Beck v State of New South Wales

No judgment structure available for this case.

Reported Decision:
[2001] NSWSC 278
[2001] ACL Rep 135 NSW 23
[2001] ACL Rep 300 NSW 31

New South Wales

Supreme Court

CITATION: Beck v State of NSW & Anor [2001] NSWSC 278

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC NR600015/98

HEARING DATE(S): 30-31 January, 1-13 February 2001

JUDGMENT DATE:
18 April 2001

PARTIES :

David Robert Beck (Plaintiff)
State of New South Wales (1st Defendant)
Perisher Blue Pty Limited (2nd Defendant)

JUDGMENT OF: Studdert J

COUNSEL : D. Wheelahan QC/G. Radburn (Plaintiff)
J. Maconachie QC/G. Laughton (1st Defendant)
D. Nock SC/R. Beasley (2nd Defendant)

SOLICITORS: Baker Mannering & Hart (Plaintiff)
I.V. Knight (1st Defendant)
Colin Biggers & Paisley (2nd Defendant)

CATCHWORDS: NEGLIGENCE - plaintiff injured in activity in snowfield - first defendant in charge of excursion of school children and plaintiff a trainee teacher engaged to assist in caring for children - whether first defendant owed duty of care to plaintiff and, if so, whether breach of duty causing harm - defences of volenti non fit injuria and of contributory negligence. NEGLIGENCE - second defendant lessee or licensee of area where injuries suffered - whether second defendant owed plaintiff duty of care and, if so, whether breach of duty causing harm - defences of volenti non fit injuria and of contributory negligence. DAMAGES - injuries resulting in quadraplegia - consideration of relevant heads of damage.

LEGISLATION CITED: Motor Accidents Act
Workers' Compensation Act
Law Reform (Miscellaneous Provisions) Act

CASES CITED: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Barisic v Devenport (1978) 2 NSWLR 111
Burnicle v Cutelli (1982) 2 NSWLR 26
Fitzgerald v Lane (1989) 1 AC 328
Halsbury's Laws of Australia (1994) Vol 19 at 300-140
Insurance Commissioner v Joyce (1948-49) 77 CLR 39
Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638
Roggenkamp v Bennett (1949-50) 80 CLR 292
Sullivan v Gordon [1999] NSWCA 338
Sutherland Shire Council v Heyman (1984-85) 157 CLR 424

DECISION: See para 308

INDEX

Paragraph number

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 18 April 2001

600015/98 DAVID ROBERT BECK v STATE OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HIS HONOUR: David Robert Beck was the victim of a tragic accident on 2 September 1995 at a time when he was twenty-one years of age. He suffered a fracture of the fifth cervical vertebra and severe spinal cord injury in an accident on a snow covered mountain slope near the Blue Cow Mountain ski centre in the Kosciuszko National Park. The plaintiff was then a trainee primary school teacher, in his third and final year of a course of study at the Southern Cross University at Lismore. He was gaining practical experience at Ballina Primary School and he accepted the opportunity of accompanying two teachers employed at that school, two parents and fifty-six children on an excursion that eventually led to the group’s presence on the mountain side where the plaintiff was injured.

2 The plaintiff has sued the State of New South Wales as first defendant and Perisher Blue Pty Limited as second defendant, alleging that company to be the lessee, or, alternatively, the licensee, of the area where the accident occurred. Each defendant has been sued in negligence. Against the first defendant, the plaintiff has alleged the existence of a duty of care arising by reason of the circumstances of the plaintiff’s participation in the excursion and a breach of that duty in the circumstances in which the injuries were sustained.

3 In the statement of claim the plaintiff also alleged negligence against the first defendant by reason of the alleged breach of duty of the New South Wales National Parks and Wildlife Service, but this claim was not pursued. The plaintiff alleged that the second defendant owed to him a duty of care by reason of its occupation and control of the Blue Cow ski centre area and of the accident area and a breach of such duty in the circumstances of the plaintiff’s accident.

4 Each defendant has denied negligence and has raised the issue of contributory negligence as well as a complete defence based upon the alleged voluntary assumption of risk by the plaintiff. A further issue raised on the pleadings by the second defendant was the exclusion of liability under the conditions of entry stated on the second defendant’s form of ticket for Blue Cow, but this issue was not pursued.

THE CIRCUMSTANCES OF THE ACCIDENT

6 The teachers who participated in the excursion were Messrs Bryan Lyndon and Ross Atkins. The parents were Mrs Lynette MacDonald and Mrs Nancy Milne. Mr Lyndon gave evidence and so too did Mrs MacDonald but neither Mr Atkins nor Mrs Milne did so. None of the children who participated in the excursion was called as a witness.

7 It was the plaintiff’s evidence that he was not exposed to any expense in respect of his participation in the excursion which took the party to various places and eventually to the place where the accident occurred. Accommodation, meals and the price of entry to exhibitions from the time that the party left Ballina were provided to the plaintiff without cost. He said he did not pay to enter the snow fields and he was provided without charge with snow gear, being a waterproof jacket and pants. He said, and I accept, that the two teachers were in charge of the excursion.

8 The plaintiff said that on the way to Blue Cow the party stayed at a motel at Berridale where an earlier excursion group from the same school had stayed. That group had left behind a number of real estate “For Sale” notices, one of which was tendered as an exhibit. The exhibit is unremarkable, being of typical polished cardboard or plastic fabrication. The various notices were placed in the bus used by the excursion group and were conveyed to the ski fields to be used as toboggans. When the bus arrived at Bullock Flat all, or nearly all, the school children in the party were issued with notices and the plaintiff and the teachers had notices as well. These notices were carried on to the train that took the party to the station at Blue Cow. (Exhibit O depicts several of the children in the train and part of two of the notices I am satisfied were typical of those taken to the mountain.) The notices were carried from the train at the station at Blue Cow and the party proceeded by stairway to the upper of the two levels there. Then the party went out on to the snow and eventually to the location where the plaintiff was injured. The plaintiff said that there was a fresh cover of snow on the ground and that this cover was ankle deep. I accept the evidence that the plaintiff gave as to all of the above matters I have reviewed.

9 The plaintiff said that Bryan Lyndon pointed out to him where on an excursion the previous year tobogganing had occurred and he told the plaintiff that “We are going to ride the signs down the side there.” The group headed to that place which the plaintiff said involved a walk of approximately one hundred to two hundred metres across a level area, although he later agreed with Mr Nock after being shown certain photographs that the distance was much further. The evidence satisfies me that the plaintiff’s concession was correct. The second defendant’s Exhibit 1 is a photo showing the area where the accident happened and I am satisfied from what Mr Lyndon said and on the whole of the evidence that this area was approximately one kilometre away from the tube station.

10 The plaintiff said that Mr Lyndon and himself were at the head of the group when they reached the area where Mr Lyndon pointed out the slope and the take-off point, which was then above them. The plaintiff agreed in cross examination that this slope was a moderate one. Many photographs were introduced in evidence depicting the slope in question and features of it. The first defendant’s Exhibits 1B, 1C and 1D show the slope, and so too do the second defendant’s Exhibits 1, 2, 3 and 4. Mr Buckland’s report, Exhibit B, also has a number of photographs of the slope attached to it, although these were taken in the month of October 1996 and I am not satisfied that they afford an appreciation of the extent of the snow cover in early September of the previous year. Whether the balance of the photographs to which I have referred present a completely accurate picture of the cover when the plaintiff was injured I am unable to determine. Mr Lyndon thought the snow cover was different (T250). The photos he was shown were taken the day after the accident, and it is possible therefore that conditions had altered somewhat by then. However I treat the photos as affording some sort of guide to conditions on the previous day.

