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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Collett, Andrew --- "Napaluma v Baker" [1982] AboriginalLawB 28; (1982) 1(4) Aboriginal Law Bulletin


Napaluma v Baker

Assessment of damages - road accident - young Pitjantjatjara man suffering brain damage resulting in loss of spatial orientation, short term memory and restricting ability to perform fine movements - present and future involvement in traditional Pitjantjatjara ceremonies greatly restricted.

Napaluma v Baker

Supreme Court of South Australia at Adelaide (Zelling J)

5 March 1982

Casenote by Andrew Collett

On 15 February 1978, N was a passenger in a motor vehicle which overturned near Indulkana on the Pitjantjatjara lands in the north-west of South Australia. N sustained a severe head injury and was taken to the Alice Springs Hospital where he remained unconscious for several days.

His state of unconsciousness deepened and a burr-hole operation was performed which indicated injury to the right cerebral cortex. The left side of N's body was partly paralysed and he was unable to speak. He remained in hospital for a month during which time his father, a traditional healer, spent hours with him helping him to regain the use of his left limbs and helping him to talk.

Upon discharge from the hospital, N was still incontinent. His left side was still weak but he was able to walk with a support. He was able to talk slowly but had difficulty in articulation. He returned with his father to his community at Waltjitjata (near the junction of the South Australian, Northern Territory and Western Australian borders). His father continued to provide constant care and his condition improved to the extent that he now takes part in the day-to-day activities of the community although by comparison his movements are slow, he appears to be unable to think quickly or concentrate for any period of time. He has lost some degree of co-ordination in his left arm and his general mobility is diminished. His memory has been seriously affected and he has lost his sense of direction.

At the time of the accident, N had gone some of the way through the traditional Pitjantjatjara ceremonies and had been initiated to manhood. However after the accident his involvement in ceremonies has become circumscribed. He is no longer taught the words of traditional songs or shown sacred places as the community is no longer confident that his recollection is reliable or that he can appreciate their significance. He is taken to ceremonies but is discouraged from participating in the more secret or demanding parts.

Liability was admitted on behalf of the defendant and the matter was set down for assessment of damages.

The case raised a number of significant issues. It appeared to be the first time that the Court had considered the question of awarding damages for loss of traditional advancement in an Aboriginal community. Another part of the claim was for compensation for the father's care and treatment as a traditional healer. The case was also concerned with the relevance and appropriateness of the use of western tests to assess brain damage in traditional Aboriginals.

Evidence was given by the treating surgeon and two neurosurgeons who had subsequently examined the plaintiff, by the local community adviser and by the Pitjantjatjara anthropologist as to the future significance of his loss of traditional advancement.

A psychiatrist and a clinical psychologist gave evidence as to his degree of brain damage. The clinical psychologist had performed two neuropsychological tests upon the plaintiff: the 'Queensland Test', a non-verbal test of intellectual functioning developed for and normed on Australian Aboriginals, and the 'Benton Visual Retention Test', a nonverbal measure of organic brain damage which has also been used with Australian Aboriginals. As a result of these tests the clinical psychologist concluded that N had suffered brain damage resulting in a marked impairment of spatial orientation, narrowing of his visual field of attention and moderate to severe short term memory loss. The psychiatrist agreed with these conclusions. The neurosurgeons were unable to be as precise about the degree of brain damage due mainly to language difficulties.

Zelling J expressed reservations about applying tests for intelligence which are meant for white people, even if modified, but concluded:

I have, however accepted the evidence of the two specialists in mental health because it accords with the Aboriginal evidence that the plaintiff now loses his way, can have tricks played upon him and generally is slow to respond in the mental environment of the Aborigine.

In assessing damages for loss of traditional advancement he said:

With regard to loss of amenities, the plaintiff can no longer play sport. His real loss of amenities, however, is one which I have found very little in which to guide me as to assessment. The plaintiff has been through the ceremonies of the Aboriginal community up to date and has been made a man. However, in the ordinary course of events, further secrets would be entrusted to him and he would, in our parlance, rise to higher degrees. It is now certain that the plaintiff will not be advanced to further degrees in Aboriginal lore for two reasons, firstly, he may not keep secret what is entrusted to him and secondly, he has not the ability to pass on accurately the secrets to others. Accordingly, he is left out of some ceremonies and he plays a merely minor passive role in others and he is therefore less than a full member of the Aboriginal community. He will not play the part in relation to reciprocal relationships with other Aborigines of his own peer group, nor will he be consulted, at least not as much as others, in making tribal decisions. I feel that this position may worsen after his father's death. At the moment his father is an Aboriginal of high degree within the tribe. He looks after the plaintiff and as long as his father is present I have no doubt that that will shield the plaintiff from much of his disabilities within tribal life. That may well not be so, or at least be so to a less degree, when his father dies ... I, in this case, have to put a separate figure, as I said, for loss of amenities which, although they include loss of ability to play sport, are basically a loss of position in the Aboriginal community. Doing the best I can on this head and conscious that I look at the problem with European eyes and not with the eyes of those within the community, I allow $10,000 for loss of amenities on this head alone.

In relation to the assistance rendered to the plaintiff by his father His Honour said:

The plaintiff has also claimed damages for the support which his father gave him, firstly as an Aboriginal healer, and secondly in doing far more for him than the average father in the Aboriginal community does for an adult son. They are not quite Beck v Fanelly [13 (1975) SASR 17] damages because, except for a period of about a month when the father spent all his time at the hospital and lost his earnings in the community as a result, the plaintiff's father has not lost money from work that he has done. On the other hand, if the help had been given by somebody else, it would have had to be paid for. One of the difficulties is that it is unlikely that such help would have been useful as I am told that the only European help that would have been available in that area was from a person who does not speak Pitjantjatjara. Doing the best I can with a somewhat intractable problem, I allow $4,000 on the analogy with Beck v Farrelly damages, $2,000 up to the date of judgment and $2,000 hereafter.

Damages were tabulated as follows:

Up to Judgment

Pain & Suffering & loss of amenities $20,000

Loss of wages $5,000

Medical expenses

Beck v Farrelly damages $2,000

$27,000

Post Judgment

Pain & Suffering & loss of amenities $15,000

Loss of Wages $20,000

Medical Expenses $1,000

Beck v Farrelly damages $2,000

$38,000

Lump-sum interest was allowed in the sum of $9,000 and accordingly there was judgment for the plaintiff for $74,000.

Due to the degree of brain damage, it was the opinion of the clinical psychologist that the plaintiff would require the assistance of a manager to handle his financial affairs. The case has been adjourned to enable discussion as to the appropriate manager.

Mr A.C. Collett for the Plaintiff. Mr M.W. Mills for the Defendant.

Solicitors for the Plaintiff: Johnston, Withers, McCusker & Co and the CAALAS.

Solicitors for the Defendant: Ward & Partners.


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