A child who sustained a significant head laceration and resultant scarring when a table fell on her head in a café has been awarded damages, for both non-economic and economic loss, from the local Council who occupied and operated the café.
In issue
- Whether the local Council had breached its duty of care to the plaintiff.
- The appropriate award of non-economic and economic damages to be awarded to the child plaintiff with scarring but no diagnosed psychiatric condition.
The background
The plaintiff was 6 years old when she was injured at a café located within the Des Renford Leisure Centre at Maroubra in Sydney (the café). The café was occupied and operated by the defendant, Randwick City Council (the Council).
On 31 January 2020, the plaintiff was at the café with her mother and younger sister. Situated in the café was a tall round table. The table was 1.097m high; the tabletop made of wood was 7.5kg and 0.7m in width; the base made of metal was 20.5kg and 0.55m in width; and the top and base were joined by one round metal column. The top of the table was about level with the top of the plaintiff’s head when standing straight.
At the relevant time, the plaintiff’s mother was facing away talking to a friend when the plaintiff reached up with both of her hands and put her fingers on top of the table. As she did this, she leant back a little, bent her knees and tilted her head backwards. The table subsequently toppled over and the tabletop struck the plaintiff’s head. The plaintiff sustained a 10 to 12cm curved transverse laceration to her forehead and anterior scalp down to exposed bone.
The plaintiff, by her tutor and father, sued the Council for damages in negligence (noting the café was occupied and operated by the Council). The plaintiff was 12 years old at the time of the trial.
The decision at trial
Liability
It was not in dispute that the Council owed the plaintiff a duty of care. However, there was some dispute regarding the scope of that duty. The Court determined that the Council owed a duty of care to take reasonable care for the safety of persons, such as the plaintiff, coming into the café. Alternatively, the Court determined that the Council owed a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons, such as the plaintiff. Ultimately, the Court stated that there was no practical difference between the two formulations of the duty.
In determining whether the Council had breached its duty of care, the Court considered, amongst other things, the unchallenged evidence of the plaintiff’s expert in ergonomic and safety management. The evidence was that a very modest level of force was all that was needed to tilt a table of this shape, leading the Court to find that the risk of harm was not far fetched or fanciful and not insignificant.
Finally, the Court considered whether a reasonable person in the position of the Council would have taken precautions against the risk of harm. The Court concluded that in the circumstances, the Council ought to have taken precautions such as affixing the tables to the ground or removing them altogether.
Causation was not in dispute. The Court found the Council was negligent.
Quantum
The plaintiff and the defendant each obtained medico-legal evidence from a plastic surgeon respectively. The Court also had reference to the plaintiff’s general practitioner and school records, and treating reports from a psychologist.
The judge considered the medical evidence regarding the plaintiff’s scarring and the impact it had had on her life to date. The judge went further to physically observe the plaintiff’s scar during the hearing and found it to be quite prominent and noticeable. Non-economic loss (general damages) was awarded in the sum of $112,500.
Modest allowances were made for future out-of-pocket expenses. Past out-of-pocket expenses were to be agreed between the parties.
Despite agreeing with the Council that the plaintiff had not been diagnosed with any recognised psychiatric disorder, the judge nonetheless considered that it would not be ‘plain sailing’ for her. Her scarring, along with the emotional and mental consequences of it, were likely to cause her future economic loss. This head of damage was awarded in the amount of $50,000 on a global basis.
The plaintiff was awarded the sum of $175,300 in damages to be paid to the Court to await further order (noting she is still a minor). The Council was ordered to pay the plaintiff’s costs.
Implications for you
This decision has significant implications for occupiers of public venues, particularly those frequented by children. Children can interact with premises, and relatively ordinary furniture (albeit potentially unsafe furniture) located within premises, in unpredictable ways. Occupiers ought to take care and turn their mind to this risk as the absence of prior incidents or actual knowledge of danger was not a sufficient defence in this case.
From a quantum perspective, this decision demonstrates the Court’s approach to awarding damages for injured children, particularly with scarring and the mental consequences associated with that, even without a formal diagnosable psychiatric injury.