11 The plaintiff said that it was necessary to walk up to the take-off spot pointed out by Mr Lyndon. The plaintiff said that he did this and he used the “toboggan” he had with him, a “toboggan” that had no rope or attachment to it, and he proceeded on it head first down the slope. He said that the snow was quite thick to start with but, as more passages were completed through this snow by the plaintiff and other members of the party, the track became faster as the snow compacted. The plaintiff said that the children were going down the track and then walking back up the slope in Indian file and that this went on for twenty minutes. The plaintiff estimated the slope as one of about twenty metres, although photographs introduced later in cross examination would suggest that the length of the slope was greater. After some twenty minutes, one of the children went over to another take-off spot one to two metres further to the left looking down from the top of the slope. The plaintiff said he was with this child and decided to go down first. He said that this new track had more fresh snow on it at the take-off point and was probably a touch steeper. Looking down the intended track, there was to be a point at which it would join the track earlier used so as to create in effect a Y intersection.

“Well I went down, pretty much joined back on to the other track. It was quite icy and I started to skewer towards the right. As I skewered towards the right I could see a tiny shrub, I was heading for that and trying to move the sign to steer away and it didn’t work. All that was very quick. A branch, I tried to duck my head, hit my head, tumbled over a few times and that was it. I couldn’t move. I knew straight away with the pins and needles I couldn’t move.”

13 The plaintiff went on to say that he travelled “a fair way” beyond the Y junction after rejoining the original track but “gradually started skewing towards the right…”

14 Bryan Lyndon gave evidence that he and Mr Atkins were in charge of the excursion. He defined the plaintiff’s role as being that of “a parent helper to help supervise the children and help out with any other duties.” He agreed that he pointed out to the plaintiff where they had gone the previous year and that he said “Let’s go over to that slope.” His evidence was that the group did have the estate agent signs, and he said that the school first came into possession of them a year before, when they were left in the snow by a group of students from another school. The signs were used by Mr Lyndon’s group in a similar excursion to Blue Cow in 1994 and they had been used at Blue Cow by another group from the same school the week before the plaintiff’s accident. That group was also supervised by teachers from Ballina Primary School. Mr Lyndon said that he slid down the slope on a sign, as did the students and the plaintiff. He said “It seemed a nice slope to be sliding down.” He estimated the length of the slide as being forty metres and I prefer that estimate to the one given by the plaintiff and referred to earlier.

“a little bit steeper”

“joined on to the other track”

“Q. What then happened to the activity, to your observation?

A. I was at the bottom of the slope. He took off from the same point. Joined onto the other track, went down the slope a little bit further and slid sideways.

Q. And slid sideways, in which direction apropos the earlier track?

A. To the right.

Q. That from his perspective or yours?

A. His perspective.

Q. What did you notice then about him, or what happened to him?

A. To the side of the slope there looked like a small bush and David went towards it. He ducked his head to go under it, I assume, and he rolled away from the bush.

Q. And I think your initial reaction was he was skylarking, rolling away?

A. At first.

Q. That didn’t last for long though?

A. No, couple of seconds.

Q. Then you realised he had been injured, and seriously so?

A. Injured, yes.”

16 It is to be observed that Mr Lyndon’s account as to the circumstances in which the plaintiff was injured accords in material respects with the plaintiff’s account and I am satisfied that the plaintiff did sustain his serious injuries when he struck a rock positioned behind a small bush as shown in the first defendant’s photos Exhibits 1B and 1C. The obstruction is circled in the photographs. Where Mr Lyndon’s account differs from that of the plaintiff is in the number of slides undertaken from the second position.

“just to check to see if it was sort of okay and safe”

“At some stage one student wanted to go down from a steeper take off point. David was near that student who was Scott Frost. I saw David go from the new point and I went down from there, next. David and some of the children moved along the ridge of the slope and it was an area where the ride would have become slightly steeper and would have joined onto the track they had made by going down from the first position and was only a short distance from this position.”

18 It was put to Mr Lyndon that he was conveying in the above passage that the plaintiff was injured after he took off from a third position but Mr Lyndon said that this was not what he was intending to convey.

19 In this one respect, namely how many slides were undertaken from the new position, I prefer the plaintiff’s recollection, which I found to be convincing, to that of Mr Lyndon. I think it more probable than not that the plaintiff was injured on the first attempt to slide down the slope from the position to which the student had drawn the plaintiff. Whatever be the explanation for Mr Lyndon’s differing account, I do not find such account to be correct.

20 Mrs MacDonald, the accompanying parent who gave evidence, said that there was on this expedition “practically one sign for each student” . I accept that this was so. Mrs MacDonald said that she was sitting on some rocks some distance away from where the signs were being used when the accident was reported to her and her evidence does not add to the evidence reviewed as to the circumstances in which the plaintiff was injured. The accident occurred at a position which Mrs MacDonald assessed to have been two hundred metres from where Mrs Milne and herself were sitting watching some of the children playing.

THE CASE AGAINST THE FIRST DEFENDANT

22 Mr Wheelahan submitted that the facts established the required proximity in the relationship between the plaintiff and the first defendant as to give rise to a duty of care by the first defendant towards the plaintiff. I was referred to the much cited statements of principle in the judgment of Deane J in Sutherland Shire Council v Heyman (1984-85) 157 CLR 424 at 497-498. I am satisfied by the evidence that the requisite proximity has been established, that the first defendant did owe to the plaintiff a duty of care and that it breached such duty.

23 The evidence establishes that the plaintiff was asked to participate in the excursion in the circumstances and for the purposes that emerge from the evidence earlier reviewed. The first defendant gave the plaintiff the incentives to attend the excursion by covering all his expenses, providing for his accommodation and snowfield clothing and by facilitating his absence from university to attend on the excursion. The plaintiff’s presence was required so as to provide what those responsible for the conduct of the excursion perceived to be the requisite supervision of the children to be accompanied. As Mr Lyndon acknowledged, and as I find, Mr Lyndon and Mr Atkins were in charge of the excursion, and the plaintiff was called upon to accompany them to the accident site, and to assume a role in looking after the children in the activity for which the first defendant selected such site. I find he was encouraged, and indeed expected, to participate with the children in the activity on the slope, and for this activity he was provided with an advertising sign to be used as a makeshift toboggan.

“Q. How did you regard it, that is, your attendance at the excursion, from the point of view of your career?

A. I saw it as a great opportunity to attend, looking at it from an organisational point of view and just from working with the kids and just seeing what went on an excursion as such.

Q. Did you foresee it as having any advantage to you?

A. For sure.

Q. What did you foresee as the advantage to you of going on the excursion?

A. I think that potential employers could you see that I had been on the excursion and had been involved in the organising of the excursion.”

25 It was the first defendant which selected the location and the activity which took the plaintiff to the place where his accident occurred, and it was the first defendant which provided the sign to be used in the activity.

26 Expert evidence was introduced from two sources directed to the issue of liability. This evidence was provided by Mr Buckland and by Mr Gow.

“…the dangers inherent in tobogganing stem from the lack of directional or steering control available and also the lack of braking available.

A flat bottomed mat or toboggan, such as the signs used in this instance, will inevitably follow the steepest fall line down a slope, descending under the influence of gravity. It may, however, be caused to veer or bounce off course on bumps or undulations that cannot be avoided due to the lack of steering, but it could generally be expected to hit whatever it was aimed at on the way down the slope.”

