Babbage v Dungog Shire Council

[2003] NSWSC 536

CITATION:	Babbage v Dungog Shire Council [2003] NSWSC 536
HEARING DATE(S):	25-29 November 2002 2-4, 16 & 17 December 2002
JUDGMENT DATE:	20 June 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Burchett AJ at 1
DECISION:	That the Plaintiff bring in, on a date to be fixed, short minutes of orders including entry of verdict for the Plaintiff.
CATCHWORDS:	Negligence - action against Council as highway authority for non-feasance - sick tree not removed from edge of road on which it was liable to fall in storm - Council in control of road including edge where tree was growing - duty of Council to take steps to remove obvious danger - duty to institute system for detection and removal of such dangers - whether in circumstances plaintiff was contributorily negligent in driving into the tree during a storm - measure of damages in case of very serious injuries - Griffiths v Kerkemeyer claim for extra attention in intensive care
LEGISLATION CITED:	Supreme Court Act 1970, s94 Supreme Court Rules, Schedule J, Practice Note 92
CASES CITED:	Baldwin v Lisicic (Unreported, Court of Appeal, 20 April 1993) Bresatz v Przibilla (1962) 108 CLR 541 Brodie v Singleton Shire Council (2001) 206 CLR 512 Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House (2000) 201 CLR 321 Henderson v Campbell [2002] NSWSC 1202 Hill v Commissioner for Main Roads (1989) 68 LGRA 173 Kars v Kars (1996) 187 CLR 354 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116 Sharman v Evans (1977) 138 CLR 563 South Sydney Council v Walsh [2003] NSWCA 102 Van Gervan v Fenton (1992) 175 CLR 327
PARTIES :	Erin Jane Scott Babbage Dungog Shire Council
FILE NUMBER(S):	SC 20559/01
COUNSEL:	Mr JP Gormly SC with Mr AC Scotting for the Plaintiff Mr MT McCulloch with Mr SPW Glascott for the Defendant
SOLICITORS:	Enrights Solicitors for the Plaintiff Phillips Fox for the Defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Burchett AJ

Friday, 20 June 2003

20559/01 Erin Jane Scott Babbage v Dungog Shire Council

Judgment

1 His Honour: Dungog is a small country town a little distance from Newcastle, on the edge of the Hunter Valley. The shire surrounding it is a dairying and cattle area, parts of which are taken up by forests and national parks. But its rural peace is disturbed, according to one witness, in most years, and according to other evidence, at any rate in frequently recurring years, by severe windstorms, fierce enough to damage roofs and buildings and blow down numerous trees. This claim arises out of one such storm, which uprooted a tree growing in the unmade edge of a road under the control of the Dungog Shire Council and laid its trunk right across the bitumen, so as to cause a very serious accident. Of course, on the bare facts I have mentioned, no one would conclude that the shire was responsible; rather, the blame would be put upon what human irony commonly calls an “act of God”!

2 But, in the present case, the evidence has raised three further issues: whether the defendant Dungog Shire Council was negligent in failing to institute and maintain an appropriate system (some system there was, which I shall examine) to protect its roads from dangerous trees growing in their verges, that is, on part of the strip of land owned and controlled by the Council for the purposes of the road; whether at all events the Council was negligent, in respect of this particular tree, in permitting it to remain, having regard to its visibly unhealthy condition for some years prior to the accident; and whether, after the tree fell, the Council became vicariously liable for the negligence of an employee or employees alleged to have seen the danger and done nothing to warn or protect others who might collide with it in darkness and rain.

3 It was in the evening of 23 June 1998 that the storm in question struck the Dungog area. Earlier that evening, Erin Babbage, the plaintiff, then just 21 years of age and six months from completion of her full-time studies at the University of New South Wales for the degrees of Bachelor of Applied Arts (Dance) and Bachelor of Education, had driven her mother to a farm where she was to dine, and had promised to return by 11 pm to take her back to her home in Dungog. Shortly before eleven, when Miss Babbage drove out again, the storm was raging. She drove alone in a Holden Gemini along Alison Road, a bitumen sealed road at the outskirts of the town, where the speed limit was 80 kilometres per hour. Since no one witnessed the accident, the severity of which left Miss Babbage with amnesia for the event, her speed at the time is unknown. However, she crashed into the trunk of a substantial ironbark tree (more than half a metre in diameter) lying completely across the bitumen, which was only four and a half to six metres wide, with no gravel shoulder. A wet ironbark is very much the same colour as wet bitumen. It will be necessary to describe the plaintiff’s multiple injuries later in these reasons: here, I merely note that they were grave to the point of being very nearly fatal, and have left her with lasting disfigurement, disability and pain.

4 Although, the next day, roadworkers employed by the defendant cut the tree into logs with a chainsaw so as to remove it from the road, the stump or butt and a partially up-rooted root system remained on 18 September 2001, when they were inspected by a Mr Robert Meys. Mr Meys has a certificate in horticulture from the Ryde School of Horticulture, as well as significant experience and other qualifications, and is a specialist arborist. He identified the tree as a eucalypt and agreed that it may have been, as local evidence suggested, a grey ironbark. In forming his opinions about this tree, Mr Meys took into account what he could see on a video taken on the adjacent farm in 1993, five years before the tree fell. This video, which confirms that the relevant part of Alison Road is quite close to the township itself of Dungog, because a thickly built-up area is clearly seen in the background, happens, most fortunately for the plaintiff, to include the very tree in a view across the farm to the road. Counsel for the defendant criticised what he said was a lack of clarity in the amateur photography, but I am satisfied the tree is perfectly visible, standing close to another tree which is still there. In the video, the tree that fell is obviously tall (on the evidence, it exceeded 20 metres in height), and it is remarkable for the sparseness of its foliage. There are few leaves and little in the way of branches. The tree stands noticeably bare by comparison with the other trees in the area.

5 Apart from the lack of foliage revealed by the video, Mr Meys noted that the stump showed a large area of scarring which appeared to have been present for a number of years. The scarring covered about 25 per cent of the circumference of the tree, so as to affect about 25 per cent of the transport tissue, that is to say, as I understood his evidence, the tree was effectively about one quarter ringbarked. He explained that, depending on the precise position of the scar in relation to a buttress root, “the damage to the root system would be substantial because of lack of transport [of nutrients through the phloem] to the root system”. This extensive scarring was visible from the road, on the side of the tree next to the bitumen, from the edge of which it was distant within four metres. Mr Meys concluded that both the “minimum amount of foliage” and the scarring were “indicative of the tree being in poor health”, and that because of the degree of the inadequacy of the foliage this was “obviously” so. In cross-examination, he said it was “highly unlikely” that the buttress roots of this tree “could be healthy”, explaining that if a tree has damage like this, “it is highly likely the root system has been damaged accordingly”.

