain as a swing something other than the chain to grip for stability. The giraffe swing has been in place in the park since 1998, about four years before the incident involving the plaintiff.
On the day of his injury the plaintiff noticed that the plastic piping had been cut. It appears from photographs in evidence that it had been cut in four places so as to divide the plastic piping into five separate pieces. The plaintiff used the swing in its intended fashion by carrying the seat up the steps to the top step, and then jumping free of the step so that he would swing forward and back, the intention being that ultimately the swing would come to a stop and the person using it could disembark.
The plaintiff’s recollection was that the injury occurred the first time he used the swing on that afternoon. It was put to him in cross-examination that his brother had made a statement some two years after the event, expressing his recollection that the plaintiff had jumped three or four times previously on the day. The plaintiff conceded that that might have been the case, although the statement was not tendered and the younger brother did not give evidence.
It seems to me more probable than not that the plaintiff’s recollection as expressed in the witness box was correct and that it was the first time that afternoon that he had used the swing, although he had used it on many previous occasions.
As he jumped he was holding the grip with his right hand high and his left hand low. The fingers of his left hand became pinched or caught in one of the breaks in the piping. This caused him to let go of the piping with his left hand, which threw him off course. He collided with the metal safety fence to his right, face first, suffering serious facial injuries.
One of the children had a mobile telephone and rang the plaintiff’s mother. She came to the park and took the plaintiff to hospital. The next day she telephoned Canberra Urban Parks and Places, a unit of the ACT Department of Urban Services. Later that day the chain and seat were removed from the frame by officers of the Department.
The plaintiff’s mother followed up with a letter to the Department. She received a reply about two months after the accident from the program manager of Canberra Urban Parks and Places. He said that a meeting had been arranged at the park during the week after the injury with the designer, the contractor responsible for the maintenance of the equipment (which I infer was Totalcare, then a government business enterprise owned by the ACT Government), and representatives of Canberra Urban Parks and Places.
The contractor had confirmed that regular routine visual inspections had been carried out to identify obvious hazards resulting from vandalism and use of the equipment. The contractor reported that users of the equipment regularly cut the plastic piping deliberately to render the lower section of the swing more flexible and better suited to what were described as daredevil manoeuvres. These included attempts to jump over the safety railing at the last moment by bending the flexible section, contrary to the intended use of the equipment.
The program manager said in the letter that a new type of material would be installed shortly and monitored closely over the next few months. The new material was more durable, with minimal flexibility, and less prone to vandalism. In fact, the evidence was that the chain was not put back for about a year. After about two weeks it was removed again, and has not been replaced since.
At the end of 2003 Canberra Urban Parks and Places instructed a private organisation known as the Playground People to carry out a safety and compliance audit of the three giraffe swings in the suburbs of Canberra. The other two were at Gordon and Kambah. The Playground People prepared a report in December 2003 which raised various safety issues at the three giraffe swings. None were specifically related to the plastic piping around the chain.
In their report, the Playground People made reference to Australian Standard 4486.1:1997, section 8.3.2, with respect to comprehensive playground inspection and maintenance. They said that it was questionable whether the standard was being complied with by the existing maintenance regimen. They stated that the standard required that three levels of inspection be carried out, the first being routine visual inspection every day or two to check for obvious hazards and damage from vandalism, the second being operational inspection every one to three months to check for wear, and the third being comprehensive inspection at least every 12 months in the form of a detailed safety assessment. The standard itself is not in evidence, but I accept that the summary of it contained in the Playground People report accurately sets out those aspects of it.
Also in evidence was an email to an officer within Canberra Urban Parks and Places from Barbara Champion of the Playgrounds and Recreation Association of Victoria based in Melbourne. Ms Champion had been provided with a copy of the Playground People report. She said that she would never think that the giraffe swing was a good idea in a non-supervised environment. It might be appropriate in a camp situation where older children were supervised in their use of it. She referred to the “significant risk” that the user might “smack into any one of the supporting structures”.
Evidence was given by Mr Adam Dezman who was in 2002 employed by the ACT Government to inspect the equipment at the parks in an area which he described as the northside area. It appears that from documents in evidence that this included the Gungahlin and Belconnen regions. Mr Dezman’s evidence was that there were about 125 parks in the area for which he was responsible. His job was to inspect each of those parks every week. He worked on Monday to Friday, inspecting about 25 parks a day in the same order each week.
His routine included inspecting the Yerrabi Ponds Park at Gungahlin every Friday. He would carry out an inspection of the equipment to make sure that it was safe to be used. He inspected this park on Fridays because it was the only park in his area with adventure equipment including the giraffe swing. The other parks on his list were conventional parks with traditional play equipment.
He said that it was very common to find that the plastic piping around the chain on the giraffe swing at Yerrabi Ponds had been vandalised. When he found that that had happened he would generally repair it on the spot. His instructions were that if this was impossible he was to render the equipment unusable, which I take it would have involved removal of the chain.