“…the slope chosen and used by the school excursion party was unsuitable for tobogganing activities. There were visible obstructions in the form of trees and rocks in the run-out area at the bottom of the slope, as well as large rocks on either side and the small tree and rock struck by the plaintiff.

In addition, the icy conditions that are said to have been revealed on the tobogganing track, once the fresh snow had been worn from that surface, would have increased the speed of descent for the riders and also the risk of injury when hitting an obstruction.”

29 The second defendant tendered a report from Mr Gow, who has thirty-four years experience in the ski industry. The report was admitted as the second defendant’s Exhibit 12 and the author was not ultimately required for cross examination. Mr Gow visited the accident scene on 30 September 2000. He reported that he was led to believe that no modification to the terrain had taken place, although, of course, the snow conditions would in all probability have been different on the occasion of his visit. However, it was not suggested that the terrain had changed over the years since the accident and the assumption upon which Mr Gow reported was not challenged.

“Should one plan to toboggan or otherwise slide on snow, the choice of slope is paramount to maintain the least possible hazard to participants. A sliding slope should be:

i) Open and clear of obstructions

ii) No more than 15 to 20 meters of vertical drop

iii) A gradient of 10 to 50% (4.5 to 22.5 degrees). Pitches over 25% (11.5 degrees) should be of short duration

iv) Leading onto a long flat or upsloping runout, also clear of any obstructions

v) Wide enough to provide a dedicated ascent route

vi) Under the supervision of a person knowledgeable in snow based recreation

It is notable that the slope on 5 September 1998 met none of the above criteria. In contrast, it had:

i) Many visible rocks, boulders and snow gum trees both on and adjacent to the slope

ii) A vertical drop in excess of 25 meters

iii) Slope angles of up to 100%, and sustained slope angles of approximately 58%

iv) No runout area

v) Insufficient width for a dedicated ascent route

vi) No supervision by a person knowledgeable in snow based recreation”

“Without handles or ropes, the participants found it necessary to lay prone, head forward, in order to grip the front of the sign and to keep the leading edge from digging into the snow. This is an extremely hazardous position as the risk of serious head or spinal injury is obviously much greater in the event of collision with other people, objects or obstructions. Sliders in this position will find it very difficult to maintain a proper view forward, as it is necessary to crane one’s neck back in an uncomfortable position.

It is impossible to influence the direction of travel of a flat plastic sheet once sliding. It will travel straight down the fall line, with no question of manoeuvrability. The only possible way of avoiding obstacles or hazards below is to choose a line at the outset which will not lead you to them, or to bail out prior to reaching them.

The sliding devices commercially available for sale and hire at the time were of a plastic dish design on which the participant would sit feet forward, upright in the back. With this design, proper visibility is maintained and one’s feet are ahead. These sleds have moulded runners in their sliding surface which may provide some directional stability. It was both inappropriate and dangerous to provide real estate agents signs to children and others for the purposes of sliding on snow.”

32 I accept what Mr Buckland and Mr Gow have stated in the passages above recorded. Their evidence satisfies me on the balance of probabilities that the area to which Mr Lyndon and Mr Atkins took the excursion party was not suitable for tobogganing and that the use of the signs as make-shift toboggans was altogether inappropriate for the reasons identified by Mr Buckland and by Mr Gow. Further, the evidence satisfies me that the plaintiff was given no instruction or warning concerning the activity upon which the party engaged upon the mountainside. I am also satisfied that the first defendant failed to provide the knowledgeable supervision identified by Mr Gow as being required.

“Toboggans strictly prohibited at Blue Cow Mountain.

Toboggan slopes located at Perisher and Smiggins.”

34 That this sign was present on the lower level of the centre at the relevant time was admitted by the second defendant on the pleadings and the hearing proceeded upon this basis.

35 There was no such sign on the upper level of the centre to which the party proceeded immediately after leaving the train. I accept that neither Mr Lyndon nor the plaintiff was aware of the sign displayed at the lower level. I accept the evidence that Mr Lyndon gave that had he seen a sign prohibiting tobogganing he would not have permitted the activity to occur and I am satisfied that had he seen the notice which was displayed he would not have allowed the use of the signs in the manner in which they were used.

“Q. Just while we are dealing with that, did you yourself, have any experience in the snow fields?

A. A little.

Q. Was that gained on the other excursions you had had with the school?

A. Yes.

Q. You were not a skier?

A. No.

Q. Had you ever tobogganed before?

A. No…

Q. Did you have any idea at all, when you went down to the snow fields for instance, as to how these real estate agents signs would behave on the snow fields?

A. Only from observation the year before.

Q. Only from what you had seen the year before. That right?

A. Yes.

Q. Did you have any idea for instance, how you could steer these boards?

A. I’m not sure.

Q. You are not sure. Did you have any idea about how you actually physically for instance, put yourself on the board?

A. Yes.

Q. How did you do that?

A. You lay on it.

Q. Yeah, prone. That’s face down?

A. That’s one way.

Q. How had you found that out?

A. Observation the year before and when we partook in it the year before.

Q. Nobody had said anything to you about it at all?

A. No.

Q. Tell me, were you aware whether Mr Atkins had any experience in the snow?

A. Only from previous excursions.”

37 Accepting as I do the evidence recorded above, it seems to me that Mr Lyndon lacked the necessary experience to appreciate the risks associated with the activity initiated by him. Mr Lyndon’s evidence suggests that Mr Atkins was no better qualified to consider such risks.

“Q. Just let me suggest to you this Mr Lyndon, standing where the photographer was standing, in the large photograph that you have. Can you look at the photograph and the slope of the land. Do you say that you didn’t have to be careful about what you were going to do down that slope?

A. No.

Q. Do you say that there was nothing in that slope, looking at the photograph there, that posed any sort of danger to anybody? You are shaking your head. You have got to answer.

A. No.

Q. Did you recognise any danger there at all?

A. No.

Q. After the accident, did you think again about that?

A. Yes.

Q. There was a danger wasn’t there?

A. I didn’t think so.”

“1.3

Conduct of Excursions

(3)

Supervision

Before the planned excursion is undertaken principals are to ensure that precautions are taken in relation to the safety of the participants and that supervision will be adequate in relation to the number of students, their maturity, anticipated behaviour and the activities planned…

Where it is considered necessary, the site of the proposed excursion should be assessed beforehand to identify potential problems or dangers and to determine the level of supervision necessary to avoid the risk of injury.”

40 Mr Campbell, who has been the overall principal of the school where Mr Lyndon was engaged, gave evidence that the above protocol would have been available to Mr Proudfoot, who was in de facto charge of the primary school in 1995 and who had the delegated responsibility to approve the excursion upon which the plaintiff was injured. The excursion should not have been undertaken without proper attention to the protocol requirements set out above and the assessment which the protocol required ought to have been conducted by a person or persons with appropriate expertise. Plainly, Mr Lyndon did not have the necessary expertise in the snowfield, and neither, it would appear, did Mr Atkins. This ought to have been apparent to Mr Proudfoot. I find that due inquiry and planning for the purposes of the excursion would have alerted the relevant school staff to the hazards associated with the activity on which the plaintiff was injured and that it is unlikely had there been the necessary inquiry and planning that the relevant activity would have taken place. Indeed, a simple telephone call to the second defendant would be likely to have alerted the school staff to the prohibition against tobogganing, and I accept Mr Lyndon’s evidence previously referred to that had he been aware of the prohibition he would not have allowed the activity (T217).