6 Having looked at the video, Mr Meys considered the “poor foliage and poor branch structure” of the tree indicated it “would have been in poor health” for at least ten years before 1993. In his report of his inspection, he stated that “the loss of approximately 25% of transport tissue had a great effect on the maintenance and formation of supporting and feeder root systems”, and expressed the opinion that the fall of the tree “can be directly related to [its] poor health”.

7 In cross-examination, Mr Meys conceded a lightning strike was “possible”, but only one of many witnesses who described this storm mentioned lightning, and he only with reference to its onset. He was a Mr Thornton who was, at the relevant time, a member of the “maintenance crew round the roads” and had been in the State Emergency Service for 18 years, during which he had “cleared shire roads of trees on many occasions”. On the night in question, he helped remove a number of trees from roads in parts of the shire that were further out from Dungog and fairly heavily timbered. He made it clear he knew the difference between a tree blown over and one struck by lightning which, he explained, “shatters” the tree. He said of “all” the trees he had removed from roads in the shire during or after storms that they “weren’t lightning strike”; they had been “blown over”. Mr Gray, the Council’s assistant manager of engineering at the time, who coordinated much of the work of clearing the roads, described the storm as a “windstorm”, though with some rain, and referred to trees as having “blown over and blocked roads”. The fact is no one suggested any part of the tree was shattered, as lightning might do, and its partial uprooting was exactly what you would expect if it were blown over. The other trees which fell in the storm were described by a number of witnesses, apart from those I have named, in terms indicating they had been blown over. I do not accept that the cause of this weakened tree falling was an unique lightning strike.

8 For the Council, the report of an arborist, Stuart Pittendrigh, was tendered in answer to the evidence of Mr Meys. Mr Pittendrigh did not give oral evidence and, although I accept he is qualified in horticulture, I do not know what the nature of his relevant experience may be. He did not view the remnants of the tree or attend the scene, but commented on the video and the report and photographs produced by Mr Meys. He conceded that the “video images of the standing tree”, which he called “poor”, nevertheless “indicate that the tree displays no significant crown”, but, without discussing the relationship between the crown and the roots, or between a partial ringbarking and roots dependent on the severed phloem, matters which I found convincing in the evidence of Mr Meys, he contented himself with saying:

Trees that exhibit sparse crowns are not necessarily structurally weak of hazardous in fact [sic] they can be quite sound and are often retained because of their habitat value.

To say the tree was not necessarily structurally weak is not to deny the conclusion to be derived from the evidence of Mr Meys that it was highly likely a buttress root or roots had been weakened, so that the tree could be more readily uprooted in a high wind. I did not find in what Mr Pittendrigh himself described as his “brief report” any reasoned refutation of the opinions expressed by Mr Meys.

9 The plaintiff relied on certain answers made by the defendant to interrogatories. These answers admitted that no one on behalf of the defendant assessed

the health and stability of the tree [with which the plaintiff collided] before it fell across the road in the storm on the night of 23 June 1998

and no

work had been done on the tree by way of tree surgery, lopping, inspection or other work with a view to assessing the health or stability of the tree in the five year period prior to 23 June 1998.

In the same period, no “horticultural or tree experts” were “consulted by the Defendant to assess the health and stabilities of trees in the Shire and in particular on Alison Road”; nor did the defendant “have in place a roadside tree management plan”. No

assessment had been carried out by the Defendant to determine whether roadside trees in the Shire could fall across its roads (other than in the area of towns or villages in the jurisdiction of the Defendant) in the five year period prior to 23 June 1998.

10 The bare bones of these answers were fleshed out by the evidence. Mr Cox, the Council’s Roadworks Supervisor, who reported to Mr Gray, made it clear the only system the Council had to deal with possibly dangerous roadside trees related to “residents complaining to Council”; in such a case, he “would end up with a memo on [his] desk”, a “pro forma form”, upon receipt of which he “would inspect the situation”. Having done so, he did “recall removing a couple” of trees, and on “other occasions when [he] inspected the tree [he] decided not to remove the tree”. Although it was argued on behalf of the Council that its supervisors would not have the expertise to recognise an ailing tree which should be removed from the edge of a road on safety grounds, it is clear from this evidence that in fact its supervisors were required to make assessments of this kind, but only after a special complaint had been lodged. And considering that most of the employees of the Council who gave evidence had grown up in the country and lived there most of their lives, it would indeed be surprising if the ability were lacking in any of them to recognise the tell-tale signs of a partially ringbarked tree with grossly impoverished canopy.

11 Mr Cox’s evidence was confirmed by his superior, Mr Gray. Asked whether the Council had “any system of inspecting trees adjacent to roadways”, he replied:

No, we had no system other than responding to reports from residents or motorists or anything that our staff would have identified in their normal course of their duties.

Pressed, he added:

Reports of that nature [that is, “received from a member of the public”] would have been recorded on our action request system, a computerised system, and that would issue a works order or an instruction. Trees were inspected by our work supervisor Ron Turner.

(Mr Turner was, in fact, one of two supervisors concerned with roads who reported to Mr Gray, the other being Mr Cox.) Later in his evidence, Mr Gray described the Council’s system as “purely a reactive system”. He said he had not himself inspected trees in response to complaints. He had not grown up on a farm, but his staff had “all been brought up on the land”, and it “was certainly clear to [his] staff even outside storms that there were some trees that needed to be removed”. Work orders in respect of trees that had been the subject of a complaint were usually referred to Mr Turner. Asked:

Did you understand that he had some capacity to go out and inspect trees to determine whether they represented a risk?

Mr Gray replied:

I understood his experience in undertaking that type of work. He had no formal qualification.

He said:

If a tree was determined by Mr Turner to be unsafe then we would remove the tree.

Asked about the possibility that Mr Turner might be unsure, Mr Gray’s evidence was that Mr Turner “would decide the question one way or the other”.

12 The defendant’s Operations Engineer, who was at the relevant time an assistant engineer, Mr Hitchins, gave similar evidence about the Council’s system, except that he said a complaint would be given to an appropriate employee, and it was “[i]f that employee could not do the work [that] it would go back to management for them to make a further decision on the matter”. This indicates that someone like Mr Cox or Mr Turner might have considerable discretion, and is in keeping with Mr Cox’s evidence, which I regard as probably reflective of the actual practice that was followed.