His usual response when he found the chain had been cut was to remove the seat by unscrewing a bolt under it, sliding the broken pieces of piping off the chain and replacing them with a new piece of piping, after which he would bolt the seat back into place. There were two or three forms of piping in use. Under directions from Canberra Urban Parks and Places, he would try different forms of piping at different times.
His evidence was that he found the piping to have been damaged and needing replacement at least twice a month. That would be at least every second Friday. In addition, from time to time he would receive an instruction which he took to have been triggered by a telephone call from a member of the public, to go to Yerrabi Park to replace the damaged piping earlier in the week. This would happen about once a month. He carried in his vehicle a number of spare pieces of piping.
The plaintiff’s claim is against the Australian Capital Territory as occupier of the park, and is a claim in negligence. I granted leave during the hearing yesterday to the plaintiff to file a further amended statement of claim amending the particulars of negligence. As the case has been run, the negligence asserted comprises a failure to inspect the equipment sufficiently frequently.
The legal position is now relatively clear. The court is required to apply what has been called the calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40: that is, to consider what should be the response of a reasonable person in the position of the defendant once a risk of injury has been identified.
It is not suggested by Counsel for either party that the applicable principles have been altered by any of the provisions of Chapter 4 (negligence) of the Civil Law (Wrongs) Act 2002.
It is clear from a number of cases that the fact that there was a foreseeable risk of injury, and that someone was later injured, is not enough to entitle the plaintiff to succeed. It may be that a reasonable person in the position of the defendant confronted with that foreseeable risk of injury would have made a quite reasonable decision not to do anything about it, perhaps because of the cost of fixing it, or perhaps because of the perceived low or negligible likelihood of an injury occurring.
The present case is one where there was not merely a risk of injury which now appears foreseeable with the benefit of hindsight, but one which the Territory appreciated at the time was an injury risk. The system of inspection of parks, including this park, was one which had been instituted to guard as far as possible against the risk of injury arising from damaged or vandalised equipment. It is clear that the Territory had knowledge, through its inspector and through the written reports he provided for his superiors, of the regularity of damage and the frequency of inspection.
The Territory through its inspector inspected this park once a week, and in addition to that sent the inspector out if there was a public complaint of damage between the weekly inspections. The Territory was aware that this piece of equipment was vandalised in this way at least once a fortnight, and that at least once a month there would be a report of damage following the last inspection which would require a visit to the park to repair the damage earlier in the week.
The question is whether, considered objectively and putting to one side the benefit of hindsight, that was a proper system of inspection. The courts have held in cases involving slip and fall injuries in supermarkets and shopping centres that an occupier may escape liability by adducing evidence of a system of inspection which is reasonable: Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241; Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21; Kocis v SE Dickens Pty Ltd t/as Coles New World Supermarket [1998] 3 VR 408; Allcorp Cleaning Service Pty Ltd v Fairweather [1998] NSWSC 291; Mercouris v Westfield Shopping Centre Management Company Pty Ltd [2000] NSWCA 79. The courts have acknowledged that not every slip and fall in a supermarket resulting from a spillage is preventable, and that what is required of an occupier is to take care which is reasonable in the circumstances. Those principles, it seems to me, apply equally to injuries in playgrounds, and in particular adventure playgrounds using equipment such as a giraffe swing.
I recognise that the Territory does not have limitless funds or numbers of employees. However, it is clear from the evidence that on every weekday Mr Dezman was in the northside (Belconnen and Gungahlin) area, and that he had time, when he was asked to do it, to depart from his normal order of inspections and go to the park at Yerrabi Ponds to replace broken plastic piping. I am satisfied that it was open to and would not have been too demanding for the Territory to have had Mr Dezman inspect the giraffe swing at the park more frequently than once a week.
If there had been a system of inspection complying with the Australian Standard, that is a visual inspection every day or two for obvious hazards and damage from vandalism, there is a strong likelihood that injury to this plaintiff would have been avoided. It would have been possible and not unreasonably demanding to expect the Territory to have carried out inspections of this piece of equipment either daily, or at least every two days.
The day of the injury, 4 February 2002 was a Thursday. There is no evidence that Mr Dezman had been called out to the park since the previous Friday. I find that there is all likelihood the equipment had last been inspected six days earlier, and was due for another inspection the following day. In those circumstances I am satisfied that there was a foreseeable risk of injury to the plaintiff, and that the injury probably would have been avoided by a more frequent system of inspection. I am satisfied that a more frequent system of inspection was required by the relevant Australian Standard. It seems to me in those circumstances that the plaintiff has made out the pleaded breach of duty of care by the Territory.