THE CASE AGAINST THE SECOND DEFENDANT

42 The second defendant was, at the time of this accident, the lessee of the Blue Cow Mountain ski centre and the area defined in a schedule to the lease which incorporated a plan defining the boundaries of the leased area. The lease became Exhibit L. In addition, the second defendant was the licensee of adjoining land being an access area between Blue Cow and Guthega ski resort areas. The licence agreement, described as a Link Management Unit Licence, became Exhibit M. An issue arose as to whether the plaintiff met with his accident in the area the subject of the lease or the area the subject of the licence. The area covered by the licence is described in the licence agreement as “J7”, and the leased area has been described in evidence as “J6”.

43 Mr Burns, a surveyor who made an inspection of the location of the accident, identified that spot sufficiently on the ground but was unable to determine where it occurred in relation to the boundary between J6 and J7. Fundamentally, the inability to do so arose from the fact that the plan attached to the lease defining the boundaries of J7 has such boundaries ill-defined because the definition lines placed on the plan are too thick.

“Q. What does the boundary, as shown in Ex L, that is on plan A, translate to in terms of what you would find on the ground at Blue Cow Mountain?

A. Very little, nothing. It is a statement of intention between the two parties to be followed up by putting pegs on the ground which would unambiguously define the boundaries of that agreement.

Q. Looking at the western boundary of plan A locating the site of the accident, as you did, where were you left with regard to whether or not that site as located was within or without the boundary?

A. As I mentioned earlier, unfortunately I consider that the site of the accident is either under the line or very close to it, and I don’t think I have sufficient information from this plan to make a decision.”

45 Mr Burns said that there is no rule of surveying protocol or practice that to determine the edge of the boundary one looks at the outside of the line drawn as indicative. The plan attached to this lease shows ill-defined boundaries, the location of which, according to Mr Burns, cannot be ascertained within 20-60 metres.

46 Viewed as a whole, Mr Burns’ evidence does not permit a finding more precise than that the accident occurred in the leased area or somewhere within 20-60 metres of it, or “very close” to the boundary.

47 Mr Nock called a cartographer, Mr Hogg, whose report became the second defendant’s Exhibit 10. Mr Hogg prepared his own map, having had resort to eight different maps for the purpose of doing so. He concluded, by a process described in his report and further explained in his evidence, that the plaintiff’s accident happened at least sixteen metres west of the position of the thick “boundary” line in the plan attached to the lease. This would have placed the accident as occurring in the licensed area.

48 Having considered the evidence of these two witnesses, I am unable to determine with precision where the accident occurred in relation to the boundaries of the leased area. Objection was taken to the introduction of the evidence given by Mr Hogg and, having reflected upon the competing submissions, it seems to me that the better view is that it is inappropriate to go outside the lease and its annexed plan for definition of the boundaries of its “demised premises” the area the subject of the lease. Even if it is proper to heed the opinion reached by Mr Hogg, I am still not persuaded, having regard to the evidence of Mr Burns, that it is more probable than not that the accident occurred in the area covered by the licence, Exhibit M, in any event. I find that I am unable to determine whether the accident happened within the leased area or outside it.

49 Mr Wheelahan submitted that this is of no consequence in relation to the plaintiff’s case against the second defendant. In my opinion, this submission is correct, for the reasons advanced by Mr Wheelahan. He submitted that the plaintiff’s case did not depend upon proving that the accident occurred on the leasehold land. What mattered was what occurred on the leasehold land prior to the accident. He submitted, and I find, that the necessary requirements for proximity were satisfied and that a duty of care was attracted in the second defendant towards the plaintiff. This was so because the second defendant accepted the plaintiff for reward as a passenger in the ski tube from Bullocks Flat to Blue Cow and once there it accepted him on to the skifields where no boundary line was defined to indicate the point at which the second defendant’s lease ended and its licence began. The second defendant was in a position to exercise, and acted to exercise, a measure of control over visitors upon arrival at Blue Cow as indicated by the various notices posted at and in the vicinity of the ski centre at Blue Cow. These notices included, significantly, the notice which prohibited tobogganing but which notice was displayed only at the lower level.

“After some consideration we have decided on this course of action because of the lack of a suitable area for tobogganing in close proximity to the Blue Cow Terminal Building. Also some of the terrain close to the terminal building is quite steep and rocky. We have found that tobogganists are wandering to these areas and using dangerous slopes. The task of constantly patrolling them is almost impossible.”

51 The letter went on to record that the plaintiff had been seriously injured during the 1995 snow season whilst tobogganing in one of those areas.

52 The relevant lease in relation to Blue Cow commenced in June 1985 and the second defendant ought to have known of the hazards recognised in the above extract from its letter well before the plaintiff’s accident. Indeed, I infer that such knowledge probably prompted the erection of the sign prohibiting tobogganing which was in place in September 1995.

53 I accept the submission advanced by Mr Wheelahan that the second defendant ought to have displayed adequate notice at and about the terminal building. To have only the one relevant notice in place at the lower level was inadequate to discharge the second defendant’s obligation, because it was reasonably foreseeable that entrants might chose to ascend the internal stairs at the terminal building without becoming aware of that notice. The evidence of the plaintiff and of Mr Lyndon satisfies me that this is what happened on 2 September 1995. There ought to have been a notice prominently displayed at the upper exit level of the building to attract the attention of those who, having left the ski tube, proceeded upstairs within the terminal building, and the second defendant has admitted that there was no such sign displayed.

54 I do not consider that anything turns upon whether the activity being undertaken ought strictly to be termed tobogganing or not. I am satisfied that a notice prohibiting tobogganing would have sufficed to convey that the use of the real estate signs as make-shift toboggans was prohibited. Mr Lyndon’s evidence was to that effect and his evidence satisfies me that had a notice prohibiting tobogganing been observed at the terminal building the activity employing the use of the signs would not have been pursued. Moreover the plaintiff’s evidence was that he would not have engaged in the activity had he seen a sign prohibiting tobogganing.

55 Mrs MacDonald, to whose evidence I referred earlier, said that after the group left the terminal there was a meeting outside it when the children were given instruction. Mr Lyndon and the plaintiff gave evidence to the like effect, and I accept that there was such a meeting. Mrs MacDonald said that she heard a male person say “Bring the signs back with you because we don’t want them on the mountain when the snow melts.” Whilst I accept that Mrs MacDonald heard a statement to this effect, the evidence falls short of establishing that it was an employee of the second defendant who spoke. There is, however, evidence which invites the conclusion that the defendant, through its employees working at the terminal, knew that the group of children had arrived at the terminal carrying the prominent real estate signs. The plaintiff said that beside the exit to the terminal there was a glass walled office and that there were people inside it working behind a desk. There was, so far as the plaintiff could see, nothing to prevent those people from observing the group of which the plaintiff was a member.

56 The conclusion is inescapable that this group would have been very conspicuous and anyone observing the group could not have failed to observe the prominent real estate signs. It seems to me that it is proper to draw the inference that the second defendant through its employees working in the office became aware of the arrival of the party with the signs. Further, it seems to me to be likely that those in the office would have appreciated the intended use of the signs. I accept Mr Wheelahan’s submission to this effect and his further submission that in the circumstances the second defendant through its employees working at the station ought to have warned the teachers in charge of the group that tobogganing was prohibited and that the signs ought not to be used for such purpose. I am satisfied on the evidence that no such verbal warnings were given, and I am satisfied on the evidence that the group remained in, and in close proximity to, the terminal building for a time more than sufficient to have afforded the opportunity to the second defendant to give appropriate warning.