13 To take stock of the evidence so far. I am satisfied that the tree with which Miss Babbage collided had been for a number of years in an obviously sickly condition, indicative of the likelihood that the root system on which its stability depended would also be unhealthy, and weakened. The Council itself, by entrusting its supervisors with the assessment of complaints, acknowledged the practical experience of its country-bred employees, and I am satisfied that they, and certainly the supervisors, were well able to recognise the potential danger of such a tree. It was standing on land under the control of the Council, as part of its road, and close to the edge of the bitumen. Its lack of any significant canopy and the extent to which it was partially ringbarked were plainly apparent from the road. Had it been necessary to provide the supervisors with some minimal guidance as to what to look for (which , in this case, I do not think it was), the Council could have obtained expert advice and issued an appropriate instruction. In a shire so subject to recurring severe windstorms, that would have been an obvious precaution. At all events, the Council did receive occasional complaints about dangerous trees, generally from outsiders, which it passed to the two roadworks supervisors to investigate. It could have issued a general instruction to them to be proactive themselves, as they went about the roads carrying out maintenance work, in order to detect and deal with potentially dangerous trees, just as, I have no doubt, it would have expected them to observe and remedy blocked culverts in sections of roads where they were working. Had such an instruction been issued and enforced, I am satisfied that this tree, within a few kilometres of the central town of Dungog and on a road that linked up with other roads which must have required work from time to time, would have been identified as a risk to be eliminated.

14 For the plaintiff, expert evidence was adduced in support of the proposition that some more elaborate and focussed plan of management of roadside vegetation should have been in place. This evidence came from Mr Swan, who has had great experience in local government administration, as shire and city engineer and town planner. Mr Swan considered it “part of the normal risk management strategy of council to assess and manage [the] risk” of “trees falling across roads”. He referred to rural councils as having

remnants left of native vegetation which is certainly prone to dying trees from time to time which would be uprooted by wind storms or rain storms.

He said he himself, as City Engineer, had been involved in an audit at Queanbeyan which started at the centre and moved out “to ascertain the number of trees and state of those trees” alongside roads. He advocated a programme of roadside vegetation maintenance and he referred to having himself, as a council employee, removed “dead” or “dangerous” trees, but he conceded a programme, other than the audit at Queanbeyan, had not been instituted. But he confirmed the practicality and minimal cost of an instruction to the person in charge of road maintenance to report any possibly dangerous roadside tree. I accept Mr Swan’s evidence.

15 The question that then arises is, what is the effect in law of these findings? In Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116, the defendant council was the trustee of a scenic reserve, largely covered by dense rain forest, containing a picnic area maintained by the council with which was connected a track not maintained by the council but known by it to be used to a significant extent. A large dead tree 35 feet from that track fell suddenly on a tourist. The High Court held the council owed a duty of care to those lawfully using the reserve. Barwick CJ said (at 120): “For my part, the capacity to care for and control the reserve was in this case the source of duty.” (Cf. Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 429-430.) Walsh J, with whom Barwick CJ otherwise agreed, said (at 131):

The question is whether, knowing that the lower part of the track was used fairly often, the respondent was required, in order to fulfil its duty of taking reasonable care, to cause periodical inspections to be made of that part of the track and of the forest in proximity to it, by a servant who would look around for dead trees close enough to the track to fall upon it and whether, if any such trees had been observed, the respondent ought to have taken some action to reduce the risk of some person being injured by the fall of such a tree.

His Honour answered this question (at 132):

Upon consideration of all the circumstances, I think it is proper to find that the respondent did fail to exercise reasonable care to prevent damage from the danger that existed on the land under its control, by neglecting to make any inspection in the relevant part of the reserve and by taking no step to discover or to deal with any dead tree standing near the lower part of the track.

Gibbs J (at 135) referred to the principle that

it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it

and commented:

In the present case the evidence does not show that the elimination of the risk would have been beyond the capacity of the Council or would have put it to undue expense. The tree that fell had no leaves and this could have been seen by an employee of the Council if he had been sent to walk along the track and had kept his eyes open.

The factual distinction between Schiller and the present case that, in Schiller , the death of the rain forest tree had led to fungus or rot around the base so severe that it simply fell under its own weight at the very moment a visitor was beneath it, whereas here the tree’s root system was weakened so that it fell in one of a number of recurring storms, having presented a danger on the road for some time, cannot make a difference in principle. Nor was the defendant’s control over Alison Road less than that of the Council of the Shire of Mulgrave over the reserve. The one feature of the cases that would, until recently, have been thought to exclude the application of the principle of Schiller to the plaintiff’s claim is the capacity of the defendant as a highway authority: that has been treated in the past as relieving it from any liability for non-feasance, such as the liability incurred by the Council of the Shire of Mulgrave in its capacity as an authority controlling a reserve.

16 But in Brodie v Singleton Shire Council (2001) 206 CLR 512, a majority of the High Court held it would be wrong to treat a highway authority as exempt from liability for negligence on the ground that the conduct in question amounted only to non-feasance. The principal judgment is the joint judgment of Gaudron, McHugh and Gummow JJ. In a comment reflecting the view of Barwick CJ in Schiller, their Honours said (at 559):

[103] It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers.

The “fundamental importance” of this factor of control “in discerning a common law duty of care on the part of a public authority” was re-emphasised by Gummow and Hayne JJ (with whom Gaudron J agreed) in Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 at 212-213. To return to the joint judgment in Brodie , Gaudron McHugh and Gummow JJ castigated (at 572) the once received doctrine relating to non-feasance:

[134] It is apparent that the ‘highway rule’ as it has developed in Australia is an unsatisfactory accommodation of the competing interests. First, the rule operates capriciously and denies equal protection of the law by barring absolutely a remedy to victims of the negligent omissions of highway authorities while other victims of negligent omissions of other public authorities, or of highway authorities in some other legal persona, are compensated in analogous circumstances. Moreover, in the latter class of case, limitation of funds affords no answer by the defendant.

Their Honours stated the true rule in the following passages (at 577-578, 580, 582 – I have omitted some footnotes):

[150] The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the Local Government Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
[151] The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.
[152] In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap.
…
[159] The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger.
…
[165] Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them.

