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Jamesy Dixon by his next friend Margaret Webb v Kym Paul Davies
Supreme Court of the Northern Territory of Australia at Alice Springs (O'Leary J)
17th November 1982. No. 117 of 1979.
Casenote by Colin R. McDonald
This was an action for damages arising out of a motor vehicle accident on the 23rd of April, 1977, when the plaintiff was struck by a motor vehicle owned and driven by the defendant as he was crossing Memorial Drive, Alice Springs. The plaintiff was at the time a boy of about five years of age. He is now ten. He was a full-blood Aboriginal of the Amoonguna tribe. Liability had been admitted by the defendant; it remained only to assess damages.
The plaintiff was admitted to Alice Springs Hospital some twenty minutes or so after the accident. He was found to be in a serious state, unconscious and with injuries and abrasions above the left eyebrow and left frontal parietal area. He had a fracture of the left lower third of the femur. X-rays of the skull were taken, but did not reveal any fracture. He subsequently underwent surgical treatment for his fracture of the femur. He was very slow in regaining full consciousness; indeed he remained unconscious or semi-conscious for about three weeks. He was in hospital for just two months. He was discharged in a wheel chair, and arrangements were made for him to be brought back to hospital from time to time for physiotherapy.
In October 1977 he was reviewed in a paediatric clinic of the hospital, and it is recorded that he then would not walk, that he had to be carried, and he had limited use of the right arm. On 20 March 1978 he was re-admitted to hospital for surgical treatment for contracture of the left gastrocnemius muscle. He underwent corrective surgery to the tendons of both feet to rectify the contracture, and was put in plaster after it. He remained in hospital until 10 May 1978. He was again admitted to hospital on 7 June 1978 for a course of physiotherapy to try and mobilise him on his legs. He was then found to have, as a direct result of his injury, a spastic diplegia. He was at first mobilised with a walking frame and later was assisted to get walking without the frame. He remained in hospital until 23 July 1978.
At the time of judgment the plaintiff had an ataxic limp; he had left foot drop which forced him to throw his foot forward to clear the ground; and there was some wasting and slight incoordination of the right arm. His right leg was two centimetres shorter than his left; there was slight wasting of the right thigh; and there was gross wasting of the left calf muscle, He had slight varus deformity of the left foot which causes his left foot to curve inwards, and the toes of the left foot are held in a deformed position with the second and third toes going across the top of the great toe. O'Leary J stated:
It is clear on the evidence that the plaintiff suffered a gross head injury in the accident, probably a brain stem/cerebellar injury, resulting in severe peripheral dysfunction. The right side is rather more affected than the left, hence the under-development of that side, and the wasting and slight incoordination of the right arm. The plaintiffs ataxic gait is the result too of this injury. For all that, however, the evidence as a whole would lead me to think that the plaintiffs intelligence has not been affected by the head injury, or at the most only minimally affected. I think the balance of the medical evidence would indicate that the plaintiff has not suffered any intellectual impairment as a result of the accident.
The plaintiffs present disabilities then are in the main, if not entirely, physical. In saying that, however, I would not want to be thought to under-estimate their seriousness. The plaintiff has been left with a moderately serious deformity of the left leg with loss of almost all the musculature of his calf, a dropped foot and a slightly deformed foot. There is evidence that his condition could be improved by further surgery, in particular, by arthrodesis of the left ankle to correct the foot drop. The left leg also could be shortened to correct leg length disparity, but since this is lessening as the plaintiff grows and matures, I think it unlikely that it will be any substantial problem for him or that surgery will be called for.
Were it not for the accident, I think the plaintiff most likely would have commenced employment at or about the age of 17 or 18, and then probably on a cattle station or as a labourer in the building and construction industry. He would not have been likely to have taken on any work that was at all intellectually demanding. It seems more likely than not that his work would have been in the construction industry rather than in the cattle industry, but in any event it would have involved labouring or physical activities.
With his present disabilities I think it unlikely that the plaintiff will engage in work as a stockman in the future. The evidence indicated that he would not have the strength or the coordination necessary to cope with programmes such as automotive mechanics, metal work or carpentry. Although at a marked disadvantage in the work force, I do not think it can be said that the plaintiff is altogether unemployable - indeed neither counsel suggests that that is so - and I think it likely that, if and to the extent that he is so motivated, he will find work of some kind in the future.