57 Further, I consider it likely that those operating the second defendant’s ski tube would have observed this large group carrying the signs onto the train. It seems to me that the opportunity must have presented itself to those controlling the operation of the ski tube to give appropriate warning. It is to be observed from the second defendant’s letter already referred to that a measure intended to be implemented in the 1996 season was not to allow toboggans on the ski tube past the Perisher station. That a decision to implement this measure was taken in 1996 evidences the practicability of the precaution which equally could have been taken in 1995, but which the second defendant did not take.

THE PLAINTIFF’S CONDUCT

The defence of voluntary assumption of risk

59 Both defendants rely in this case upon the defence of voluntary assumption of risk. In the ninth edition of Fleming - The Law of Torts , the learned author remarked (at p 328) that the defence, in cases other than of express waiver, “is now but rarely successful” . Nevertheless it remains a defence to an action in negligence, as has been recognised by the legislature when it has seen fit to make express provision for the exclusion of its operation in claims attracting the provisions of the Motor Accidents Act , 1988 (s 76(1)) and the Workers’ Compensation Act , 1987 (s 151O).

60 The onus of proving this defence is, of course, upon the defendants.

Insurance Commissioner v Joyce

Roggenkamp v Bennett

Halsbury

Halsbury’s Laws of Australia

“It is a defence to an action in negligence if the defendant can prove that the plaintiff knew of and voluntarily accepted the risk of suffering injury or damage as a result of the defendant’s negligence. However, it is not sufficient for the defendant to prove that the plaintiff ought to have known of the risk, or that the plaintiff merely perceived the existence of danger. The defendant must establish that the plaintiff:

(1) was fully aware of the risk;

(2) fully comprehended its nature and extent; and

(3) voluntarily accepted the whole risk.

The defence cannot succeed where the plaintiff was under any form of compulsion to accept the risk. The question whether the plaintiff’s acceptance of the risk was voluntary is generally a question of fact and the answer to it may be inferred from his or her conduct in the circumstances. A person cannot be taken to have voluntarily assumed the risk of negligence on the part of another merely by engaging in a sport or pastime, even if the sport or pastime is inherently dangerous, or by accepting or continuing in employment even where such employment is inherently dangerous…”

62 The defendants have submitted that it has been established that the plaintiff was fully aware of the risk he undertook in attempting the last slide, that he fully appreciated the nature and extent of the risk in doing so and that he voluntarily accepted such risk.

63 Consideration of this submission commands very close attention to the evidence which the plaintiff gave.

“Q. Had you ever ridden a toboggan before?

A. No.

Q. Did you consider the activity that was about to the embarked on as hazardous, or dangerous?

A. No.”

65 The plaintiff first engaged in the activity using the sign in the knowledge given to him by Mr Lyndon that the students had used the signs in the same location in the previous year. He was also aware the signs had been used by another group of children from Ballina in the week before his accident.

66 The plaintiff said that the activity was undertaken from the one point for about fifteen to twenty minutes and that the track became faster and faster as the snow compacted and that it was after that that one of the children moved across to the other location from which the plaintiff set off on the slide in the course of which he collided with the rock.

“Q. Did you see any danger ahead of you on that track?

A. Not really. It was probably a touch steeper where the other part was, but not a hell of a lot steeper.

Q. And fresher snow?

A. Fresher snow.”

“Q. Did you receive any advice about any aspect of the sliding down the hill on the advertising sign that you were about to engage in?

A. No, there was [not] much instruction given to us at all.

Q. Any warning?

A. No, no warning.

Q. Any prohibition?

A. No.”

69 It was certain of the responses which the plaintiff gave in the course of cross examination upon which reliance was placed in advancing the volenti defence.

70 When cross examined about his recollection of the area where the accident happened, the plaintiff agreed that the word “moderate” was an apt description of the nature of the slope. He agreed that he observed that there were boulders, including a very large boulder on the right hand side of the slope looking up from the point where Mr Lyndon first indicated the slope to him, and he could also see a number of boulders on the left. The plaintiff was then shown a number of photos which were tendered in evidence in the first defendant’s case. The plaintiff was cross examined on these photographs and what was depicted in them, particularly the photographs that became first defendant’s Exhibits 1B and 1C. The plaintiff agreed that looking up the slope as depicted in the photograph Exhibit 1B a very large rock, which was later marked with a cross, was plainly obvious and that so too were the rocks apparent at the bottom of the slope. He agreed that to walk up to the spot from which he and the party commenced to slide it was necessary to walk very close to those rocks on the left hand side and that he would have had to walk past and very close to the rock and the little tree circled on photograph Exhibit 1B. This smaller rock behind the tree was, of course, the rock with which the plaintiff collided.

71 The plaintiff was cross examined about the view from the position of the photographer for the purposes of photograph Exhibit 1C. This was a view looking down the slope and in this photograph the large rock was again marked with the cross and the tree with the smaller rock behind it was again marked with a circle. The path taken from the first sliding position, and the plaintiff went from there three or four times, he said was “pretty much straight down the middle” (T121). The plaintiff said that when he slid from the first position he could not remember passing “too close” to the large rock marked X, as to which he said it would have been “five or six feet” away. The smaller rock behind the tree would have been further away, “a lot more” (T118). The plaintiff agreed in cross examination at T121 that it was obvious that if he were to come into collision with obstacles shown in the photograph that he would do himself some injury.

“it wasn’t hugely different but it was slightly different”

“My memory is a little bit hazy but from what I remember it was back and to the left a bit”

“Q. As you stood in the place in which you [were] contemplating making this slide to make the second track because the land sloped from left to right because it was steeper and because you were higher you knew, didn’t you, that the course that you must take took you in a direct line to rocks X and O. You knew that, didn’t you?

A. I wouldn’t say I knew it would take me that way.

Q. You knew, as you told us yesterday, that when you got on the board gravity worked to take you down the hill, didn’t it?

A. I guess I assumed it would take me to the place we were going before, yeah.

Q. But you were starting from a different point, higher and steeper, weren’t you?

A. It was a different place, yeah.

Q. And as you looked down the hill what was directly in front of you from the position at which you were standing?

A. Was a slope in front of me.

Q. Were the rocks X and O. They were directly in front of you, weren’t they?

A. Yeah, they were, but also there was a lot of kids walking up and down that slope as well. I wouldn’t have definitely wanted to be ploughing into them, that’s for sure.

Q. But you knew from the first course you had taken once you got on the board the shape of the land and the steepness of the hill controlled where you went?

A. I knew I was going down the hill that’s for sure.

HIS HONOUR: Q. You what?

A. That I would be going down the slope but I thought from this position, slide towards the track and follow the previous track down to where the bottom of the slope we had finished on the other occasions.

MACONACHIE: Q. But that would have required you to make a turn, wouldn’t it, a turn to the left?

A. I didn’t think that at the time. I didn’t contemplate that.

Q. You only had to look to see that that was so, didn’t you. You had to make a turn to the left in order to get on to the track that was the first track?

A. Yeah. I thought I would just go down that track and down the hill.

Q. But you knew, didn’t you, it was obvious that you had to turn to the left in order to get onto the track. You knew that from your experience. You knew that from what you could see in front of you?