17 In so far as their Honours referred to economic considerations, the comment I have quoted from their remarks at 572 is also relevant. Turning back to the effect of those considerations (at 585), they referred to a remark made by Samuels JA in Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 181 that:

there was at least an evidentiary onus on the defendant to bring into contention the assertion that there were exculpatory economic circumstances which it might adopt as a shield.

In the present case, no detailed evidence was led to suggest the measures discussed earlier in these reasons were financially impracticable, although the proposition was asserted in broad terms. Mr Swan persuasively rejected it, at least so far as a system utilising the supervisors is concerned. Cf South Sydney Council v Walsh [2003] NSWCA 102 at [21]-[23].

18 Counsel for the defendant put an argument that Brodie could not apply to an event in 1998, since at that time the non-feasance rule would have prevented a relevant duty attaching to his client. But this would be to fly in the face of common law principle. The duty defined by the High Court was owed at all relevant times; indeed, in Brodie itself the event held to have the potential to impose liability on a council as a highway authority occurred some six years before Miss Babbage’s collision with the tree in Alison Road.

19 In my opinion, the defendant was in breach of its duty of care by reason of the failure of its road workers, particularly the supervisors, to take any steps in relation to a tree they must have seen, close to the road and showing obvious signs that its stability was compromised, at various times when they must have passed along Alison Road so near to Dungog carrying out road maintenance work during a period of years. The defendant was also in breach of its duty of care by reason of its failure to institute and maintain any system of inspection of roadside trees, in an area prone to storms, other than a system that was purely reactive to complaints. Each of these breaches of duty was, in the legal sense, a cause of the collision, which would probably have been avoided had reasonable care been taken, since the tree would have been removed long before June 1998.

20 These conclusions make it unnecessary to examine in detail the evidence with respect to the additional ground of liability alleged, that an employee or employees of the defendant had seen the fallen tree shortly prior to the collision and left the scene without taking any steps to eliminate the danger, or give warning of it. The evidence for the plaintiff is that of three persons, a Mr Haigh and his two daughters, who were in a car on Alison Road, earlier that evening, when it is alleged a road maintenance truck belonging to the council passed their car travelling in the opposite direction. If their account is correct, and the truck was one of the defendant’s trucks, its driver must almost certainly have seen the tree lying across the road and neglected to do anything about it. But identification of a truck in the moment of its passing, at night, would have been difficult. Furthermore, the description by which it was identified as belonging to the Council was challenged, although not wholly convincingly; no council worker has acknowledged being on Alison Road at the relevant time; and most of those who could possibly have been there have given evidence denying their presence. The major problem about accepting the evidence on which the plaintiff relies is that an electricity authority vehicle was on Alison Road shortly before the collision, according to its driver, Mr Flannery, whose evidence is in serious conflict with the evidence of Mr Haigh and his daughters. No precise reconciliation is possible, but the most likely explanation seems to me to be a confusion about times, and that it was the electricity authority vehicle that was observed leaving what was later the scene of the collision. Of course, if that was so, serious moral blame might well be placed on Mr Flannery, a mature man who said he almost collided with the tree himself (“It was very dark in its trunk and I nearly ran into it”), but the electricity authority was not under the legal duty of the defendant in respect of the road, and in any case it has not been sued. A feeling of discomfort concerning his failure to do anything about the danger, although he was accompanied by an apprentice and had a torch, may be, however, relevant as explaining the otherwise almost inexplicable attitude of Mr Flannery, who has actively sought to persuade some council employees of his view that the plaintiff’s case is unmeritorious, and ignored all requests from the plaintiff’s solicitors to provide a statement which he was quite prepared to make for the defendant. But such an explanation is consistent, rather than inconsistent, with the conclusion that it was his vehicle, and not a council vehicle, that Mr Haigh and his daughters saw. On the whole, although with some doubt, I find accordingly.

21 The defendant pleaded a defence of contributory negligence, relying particularly on the fact that the plaintiff collided with the tree. On this matter, the onus lies on the defendant, which faces the difficulty that there is no evidence of the plaintiff’s speed, or of what may have happened, under the unpredictable conditions existing during a storm, to affect the plaintiff’s driving, in the last few seconds before the impact. But it is known that the trunk of a big tree completely blocked the road, and that it was, as Mr Flannery said, “dark coloured”, so that “it blended with the surface of the road” and “was quite difficult to see”. He himself, driving a Mitsubishi L300 work vehicle, and being conscious of at least two other trees that he had observed to obstruct the road by their fall only a short time before, nevertheless “almost collided with it”. Of course, he was driving in the opposite direction, from which it was suggested there may have been a slightly reduced view ahead, but, having studied the photographs and considered the evidence as to that, I conclude that any difference in this respect would have been minimal.

22 Mr Flannery then engaged four-wheel drive and drove off the bitumen and between the butt of the tree and the fence. After he had proceeded perhaps a kilometre, he passed, he said, “on a blind curve and crest… a small vehicle travelling in the opposite direction”. Although he could not describe it beyond that it was “a small sedan”, it is consistent with his evidence that it was the plaintiff’s Gemini. In his statement made for the defendant, he expressed his belief that this was so, and he said he “considered the speed of the vehicle was inappropriate for the prevailing weather conditions”. When cross-examined about this opinion, he was unable to give his own speed, but said the small car was doing “in excess of 60 kilometres an hour” (the legal speed limit was, as I have said, 80 kilometres per hour). Asked what speed would have been appropriate, he said:

It wasn’t appropriate to be out that night at all… No speed was appropriate.

23 Although Mr Flannery showed himself a meticulous person, who had annotated his statement and corrected it at least twice (to judge by the colours of the ink used), he gave evidence of two matters exculpatory of himself of which it makes no mention. One related to his passing of the car believed to be the plaintiff’s; he said:

Being aware of the tree on the road and concern for the safety of any road users I flashed my lights approximately twice, which I believe is a standard warning signal to motorists – it certainly is in the country.

This, of course, involves an acknowledgment that a warning was needed, but, having regard to his failure to mention it before, the improbability that, on a blind curve and crest, he would have had time to do what he said he did, and the impression made upon me by the witness in giving his evidence, I do not accept that he took this action. The other matter was not only absent from his statement, he did not mention it in chief, but under cross-examination he sought to explain his conduct by saying he “called on my two-way radio” to one Dick Atkins to “try and contact somebody in the shire because I was aware of the danger of the tree, having nearly collided with it”. Neither Mr Atkins nor the apprentice, both of whom might have confirmed Mr Flannery’s account, was called to give evidence. As Mr Flannery declined to assist the plaintiff, it is unlikely her advisers knew of the significance of their evidence. I do not accept that Mr Flannery reported the tree, but his evidence in the heat of cross-examination that he did so by “my two-way radio” does affect his credit and suggest a tendency to depart from the truth in an effort to justify himself, for at another point in his evidence he was asked the question:

You had the two-way radio or not?

and answered

I don’t recall.