It seems likely, as I have said, that but for the accident the plaintiff would have commenced employment at about the age of 17 or 18 on a cattle station or as a labourer in the building and construction industry, more likely the latter. In calculating his future economic loss, therefore, I have taken as a starting point the amount a man could have earned as a builder's labourer starting work at 18 years of age and from there proceeded on the basis of the actuarial tables supplied ... I have calculated on the basis of Aboriginal mortality, and I have also taken into account that Aborigines as a rule have a shorter working life than other members of the community. I have also taken into account the various factors to which I have already referred, and, to the extent that I can, the many imponderables that are necessarily inherent in attempting to assess damages in a case such as this. In the result I think an appropriate amount to award the plaintiff for his future economic loss is $85,000.
His Honour went on to make some significant statements concerning loss of cultural fulfillment:
When considering an amount to award the plaintiff for his pain and suffering, past and future, and for his loss of amenities of life, there is no doubt that the assault on his bodily integrity has been substantial; he has been left obviously deformed and has much reduced physical capabilities. His pain and suffering has been considerable to date, and there will be some in the future. He has lost much of the enjoyment of life that he otherwise could reasonably have expected to have had. But a further matter arises for consideration under this head, and that is the loss of standing within his own Aboriginal community and his lowered expectation of ever being able to enjoy full tribal rites. On this matter Mr Hargan, an anthropologist, gave careful, detailed and impressive evidence from which it appears that although he will probably be able to go through the earlier stages of initiation which are in fact passive revelation, passive acceptance of revelation and so forth, it is extremely unlikely, because of his deformities and disabilities, that he will ever achieve the full responsible adult status gained by participation in ceremonies and strenuous rituals which are an essential part of subsequent initiation. He will be denied access to tribal secrets, and, as Mr Hargan said, will remain "wiyai", or "young boy". That term, he said, is used in its most perjorative sense. A limited induction as an Aboriginal into tribal life, he went on to say, involves him in a "very substantial loss of position ... The people who lack knowledge of things traditional are continual butts of jokes at the very least in some form of Aboriginal gatherings and in some situations. It certainly involves a feeling of being less than one could be ... the diminution of one's position in the eyes of a people as well as a. loss of actual formal rights". It was put to me by Counsel for the defendant that given his somewhat limited learning ability, he may not have gone very far through the various stages of initiation in any event. There is, of course, the possibility that that would have been so, but I do not think it could be doubted that he would certainly have gone much further through those various stages than he is now likely to do. His marriage prospects will also, it would seem, be diminished because of this lowered status.
I am grateful to counsel for the plaintiff for referring me to a judgment of Zelling J in Napaluma v Baker, an unreported decision of the Supreme Court of South Australia handed down on the 5th of March 1982, in which this particular problem was discussed. In that case, the plaintiff, a full-blood Pitjantjatjara Aborigine had in fact reached the age of 18 years and had "become a man" before his accident. His head injuries caused a feebleness of mind which would prohibit him from further involvement with matters of spiritual tribal significance. For loss of amenities on that head alone Zelling I awarded him damages of $10,000. I consider the present is a case where the loss of this head is more serious than in that case because the present plaintiff is unlikely ever to "become a man" and has obvious deformities which were not present in Napaluma v Baker. Accordingly, I award him $20,000 for loss of cultural fulfillment as described by me above. This figure is included -in an overall amount for damages for pain and suffering and loss of amenities of $45,000.
There remains only to consider an amount to be awarded to the plaintiff for future medical expenses. Having regard to what I have already said as to this, I think an appropriate amount to award is $4,500.
I therefore award the plaintiff damages as follows:
Pain and suffering and loss of amenities:
$45,000
Future economic loss:
85,000
Future medical expenses:
4,500
$134,500
Accordingly, there will be judgment for the plaintiff in the sum of $134,500 together with costs.
Mr D Mildren instructed by Messrs Cridland & Bauer appeared for the plaintiff.
Mr Mansfield instructed by Messrs Ward Keller as agents for Alderman, Lee Wilson appeared for the defendant.
[Napaluma v Baker is noted in [1982] AboriginalLB 28; 1(4)pg9]
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