A. Yeah, I can see what you are getting at, yes.

Q. But it was obvious, wasn’t it, in order to get on the first track there had to be a turn to the left. It was obvious?

A. I thought the path of the track would take me down that way.

Q. You told Mr Wheelahan yesterday the second track that you intended to create would come into the first track in a Y formation. You told him that yesterday, didn’t you?

A. Yes, that’s right.

Q. In order for it to come into a Y formation rather than an X formation you had to make a turn to the left, didn’t you?

A. Yeah, but it was gradual. The Y wasn’t like it wasn’t turning sharply down the hill. Down the hill there is no sharp slopes that’s for sure.

Q. But in order for you to make a Y configuration of the two tracks rather than an X configuration there would have to be a turn to the left. That’s obvious, wasn’t it?

A. Yes, okay, yeah.”

“Q. And it was obvious to you that if you made an X configuration of the two tracks rather than a Y that you would place yourself in a position where you might collide with either rock X or rock O?

A. It was X it would have been, yes.

Q. And you knew from the first four slides that you made that once you were on your way you had no control over the sign on which you were sliding. You knew that, didn’t you?

A. Well, there is some control because the track had been formed by us remained as you went down the hill.”

“Q. You agreed with Mr Maconachie that in the photograph you could see those things he put to you?

A. Yes, that’s right.

Q. Do you recall making any observation of that tree and that rock described there before you went up?

A. No.

Q. Later on at p 112 he asked you if the snow was in the same condition as shown in those photographs. ‘You couldn’t help but miss those rocks as you looked up the slope’ and you said ‘that’s right’. Do you recall that?

A. Yes.

Q. Do you recall making any observation on the day of your accident of any rocks or hazards on that slope?

A. No, not totally, no.

Q. Mr Maconachie had you mark his exhibits with an X and a zero. You recall that the first being a big rock and second a smaller rock with a bush connected with it. Do you recall that?

A. Yes.

Q. Do you recall making any observation of that rock with the bush connected with it at any time before your accident?

A. No.

Q. Ultimately, it turned out that it was with this rock that you collided, is it not?

A. Yes, it is.

Q. And as you approached it on your descent were you aware or a rock connected with that bush as you described it?

OBJECTION (MACONACHIE). ALLOWED.

Q. Were you?

A. No. All I was aware of, tried to duck under a branch and hitting something very solid.”

“Q. As you were about to embark on the run that led to your injury, did you perceive any risk to yourself in undertaking that journey?

A. No, I didn’t see any at all.”

“Q. Mr Maconachie asked you some questions about the second track that you were about to embark upon before you sustained your injury and he asked you whether you knew it was steep and you said that you did.

A. That’s right, yes.

Q. Did you regard that as posing a risk?

A. No, I didn’t see it as a risk.”

“Q. He also put to you that you knew, in order to join the first track, that is the one created by you and others, that you would have to cross over the ridge created by the formation of the first track?

A. Yes, that’s right.

Q. Did you regard that as posing a risk to you?

OBJECTION (MACONACHIE). ALLOWED

WITNESS: No, I didn’t see it.

HIS HONOUR: Q. How high was this ridge that was created?

A. Not very. It was pretty soft.

Q. Could you tell me in millimetres, centimetres, inches, feet?

A. About a foot.

Q. Both sides of the track?

A. Yeah.”

“Q. He said to you, this is Mr Maconachie, that lying face down on the advertising sign it was obvious to you that if you hit something you would hit it with your head. Remember him putting that to you?

A. Yes.

Q. Had you considered hitting your head?

A. No, not at all.

79 The plaintiff gave evidence, to which I referred earlier and which I accept, that had he seen any signs forbidding toboggans in the area where he was injured he would not have taken part in the activity on the slope.

80 I have set out fairly extensively passages of the transcript in the plaintiff’s evidence, appreciating that all such answers have to be viewed in the context of the whole of the plaintiff’s evidence on the issue of liability.

81 The plaintiff was twenty-one years old at the time of this accident. The two teachers in charge of the excursion were present at the slope and Mr Lyndon certainly participated in the activity on it. Each of these teachers was perceived by the plaintiff to be in his late thirties or “forty maybe” and neither cautioned against restricting the use of the notices to any particular area. Mr Lyndon, for his part, said he did not see any risk of injury from the second take-off point.

82 I observe generally as to the evidence that the plaintiff gave that I found him to be a very truthful witness indeed. His answers were forthright and I perceived him to be completely honest.

83 Mr Maconachie submitted that in the circumstances and at the time that this accident happened, the first defendant owed to the plaintiff no duty at all. This was because the plaintiff was a mature person who was a very competent sportsman with skiing and surfing knowledge who had an appreciation of obstacles and the harm that they could cause. He had had ample opportunity to evaluate the conditions on the slope and that by the time he undertook the last slide he knew all that he needed to know about the hazards of that undertaking. Any obligation to warn or to instruct had been discharged and no further duty was owed to him. That submission I reject. I am satisfied that the plaintiff was owed a continuing duty of care for so long as he was on the slope for the purposes of the excursion and under the control of Mr Lyndon and Mr Atkins. I am also satisfied that the first defendant breached its duty in the ways that I considered earlier in this judgment.

84 Nor am I persuaded that the defendants have made good the defence of voluntary assumption of risk. Accepting as I do the truthfulness of the plaintiff’s responses that invite a contrary conclusion, the defendants have not proved that the plaintiff was fully aware of the risk, having a complete understanding of its nature and its extent. Further the defendants have not proved that the plaintiff voluntarily accepted the risk. I do not consider that the plaintiff was alert to the risk of colliding with the rock he struck, or that he was alert to its presence, at the time he set off down the slope.

CONTRIBUTORY NEGLIGENCE

86 Each defendant submitted in the event that the defence of voluntary assumption of risk was not proved, the evidence established that the plaintiff was guilty of contributory negligence, and indeed Mr Maconachie submitted that if the first defendant was found to be blameworthy, the plaintiff was equally culpable.

87 Did the plaintiff fail to exercise reasonable care for his own safety?

88 I reviewed earlier the plaintiff’s experience as a sportsman and his limited experience on the snowfields. That experience included the journeys earlier undertaken down the slope on the real estate sign. Whilst the plaintiff said, and I accept, that he did not think about this, he ought to have appreciated from his previous experience that once he began to slide he was dependent upon the forces of gravity. He could not steer the sign, nor could he arrest its fall. The plaintiff was aware of the presence of obstacles beside the track first used and he was aware that to strike a rock travelling head first could cause him injury. It seems to me that in the exercise of reasonable care the plaintiff ought to have appreciated that in sliding from the new and higher spot with the intention of joining the track earlier made, there was a risk that the sign would not then follow the earlier track but pass through it or leave it, so as to encounter any obstacles in the general direction which the sign was facing at the point of commencement. Further, I am satisfied that by reason of his earlier journeys up and down the slope, he ought to have become aware not only of the large rock marked X on the photo being first defendant’s Exhibit 1C, but also of the tree sheltering the small rock circled in that photograph, and of the small rock itself, and of the risks they might present should the sign not follow the earlier track but pass through it or leave it. Whilst it is to be recognised that it is easy to be wise with the benefit of hindsight, it seems to me that the plaintiff did not attend to what he was about to do before setting out on the final slide with that degree of care required of the reasonable person acting in the interests of his own safety, and I am satisfied that this lack of due care contributed to the harm suffered.

APPORTIONMENT OF FAULT

90 For the reasons expressed, I have found each defendant to be negligent in a causative sense and the plaintiff to have been guilty of contributory negligence. Therefore the question of apportionment must be addressed.