24 I am not prepared to infer from the collision of the plaintiff with the tree in the circumstances of this night, nor otherwise to conclude on the evidence, that the plaintiff was guilty of any contributory negligence.

25 I turn to the question of damages. At the time of her injury, as I have said, the plaintiff was a university student aged 21 years. She had just submitted an application to the Department of Education and Training for full-time employment as a secondary school teacher from the beginning of 1999. A senior lecturer in applied arts (dance) at the University of New South Wales gave evidence that she was the “top student academically in [her] intake”, and, while still only in the top half of her year as a dancer, had shown during the course a “huge improvement in her dance ability”. She was, I conclude, a bright, capable young person with every prospect of a good career in teaching, and, as well, the desire and the capacity to engage in some pleasurable and rewarding activities as a performer, probably part-time. She had attended dancing classes since she was four years old. Almost certainly, had the collision with the tree not intervened, her application for employment would have been successful. But her injuries have denied her both the opportunity to perform and, as well, full-time employment as a State secondary teacher. After a long delay during her treatment, the Government Medical Officer reported on 30 August 2002, after referring to her accident:

Health issues have been identified which, in my opinion, would impact on ability to undertake inherent job requirements

and the Department declined her application on 31 October 2002 on the ground of her health. Miss Babbage has not been in any significant gainful employment since her accident.

26 That some four and one half years after her collision with the tree the plaintiff should remain considerably disabled is not surprising. Following the accident, she was taken by ambulance to John Hunter Hospital, Newcastle, with what the treating orthopaedic surgeon, Dr Harrington, called “horrendous injuries”. She had a ruptured liver, transection of the common bile duct requiring the insertion of a drain, perforation of the right hepatic duct, injuries destroying function in the right kidney and causing biliary calculi, many intra-abdominal adhesions and disturbance of vision, contusion of the right duodenum, damage to the pancreas, fractured right femur, fractured right ankle, neck and spinal injuries, and she developed an adjustment disorder with depression and anxiety. The doctor said she “was so sick that she was in intensive care and no one could be certain as to whether she would live or die”, and two years later he expressed the view that, given her abdominal injuries and her fractures, “her recovery will be very lengthy indeed”. She underwent a number of operations including a laparotomy and packing of the liver to control bleeding followed subsequently by a further operation to remove the packing. According to her mother, she was in a coma for the first week, and according to herself her first memories after commencing the journey out of Dungog are of horrifying hallucinations in hospital. After two weeks, she suffered an “overwhelming sepsis”, and she was found to have a right pleural effusion, an intra-peritoneal haematoma and bile collection which required draining, and an intercostal catheter had to be inserted. Discharged after an initial period of two months in hospital, Miss Babbage suffered from severe neck pain requiring traction, and she had pain in the abdomen, as well as the right leg, ankle and back. She also suffered headaches. She required physiotherapy for her neck, right hip, right knee and right ankle.

27 Miss Babbage returned to hospital on 24 October 1998 until 4 November 1998 for an operation to remove a tube and stoma bag and perform an anastomosis between the common bile duct and the duodenum, and then underwent a course of physiotherapy for her neck and ankle, and a long course of counselling to assist her in coping with a reactive depression, for which she still requires treatment with Cipramil. In September 1999 she attended the Commonwealth Rehabilitation Service in Maitland. In February 2000, she began hydrotherapy which continued for two years, and gave some relief to her ankle and neck.

28 In March 2000, the plaintiff was driving a car when she had another accident, the car leaving the road. Although she suffered no physical injury in that accident, apart from soreness, mainly from pressure against her seat belt, a local general practitioner reported “she was distressed”, and the shock of it exacerbated her depression. Nevertheless, I think this setback should not be exaggerated, for in July 2000 she resumed some restricted university studies, and she finally completed her university course part-time in 2002. I do not accept the defendant’s submission that because, perhaps for a moment as the car left the road, the plaintiff “thought she was going to be killed” at the time of the second accident, that accident, which was in truth very minor, played more than a temporary part in exacerbating the depression. On 3 May 2000, she had had a further operation to remove an intermedullary nail from her right femur and a tension band wire from her ankle, that had been inserted in the original surgery. This involved one day in Royal Newcastle Hospital, from which she was discharged on crutches, and about eight weeks of convalescence at home.

29 When Miss Babbage was doing practical teaching, as part of the completion of her university course, she had difficulty demonstrating dance moves, suffered pain, and became exhausted and depressed, although she was only doing it part-time. She has attempted to do part-time work teaching dance in Dungog over the past year, with negligible earnings and at the cost of some pain. She continues to be restricted, both in attempting to work and in daily living, by pain in her neck (affecting also her shoulder and upper limbs), back, right leg, hip and ankle, and also headaches. However, despite her problems of pain and depression, the plaintiff is well motivated, and I do not doubt she will eventually find activities she can pursue, although not at the physical level, nor with any prospect of achieving the rewards, that she could have achieved had she not been injured. At best, there will always be significant limitations upon the activities and occupations that will be open to her.

30 I have not yet discussed the sensitive subject of scarring. Miss Babbage is an attractive young lady, who has been left with multiple scarring. Fortunately, her face is not scarred, except for an inconspicuous scar under her chin. She has a prominent scar extending vertically a distance of 26 cm from her chest to her lower abdomen which Dr Haertsch, a plastic surgeon, has described as “extremely disfiguring”, with, on either side of it, “tram track sutures lines causing gross disfigurement”, another to the side of the abdomen, another on the ankle, one 18 cm long with considerable muscle wastage and a large dint on the thigh, and a red and noticeable one 12 cm long and up to 2cm wide (described by Dr Haertsch as “disfiguring” and “heavily pigmented”) on the right hip. Most of these can hurt at times, the ankle from footwear, and Miss Babbage makes a particular effort to shield her abdomen from knocks. Sexual activity has been a problem because of her embarrassment about her scars, so that, as she put it, when “I am sharing my body with someone there is a period of having to talk about the scar”. She made it clear in her evidence that it is how she perceives other people as reacting to her scars, rather than what she herself thinks about them, that she finds disturbing. But it is apparent she has made a great and effective effort to overcome the problem, which has been “improving with communication”. The difficulty of this achievement is demonstrable from the description of the scarring, of which Dr Haertsch concludes:

She has permanent facial scarring causing minimal cosmetic disfigurement but she has permanent bodily scarring causing disfigurement which I would estimate as being in the vicinity of 40% of the most severe case of severe bodily disfigurement.