There is a defence pleaded of contributory negligence, essentially in using the swing when he knew that the hand grip was broken, and that this might be dangerous, and hence in failing to take reasonable care for his own safety. It is clear as a matter of law that a 14-year-old boy is capable of being guilty of contributory negligence, although the standard of conduct applicable is different to that which would apply to an adult in the same circumstances.
The hindsight issue raises its head again here, in that it is now clear that there was a danger that the plaintiff might suffer injury of the kind that he did. I would expect a 14-year-old boy to realise that he might hurt his hand on a piece of broken piping like this, but there was no suggestion that it rendered the chain itself dangerous or that there was any likelihood that the entire swing would fail or that he might be thrown to the ground. One could not reasonably conclude that the plaintiff should have foreseen that by using the swing in the way he did, he was exposing himself to the kind of injury which he suffered. He had used this swing previously many times, including many occasions when the plastic piping had been damaged, without any consequences of this kind, and he was aware that other people had used it in a similar condition. There is no suggestion that anyone else had ever been injured in this way, or at all, as a result of damage to the piping. I am not satisfied that the plaintiff behaved unreasonably, and hence not satisfied that the defence of contributory negligence has been made out.
That brings me to the question of damages. The plaintiff struck the metal fence on one side of the frame of the swing face first. He suffered serious facial injuries. He was knocked unconscious. It appears that his body must have fallen on to the seats or steps of the steel frame. His first recollection after the injury is of lying on the tanbark in front of the frame with his brother and nephew standing over him. His mother took him to Calvary Hospital, where he was x-rayed, and spent some hours, being sent home at about 11.00 o’clock that night.
The x-ray revealed an undisplaced fracture through the nasal bone, with minimal annulations at the fracture site. The plaintiff was sent by his general practitioner to Dr Tuan Pham, an ear, nose and throat surgeon, who saw him within about two weeks of the injury, and reviewed him in June 2004.
Dr Pham referred the plaintiff for a CT scan which showed evidence of congestion over the nasal septum and turbinates, causing narrowing of the nasal air passages on both sides with scattered mucosal thickening throughout the sinus system. Dr Pham prescribed a nasal decongestant spray which the plaintiff found helpful. He proposed as an option surgery to reduce the size of the turbinates, and to open up the sinus range halfway.
The plaintiff also suffered swelling around the eyes, an abrasion to the left eyelid and other abrasions, and loosening of teeth for which his dentist gave him some gel. All of the injuries except that relating to the nose have resolved, but he has been left with continuing after-effects of the nasal fracture. He snores loudly. When he gets a cold the symptoms continue for extended periods. It remains possible that he will decide at some time in the future to undergo surgery. He has not done so so far. He says that he cannot afford it. He did not give evidence of any present intention to undergo surgery in the near future.
The plaintiff was sent last year to Sydney to see an ear, nose and throat specialist, Dr John Francis. It is acknowledged that those representing the defendant have made a forensic decision not to serve his report. I infer that Dr Francis’s evidence would not have assisted the defendant’s case.
The injuries were serious and have left the plaintiff with a disability which is more than of mere nuisance value, and which will either be with him permanently, or will come ultimately to surgery which may be completely or partly successful. It seems to me that a proper figure to compensate the plaintiff by way of general damages would be $42,000.00, and I award that sum. Most of his problems have been in the past, and I apportion $30,000.00 of those general damages to the past, with that sum being more heavily weighted toward the period immediately after the accident. I allow interest on the past component of the general damages for the period of six and a quarter years, at $5,000.00. The treatment expenses are agreed at $882.70, all of which has been paid by Medicare and hence does not attract interest.
I take account of the possibility of future surgery and the continuing cost of medication in the form of nasal decongestant spray which the plaintiff still uses irregularly. The plaintiff’s evidence was that about three years ago he moved from Canberra to Queensland. He finds that he is less susceptible to colds there, and needs to use the nasal spray much less frequently. His recollection was that the last time he used it was about eight months ago.
In the absence of specific figures as to the cost of medication and the cost of surgery, I can do no better than arrive at a generalised figure to compensate the plaintiff for the possibility that he will incur expense in the future. The amount I award in that regard is $2,500.00. The claim for a Griffiths v Kerkemeyer component is not pursued. The components of the award are therefore general damages $42,000.00, interest $5,000.00, treatment expenses $882.70, and future treatment expenses $2,500.00, a total of $50,382.70. There will be judgment to the plaintiff for that amount.
Following disclosure of a rejected Calderbank offer by the plaintiff to settle for less than the judgment amount, I order that the defendant pay the plaintiff’s costs, with costs incurred after 9 July 2008 assessed as between solicitor and client.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 15 July 2008
Counsel for the plaintiff: Mr DP Shillington
Solicitors for the plaintiff: John O’Keefe
Counsel for the defendant: Mr SH Pilkinton
Solicitors for the defendant: ACT Government Solicitor
Date of hearing: 14 July 2008
Date of judgment: 15 July 2008
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