91 Section 10(1) of the Law Reform (Miscellaneous Provisions) Act , 1965 requires that I determine, having regard to what I perceive to be “just and equitable” , to what extent “the damages recoverable…shall be reduced having regard to the plaintiff’s share in the responsibility for the damage” . The plaintiff’s share of responsibility is to be assessed against the totality of the negligence of the defendants: see Barisic v Devenport (1978) 2 NSWLR 111 and Fitzgerald v Lane (1989) 1 AC 328.

92 In all the circumstances I have reviewed, it seems to me to be just and equitable that the damages which the plaintiff would otherwise have recovered should be reduced because of the finding of contributory negligence by twenty percent.

93 This brings me to the apportionment issue between the defendants. Each defendant cross claimed against the other, seeking contribution or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act , 1946, but neither defendant limited its cross claim to this.

94 In its cross claim against the second defendant, the first defendant also pleaded breach of insurance and indemnity provisions contained in the deed of lease, Exhibit L. However, for the purposes of its cross claim, the first defendant bore the onus of proving that the plaintiff’s accident happened at a location that attracted the operation of the provisions of the lease. As earlier recorded, I have been unable to determine where the accident occurred in relation to the boundaries of the leased area, and the first defendant has not therefore established that the provisions of the lease pleaded in the cross claim have been enlivened because of where the accident occurred. Indeed, Mr Maconachie did not seek to argue to the contrary in the course of his thorough final submissions.

95 The first defendant further pleaded in its cross claim breach of the terms of the contract under which the excursion party entered upon Blue Cow Mountain. According to the particulars in the cross claim, this contract was partly oral and party written and the writing was particularised as being contained “in a receipt and a ticket or tickets issued to the first defendant’s agent, Mick Endres.” The contract was denied in the second defendant’s defence to the cross claim, Mick Endres was not called, and no attempt was made by the first defendant to prove the receipt or the terms of any ticket or tickets relating to the entry of the party into the ski tube or on to Blue Cow Mountain. Once again, Mr Maconachie addressed no final submissions to the contract pleaded in paras 5 and 6 of the first defendant’s amended cross claim.

96 For its part, the second defendant in its cross claim pleaded reliance upon the terms it claimed to be implied in the licence agreement, Exhibit M. The land to which this licence related adjoined the land the subject of the lease, Exhibit L. The second defendant bore the onus for the purposes of its cross claim of establishing that the accident occurred within the licensed area. Just as I am unable to determine whether the accident occurred in or outside the leased area, so too am I unable to determine whether the accident occurred in or outside the licensed area.

97 Moreover, Mr Nock did not, in his final submissions, seek to present any argument as to why the implied terms pleaded ought to be regarded as terms of the licence, nor did he seek to rely upon the licence for the purposes of the cross claim.

98 Accordingly it seems to me, assessing the evidence presented, that the proper approach to the issue of contribution as between the defendants is to determine the competing cross claims as claims pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act , 1946, bearing in mind the findings in negligence I have previously expressed as against each defendant.

Barisic v Devenport

DAMAGES

100 The plaintiff was born on 13 February 1974. He is presently twenty-seven years of age.

101 The plaintiff did not lose consciousness after this accident but immediately experienced loss of feeling. He was taken down to the first aid centre at Blue Cow Terminal and then to the medical centre. From there he was transported to Cooma Hospital and then to Prince Henry Hospital where he came under the care of Associate Prof Jones in the Spinal Injury Unit. The plaintiff was found to be a high level quadraplegic with all the tragic consequences of this condition.

102 The plaintiff was in Prince Henry Hospital for a period of approximately six months, being discharged on 7 June 1996. Two days after his admission on 6 September 1995 the plaintiff underwent surgery in the nature of a decompression and spinal fusion procedure from C4 to C6. It was noted on operation that there was a burst fracture of the fifth cervical vertebrae and there was a fragment compressing on the spinal cord, tearing the cover of the cord and allowing leakage of cerebro-spinal fluid. An MRI scan on 6 October 1995 indicated generalised oedema and spinal cord damage in the area from C3 to C7. The plaintiff remained in intensive care for approximately two months and for some seven weeks he was unable to breath without the aid of a ventilator. A tracheotomy tube was in place until late November 1995.

103 A number of reports were tendered from Prof Jones and it is possible to summarise briefly from these reports the plaintiff’s progress from the time he was discharged from intensive care until his ultimate discharge from hospital in June 1996. The plaintiff was managed in the acute spinal unit where his neurogenic bladder and bowel required intensive therapy. Various medications were required for the management of the bladder and for bowel care. Ultimately the insertion of a supra pubic catheter was necessary. The plaintiff experienced spasms and this compromised his mobility in a wheelchair. Eventually the spasms were controlled by the use of Baclofen inserted intrathecally by means of a pump.

104 Whilst the plaintiff was in Prince Henry Hospital he experienced an episode of dysreflexia which happily was quickly brought under control. There have been a further three such episodes since the plaintiff’s discharge from hospital.

105 There have been many medical reports tendered in evidence. It is unnecessary to review them all because there really can be, and there is, no dispute about the nature of the injuries suffered or the resultant disabilities.

“David has been in reasonable health. He has a limited ability to feed himself. His bowels are managed by oral faecal softeners and second daily bowel care, and his bladder is managed by suprapubic catheterisation which is changed each month by a community nurse. He has had no symptomatic urinary tract infections, although there are occasional sensations of achiness and increasing spasm for which he will be treated with oral antibiotics. These episodes occur about once every three months. His skin has generally been good although he did have an ulcer under his right forefoot. He had an episode of dysreflexia once during the last year which required admission to hospital and his symptoms at that time were a thumping headache. He said that the episode was caused by a kinked catheter.”

“David is essentially dependent on virtually all personal care on others and whilst he might clean his teeth, he doesn’t bother, although he might be capable of doing it with an electric toothbrush. He doesn’t shave himself and he is dependent on others for washing, drying and dressing. He would be capable of accessing a telephone if it were appropriately set up.”

108 I observe that during the hearing I noted that the plaintiff when in Court showed a very limited ability to grip with the right hand. The plaintiff told Dr Buckley in October 1998 that he could pick up a biscuit or a piece of paper if it was placed in exactly the right place in his lap. However, I accept that the plaintiff needs the assistance of others to eat and to drink and he drinks with a straw from a cup when the cup is held before him. There were many instances during the trial when the plaintiff needed a drink and he demonstrated a dependence upon his carer to hold a cup in front of him so that he could drink from a straw.

“David has attendant care for 2½ hours on enema days and for 1½ hours on other days. His parents will put him to bed and this takes about half an hour. His cooking is attended to by his mother and clothes washing and housekeeping are done by the Homecare personnel. Shopping is done by his mother and the gardening by his mother and father. Transportation is undertaken by parents, carers or friends.”

“I noted again loss of pinprick sensation from the high shoulder level on the right and the low shoulder level on the left. Elbow flexors were to about 4 out of 5 bilaterally; wrist extension was 3+ on the right and 0 on the left. There was no other function in the upper limbs. He could abduct his shoulders to about the horizontal position. There was no marked spasticity but there was some clonus in the legs.”

“There has been no deterioration in his function and his requirement for personal care assistance remains unchanged. His need for continuing review is as described and there have been some complications in his spinal cord management which were predictable and are within the prescription of an average of two weeks per year admission to hospital for the management of those various complications, and for the management of his suprapubic catheter and implanted Baclofen pump.