There is also evidence that, if she has children, an effect of pregnancy will be to widen the scars on her abdomen and hip.

31 On 4 October 2000, after over two years and three months of treatment, the plaintiff’s condition was reviewed by a psychiatrist of twenty years’ experience, Dr Leonard Lambeth, who is a member of the Mental Health Review Tribunal of New South Wales, a senior lecturer in psychiatry at the University of Newcastle and a senior psychiatrist with the Australian Defence Force. He referred to the fact that she had, in the past, that is, before the accident, suffered from the eating disorders anorexia and bulimia, for which she had been treated by weekly counselling at the University for a period that ended six months before the accident, when all symptoms had ceased. He considered this indicated Miss Babbage was vulnerable to psychiatric disorder, but had “very little” to do with her condition following the accident. That was subsequently exacerbated by the second motor vehicle accident to which I have referred. In his opinion, she had suffered, as a “direct result of the first motor vehicle accident”, both depression of moderate intensity and a post traumatic stress disorder of moderate intensity, for which she would require anti-depressant medication and also psychological treatment. He added:

Unfortunately, she does suffer from fairly constant pain. This will, in itself, constitute a perpetuating factor for her depression and the post traumatic symptoms. If the pain could be relieved, I believe she would be much better.

32 As I have already noted, the plaintiff is, in fact, being treated with Cipramil, which is a strong anti-depressant medication of the kind specified by Dr Lambeth, that is, a specific serotonin uptake inhibitor. From time to time, she also takes Voltaren, an anti-inflammatory, and Panadeine Forte for pain. After being on a waiting list for two years, shortly before the hearing, the plaintiff started a programme at a pain management clinic at the Royal Newcastle Hospital. She had not had time to proceed far with it, but was hopeful of achieving results. However, having regard to the role of pain in perpetuating her depression, Dr Lambeth said in his oral evidence: “I would have to say I would recommend that the Cipramil be used on an indefinite basis”, and he took this view notwithstanding that a major side effect, “particularly in men, but also in females, is one in which they are unable to enjoy in the normal way sexual activity”.

33 In a review for the defendant in May 2002, an orthopaedic surgeon, Prof. Higgs, considered the plaintiff “suffered from multiple abdominal injuries and from significant orthopaedic injuries”, including

a fracture to the right femur, a fracture to the right ankle medial malleolus, and injuries to intervertebral discs at the cervical spinal, thoracic spinal and lumbo-sacral spinal regions.

He concluded “that the orthopaedic surgery has been undertaken with considerable skill”, but:

Unfortunately Miss Babbage continues to suffer from spinal symptoms and from symptoms which can be directly related to the right lower limb fractures and to the right sided post-traumatic trochanteric bursitis.

He considered her “not fit to undertake the full and normal working activities associated with a Dance Teacher”. However, while he therefore thought her “earning capacity will have been reduced by the consequences of her injuries”, he thought she could do some full-time form of dance teaching. But that view has to be tempered by the fact of the refusal on medical grounds of the Department of Education and Training to employ her, and her own evidence of the difficulties she met with in attempting even part-time teaching. I do not accept that she will be able to pursue dance teaching full-time. Prof. Higgs himself advised against her undertaking “any working activity, recreational activity, or household activity that is known by her to aggravate her symptoms”. Other medical opinion suggests there is a real risk various of her injuries may affect her further in the future. Dr D Jensen, a neurosurgeon who also reviewed the plaintiff for the defendant in mid-2002 reported:

With respect to the cervical spine, there is evidence of disc degeneration and bulging at two levels, and I consider that the motor vehicle accident is likely to be responsible for this injury, and the symptoms which she is experiencing in the upper limbs. … The overall prognosis is good in relation to her neurological and psychological health, with the reservation that her cervical spinal problems could present a long-term problem, but it is appropriate that they be treated conservatively at this time.

34 Prof. Ghabrial, an orthopaedic and spinal surgeon who is Director of the Department of Orthopaedic Surgery at Royal Newcastle Hospital, referred to “the high possibility of developing post traumatic osteoarthritis in the right knee and right ankle”. He expressed in mid-2002 the opinion:

I am not optimistic about her future employment. I believe that her problems are likely to deteriorate over the years due to the development of degenerative changes. I believe that the prognosis is quite poor, taking into consideration her neck, back and right lower limb injuries.

Prof. Ghabrial was called to give oral evidence, but nothing in that evidence detracted from these views. Indeed, with regard to the plaintiff’s neck, he referred to the C5-6 and C6-7 segments, and said that

[f] urther MRI scanning performed on 6 August 2002 showed the development of osteoarthritic changes in these two affected segments.

The scanning had been done because Miss Babbage had come to see him “as her symptoms got worse regarding the neck”, and he considered her condition was a development from the injuries to the discs. He thought there was a “30% to 50% chance it will deteriorate further. If that happens in the neck, it will probably be a one in three chance to need surgery.” The likely time at which such a deterioration is to be feared is the plaintiff’s mid to late thirties. At one stage during the hearing, it appeared that Dr Dan, a neurosurgeon, took a gloomier view of the plaintiff’s neck, but after reviewing relevant scans, Dr Dan retreated from that view, and on the whole, I prefer the opinion of Prof. Ghabrial.

35 As for the thoracic spine, Prof. Ghabrial said the T11-12 disc was also injured, and he considered it “will give her pain, but it is unlikely it will require surgery”. Because it is a highly mobile disc, it is likely to develop problems earlier, but the treatment consists principally of exercises, perhaps with analgesics.

36 The plaintiff’s problems in the lumbar area, he thought, were probably due to soft tissue injuries, but are likely to persist.

37 As regards the right leg, Prof. Ghabrial was of the opinion the knee has a 40 per cent chance of developing arthritic changes, possibly requiring surgery, and the ankle has “a higher chance of developing arthritis, but a lower chance to have surgery”.

