Todd Scott Lemmon v Australian Capital Territory - [2008] ACTSC 70

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Todd Scott Lemmon v Australian Capital Territory

Details

AGLC: Todd Scott Lemmon v Australian Capital Territory [2008] ACTSC 70
Case: [2008] ACTSC 70
Decision Date: 15 July 2008

CaseChat Overview and Summary

In the case of Todd Scott Lemmon versus Australian Capital Territory, the plaintiff, a schoolboy aged fourteen, sought damages for personal injury sustained from damaged playground equipment at a school managed by the defendant. The central dispute was whether the Australian Capital Territory, as the public authority responsible for the school, was negligent in failing to maintain the equipment in a safe condition. The High Court was tasked with determining the defendant’s liability, considering the system of regular inspections and compliance with the Australian standard for playground equipment. The plaintiff's injuries included facial injuries and a fracture of his nasal bone, which were directly caused by the damaged equipment.

The court examined whether the Australian Capital Territory had a duty of care towards the plaintiff, given the statutory responsibilities and the standard of care expected in maintaining school facilities. Key issues included the adequacy of the inspection system and the frequency of inspections in relation to the Australian standard. The court also considered the principle of contributory negligence, as the plaintiff's actions in using the equipment contributed to his injuries.

The court found that the Australian Capital Territory was indeed negligent in its failure to adequately inspect and maintain the playground equipment, thereby breaching its duty of care. The court held that the inspection regime was not sufficiently frequent or rigorous to ensure compliance with the Australian standard, which directly contributed to the plaintiff's injuries. The court assessed the plaintiff's contributory negligence but determined it did not absolve the defendant from liability. The court awarded damages to the plaintiff in the amount of $50,382.70, and ordered the defendant to pay the plaintiff's costs, with costs incurred after a specific date to be assessed as between solicitor and client.

Orders

Orders of the court

1. Judgment be entered for the plaintiff for $50,382.70.

2. The defendant pay the plaintiff?s costs, with costs incurred after 9 July 2008 assessed as between solicitor and client.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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