38 To complete the picture of the continuing effects of the planitiff’s injuries, it is necessary to refer to some other matters. The general surgeon who operated in respect of her abdominal injuries, Dr R W Sillar, pointed out that Miss Babbage was left with intra-abdominal adhesions “with increased risk of complications such as small bowel obstruction”, and it was possible she would have “biliary strictures in the future with the likelihood of sepsis and the formation of calculi”. With regard to the loss of the function of one kidney, the very expert opinion of Dr R H Farnsworth was that

the literature does suggest some increase in the incidence of hypertension in the long term follow-up with patients with single kidneys.

And the plaintiff’s treating general practitioner in Dungog, Dr Melville, has observed “gastro-intestinal symptoms” associated with the effects of her internal injuries on her gall bladder, which was shown to be “contracted” in an abdominal ultrasound scan. Dr Melville considers Miss Babbage “clearly suffers from major physical disability as a result of her motor vehicle accident”.

39 A number of circumstances call for a very substantial award of general damages in this case. Not only was the plaintiff extremely seriously injured, she was injured in many areas of her body, and many of her injuries have had lasting consequences. She has endured much pain over a long period, and the best medical science can offer her is help in its management. That should not be minimised, and there is ground for confidence that Miss Babbage is the kind of person who will find a viable path forward and follow it successfully. She will not do so, however, without very considerable suffering and difficulty. She has lost all chance of any kind of performing career, part-time or full-time, after training for it from the age of four, and she has also lost the full-time career as a teacher that was open to her. As she was about to grasp the fruits of her years of university studies, they were largely reduced to nothing in her hands. Although I think she will find some occupation within her capacity, she will always be handicapped by pain and disability. Her recreations have changed from those of an active and athletic girl of 21 to those of one anatomically restricted and at risk of very possibly becoming even more arthritic. Her self-image, which, in view of the concentration of her hopes and dreams for her future on so physical an art as dance, was necessarily bound up with her slim and agile body, has been marred by physical defects and unsightly scarring. In my opinion, for the consequences of her injuries that are other than economic an appropriate award of damages is the sum of $140,000. Interest should be added, calculated on half this sum, at two per cent from 23 June 1998 to the date of judgment.

40 Out-of-pocket expenses are agreed at $20,000, to which should be added provision for future treatment. That provision is required for expenditure on medicines (such as Cipramil and analgesics), medical review and measures which may be prescribed, such as physiotherapy, as well as for the possibility that further care may be required, such as counselling or surgery. Indeed, at the time of the hearing, the plaintiff was still undergoing treatment at a pain clinic. It is not practicable to cover all these matters by some precise calculation, but in my opinion a fair and reasonable sum to allow would be $12,000.

41 The plaintiff’s loss of earning capacity must be reflected in an allowance for the past and an allowance for the future. As regards the past, the weight of the medical evidence supports the proposition that Miss Babbage’s injuries and their consequences were severe enough to justify her substantial inability to earn income for organic reasons aggravated by an attributable psychiatric condition. Also, I should record that, having heard the plaintiff’s evidence and considered it in the light of the expert evidence, I am satisfied she has not exaggerated her problems, but on the contrary should be accepted as a witness of truth. To the extent that in the more recent portion of the period up to the hearing she has diverted her residual capacities towards activities aimed at her own rehabilitation, including the completion of a university course that should have ended by the end of 1998, I find this was a reasonable response to the situation in which she was placed by the gravity of her injuries. At the date of the conclusion of the hearing, she was not yet in a position to earn any significant income, and would have required retraining in some field making less physically stressful demands upon her than dance teaching before she could be expected to do so. Accordingly, and in view of my conclusion that she would, but for her injuries, have been employed from the beginning of the school year in 1999 as a dance teacher, and would also have engaged in some part-time work utilising her skills as a dancer, probably in performance, she should be allowed a sum calculated as representing the loss of the opportunity to exercise those capacities, as she would have exercised them, to the date of judgment. A sum to represent this loss up to 30 June 2002, estimated by expert accountants at $119,704, was placed before the Court on behalf of the plaintiff, and counsel for the defendant agreed that the mathematics were correct. However, he contended that the plaintiff had not fully exploited her “retained earning capacity”. I have explained that I do not accept this qualification, and I consider the calculation should be adopted, subject to the addition of a further sum assessed on the same basis to complete the period to judgment. Interest should be added, calculated in the normal way, as to which I understand counsel are agreed.

42 An amount must also be calculated to represent the plaintiff’s loss of earning capacity for the future. That is perhaps the most difficult aspect of the assessment of damages in this case. As I have said, I am satisfied the plaintiff is well motivated and will, in time, find some pursuit within her residual abilities. Both sides accept this, but senior counsel for the plaintiff argues the loss should be reflected in a calculation based upon a net reduction of earning capacity of $250 per week to age 65, with a deduction of 15 per cent for vicissitudes, whereas counsel for the defendant urges the figure should be in the range $100 to $150 per week, with a deduction for vicissitudes of 25 per cent. Both sides draw attention to the plaintiff’s pre-accident potential as a performer, the plaintiff’s counsel to support an extra earning capacity that has been lost, the defendant’s to support his contention that the deduction for vicissitudes should be higher than usual because of the greater strain imposed on a dancer’s physique by comparison with the stresses of a more usual occupation. However, if one sees the long term earning potential of the plaintiff, uninjured, as depending more on steady full-time employment as a teacher than upon part-time work in her youth as a performer, I do not think the case calls for any increase in the usual deduction. The capacity to earn extra by performance is not a negative, but a positive, feature of the plaintiff’s pre-accident potential. Bearing in mind the “huge” progress Miss Babbage had made at university, together with her academic performance, I consider she had above average career prospects. Some of the qualities which gave her those prospects will, of course, enhance her remaining capacity, but a further period without earnings, or with small earnings, would be likely to be involved in any retraining for less physically demanding employment. I must also take account of her evidence that it was her desire to marry and have children. Doing the best I can to balance all the factors, I have concluded that a calculation based upon a loss of $200 per week to age 65, with the usual deduction of 15 per cent for contingencies, would be appropriate.

43 Calculated figures, based on the amounts allowed for past and future economic losses, should be added to take account of the plaintiff’s loss of superannuation entitlements. I understand counsel are agreed as to the method of carrying out these calculations.

44 The plaintiff also claims for domestic assistance, relying, inter alia, on a report of a qualified occupational therapist, Fiona Lyon, who examined a considerable number of the medical reports and visited Miss Babbage to assess her home situation on 4 April 2002. Mrs Lyon concluded that the plaintiff required the provision of ongoing domestic assistance to overcome her physical difficulties caused by her injuries to the extent of three hours per week at a cost of $30 per hour. She also suggested that various items should be installed in the plaintiff’s home to relieve some of those difficulties. The defendant disputes the whole of the sum of $6000 claimed in respect of the items suggested. It referred Mrs Lyon’s opinion about the need for domestic assistance to Prof. Higgs, the orthopaedic specialist whom it called to give evidence, but did not seek his views on the claim for items of home equipment. Prof. Higgs endorsed Mrs Lyon’s opinion about the need for domestic assistance. So far as the home equipment is concerned, in the absence of a reasoned refutation, I think I should accept Mrs Lyon’s assessment of the position as indicating some provision is reasonably required, but I consider a fair allowance would be $3000.

45 Domestic assistance is more difficult. The plaintiff’s mother has provided much help, including in the period since the end of August 2000 something like nine hours per week, and a claim is made in respect of this assistance upon the principle of Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327. The defendant’s submissions accept that three hours per week, as assessed by Mrs Lyon, would be reasonable from then on and for the future. On the whole, and smoothing out the wrinkles of weeks in which more or less might have been or might be required, I think an allowance based on Mrs Lyon’s figures would be appropriate for the whole period from 31 August 2000 and into the future for the plaintiff’s life expectancy. In making that broad provision over the whole period, I do not think I should reduce any part of it to differentiate between the services that have been provided by the plaintiff’s mother and those that may be provided in the future commercially, or between services provided in Dungog and services required elsewhere. Nor is it appropriate to reduce the amount to be calculated on this basis for the future by some percentage related to the vicissitudes of life. That is because the limiting factor is the statistical expectation of life which takes account of both favourable and unfavourable contingencies: Sharman v Evans (1977) 138 CLR 563 at 587; Bresatz v Przibilla (1962) 108 CLR 541 at 546; Luntz on Assessment of Damages for Personal Injury and Death, 4th Ed (2002) at para 6.4.4 and footnote 126. As it is put by Luntz (ubi supra):

[I] n most instances there will be no need to apply any discount at all to the head of damages relating to the costs of future care.

46 For past domestic and other care required by the plaintiff’s condition over the period to 31 August 2000, substantial claims are put forward on her behalf, varying for different periods according to changes in her situation from time to time. While she was desperately ill in intensive care in hospital for the first two weeks, and again when, shortly afterwards, she returned to intensive care, hovering between life and death with what was described as an overwhelming sepsis, her mother maintained a constant vigil at her bedside to provide what support she could, and gave her devoted nursing attention. For the seven weeks from 23 June 1998, a claim is made assessed on the basis of 500 hours at $30 per hour. Then for two months at home, much of it confined to bed, the plaintiff claims on the basis of 40 hours per week of care from her mother, and (after her period in hospital again in October) on the basis of 17.5 hours per week up until August 2000.

47 As to these periods, the defendant submitted that the hours claimed were excessive and the commercial rate of $30 per hour should be reduced for a Griffithsv Kerkemeyer claim. In addition to Griffiths v Kerkemeyer itself, reference was made to VanGervan v Fenton; Grincelis v House (2000) 201 CLR 321; and Kars v Kars (1996) 187 CLR 354. The defendant contended the assistance of the plaintiff’s mother was not reasonably required during the period of hospital care between 23 June 1998 and 22 August 1998; that after the plaintiff’s discharge from hospital, six hours per day for eight weeks was “appropriate”; thereafter, until 3 May 2000, two hours per day was “appropriate”; that from then till 30 June 2000, six hours per day was “sufficient”; and thereafter three hours per week was “appropriate”. The rate, it was argued, should be allowed at $15 per hour.

48 So far as concerns the rate, I do not think the defendant’s argument can stand with Grincelis v House, where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (at 327), in their joint judgment, that damages in respect of care and services provided gratuitously for an injured plaintiff should be determined “generally, by reference to the market cost of providing them”. Nothing about this case suggests to me it should be treated as an exception.

49 So far as concerns the number of hours to which the commercial rate should be applied, I do not accept the defendant’s contention that no services were reasonably required to be provided by the mother within the hospital, simply because the hospital had nursing staff to do what was needed. In the condition in which the plaintiff was at and following her admission, something more was quite reasonably called for and was provided by her mother. However, it is extremely difficult to disentangle the hours spent in that way from the many hours when the situation was really beyond practical activity, and the mother was struggling, at her daughter’s bedside, to live through her unconscious or semi-conscious battle for survival with her. I do not overlook the point made in Baldwin v Lisicic (unreported, Kirby P, Priestley and Meagher JJA, 20 April 1993) that it may be appropriate to take account of a “real need … to have … gratuitous care constantly at hand”. See Henderson v Campbell [2002] NSWSC 1202 at [41]. Doing the best I can to allow what fairly falls within the principle of Griffiths v Kerkemeyer, while leaving aside hours spent, however lovingly and even agonisingly, in other ways, I am satisfied that a fair and reasonable assessment of the amount to be allowed to the plaintiff for the period from 23 June 1998 to 22 August 1998 should be calculated on the basis of 100 hours at $30 per hour. For the remaining periods up to 31 August 2000 I accept the submission of the defendant as to the hours to be allowed, while applying the same rate of $30 per hour.

50 Counsel for the plaintiff seek an award under the heading of interest upon the amounts allowed, in respect of the past, for care and domestic services. In Grincelis v House, the High Court held that it was appropriate, pursuant to a section equivalent to s94 of the Supreme Court Act 1970, to allow an amount calculated as interest upon an amount awarded for the past under Griffiths v Kerkemeyer, and to do so at commercial rates of interest. In making the calculation, it is appropriate to apply Practice Note 92 and Schedule J to the Rules: see Grincelis v House at 330-331.

51 It will be observed that, with respect to a number of heads of damages, I have stated my conclusions as to the way the amount to be allowed should be arrived at without doing the actual calculation. That is because counsel were agreed that the only formal order I should make, upon publishing these reasons, should be one directing the bringing in of short minutes. Counsel have undertaken to make the required calculations to enable the final verdict to be entered then, as well as an appropriate order in respect of costs. I direct that the plaintiff bring in, on a date to be fixed, short minutes to reflect these reasons, and at that time I shall hear any argument concerning costs.

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Last Modified: 06/20/2003