There have been no significance changes in his status since last seen and in particular there has been no improvement nor deterioration. His condition is stable and there will be no improvement with respect to his quadriplegia. There will be a need for vigilance to ensure that his medical condition remains stable and there will be intermittent complications along the lines described.

He will have intermittent urinary tract infections, an occasional episode of dysreflexia and there may be episodes of decubitus skin ulceration. I have described my findings on ‘Physical Examination’ confirming a high level quadriplegia with essentially a C5 level with a little wrist extension. This extension of the wrist unfortunately will not enable David to be an efficient driver of a motor vehicle and he will therefore require transportation within the community. I have opined as to his ongoing care requirements. He will need review by his spinal specialist at yearly intervals and on average will need to see a general practitioner about four times per year. I have described his various admissions to hospital for dysreflexia and chest infection. There have been no other incidents which would affect his level of disability. His condition is permanent and his prognosis for life expectancy is normal less 10-15%.”

“has no sensation in the perineum and would obtain no psychogenic erections, nor would he be able to have any normal form of sexual intercourse with orgasm. The efficient use of the sexual organs is therefore zero.”

113 I accept that assessment. Prof Jones adverted to the plaintiff’s need for sexual counselling and assistance in fertility issues.

114 The evidence satisfies me that the plaintiff can hope for no improvement in his condition in the future. This accident has undoubtedly had far-reaching consequences for the plaintiff who, before the accident occurred, was a fit and healthy young man who was extremely interested in and competent at a variety of sports. The plaintiff’s major interest was in cricket and he played at first grade level at Ballina for a number of years. However, his sporting interests were not restricted to cricket. He played tennis and rugby league and he coached in cricket and also did some part time coaching in tennis. Other sporting interests he pursued included touch football, he rode a push bike and he jogged regularly and extensively. The plaintiff attended gymnasium and he swam and he surfed. The nature of the injuries and resultant disabilities have been such of course as to prevent him from pursuing any sporting activities, although remarkably he has continued to coach at the Ballina Cricket Club.

Acupuncture

227 Exhibit A6 comprises a report from Mr Hagan of the Shenmen Clinic. According to Mr Hagan, whose report is dated 8 December 2000, he has been giving the plaintiff treatment over the course of the past four years. The plaintiff’s evidence was, in short, that he has found the acupuncture beneficial.

Provision for future medication and pharmaceutical requirements

Future cost of Baclofen pump surgery

230 Dr Buckley considers the Baclofen pump will require revision every five years and this will, of course, involve surgery. Dr Buckley’s costs are contained in his report dated 29 May 2000. Each procedure will cost $13,961. The figure of $77,280 claimed is calculated on a life expectancy of forty-nine years. For reasons earlier expressed, I consider the calculation requires adjustment to allow for the lesser life expectancy.

231 Mr Maconachie has submitted it should be discounted also to allow for the possibility that the procedure is not required as often as every five years and also for the possibility that the procedure may be carried out at a lesser cost in a public hospital. I am not attracted by those submissions. It seems to me that whilst it is possible the procedures may occur less frequently than every five years, it is equally possible they may occur more frequently. Dr Buckley has expressed an expert opinion supporting procedures every five years and I am persuaded by Dr Buckley’s evidence, including the reasonableness of his costings.

Future cost of child care

233 The plaintiff makes a claim for the cost of care which would have to be provided for any children he may have. This claim is advanced upon the basis that the plaintiff has two children assumed to be born on 13 February 2004 and 13 February 2009 respectively, and what is sought is the cost of rearing such children until the younger child completes his or her schooling in November 2026. The claim is costed on the assumption of live-in care until the younger child goes to school and then on a live-out basis for five hours per day whilst such child is at school, and eight hours per day when such child is not at school. The claim is costed at $904,762.

234 It is to be observed at once that had the plaintiff not been injured the probability is that he would have been at work during the day pursuing his vocation as a teacher. Indeed, I have reflected this probability in the allowance for loss of earning capacity. The plaintiff would not have been in a position therefore to care for any children whilst he was pursuing his teaching duties. This claim also ignores the role that the mother of any child would play in providing care.

Sullivan v Gordon

Burnicle v Cutelli

Sullivan

“reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children.”

“conduct in having children, even if it could be objectively viewed as unreasonable, was caused by the respondent’s negligence and consequently there was no break in the chain of causation.”

236 If the plaintiff in the present case was to have children, it could not be said that his conduct in doing so was caused by the respondent’s negligence, but by his own deliberate subsequent conduct. Would this break the chain of causation?

Sullivan

“An injured plaintiff’s own need for personal care includes changing needs occurring throughout his or her lifetime. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor’s door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law.”

238 The question left unanswered in Sullivan does not, in my opinion, however arise in the present case because of the findings and for the reasons which I will now state.

239 The evidence given by the plaintiff and his parents satisfies me on the balance of probabilities that it was the plaintiff’s wish before this accident to marry and to have a family. I also accept the evidence which the plaintiff gave that he would still like to marry and have children.

240 However, if the plaintiff was to marry, the evidence is clear that he would be unable to have “any normal form of sexual intercourse with orgasm” (report of Prof Jones, 28 February 1997). Prof Jones then went on to state that the plaintiff required “sexual counselling and assistance in fertility issues” . Later, in May 1997, Prof Jones reported that the plaintiff “will need fertility assistance probably by in vitro fertilisation” , but whether the plaintiff is capable of fathering a child by such a method has not been addressed further in the evidence.

Malec v J.C. Hutton Pty Limited

Future cost of a computer

“[The plaintiff] should have a computer for recreation and potentially for his work.”

“I propose that Mr Beck be provided with computing facilities in view of his poor mobility and therefore limited access to information outlets. The computer should be fitted with up to date software and operating systems to maximise access to the Internet and will also require a modem for that purpose. In addition, the computer should have CD-ROM facilities and colour printer attached. Software for voice operated functions of the computer should be provided.”

243 Those expressions of opinion I accept and I have earlier made reference to the plaintiff’s computer use in the preparation of web site designs. I am satisfied that there is a compensable need to be addressed for the future, and I accept, as Ms Lukersmith reported on 10 September 1998 (Exhibit A1), that the plaintiff will require computer hardware and software upgrades in the future.

244 A report from Graeme Smith of Ability Technology, forming part of Exhibit A20, provided costings of the system he recommended for the plaintiff, and adopting his figures, the cost of providing the plaintiff with computer equipment for forty-nine years has been costed at $295,000.

245 The defendants do not challenge the mathematics reflected in the above figure, but it is submitted that it should not assumed that the plaintiff will use computer equipment for the rest of his life. Moreover, the costings assume replacement of equipment at very regular intervals. In the case of hardware, what is contemplated is changeover periods ranging from 2.5 years to four years; in the case of software equipment, the costings contemplate changeovers of items occurring every two to three years.

246 Mr Maconachie has submitted I should allow only $200,000 for computer costs with the above considerations in mind.

247 I confess that I have not found this item easy to address. The changeover periods contemplated seem very frequent, but Mr Smith was not required for cross examination. On the other hand, I have not allowed for the plaintiff deriving earnings from his computer after the age of forty-five years and I do not think it likely that the plaintiff will experience the need for changing equipment as frequently in his later years.

The claim for increased holiday costs

249 A claim is made for the additional costs that the plaintiff must incur when on holidays. The evidence plainly establishes that the plaintiff would be unable to go on holidays without the assistance of two carers.

250 The plaintiff claims $381,753. This claim is calculated on the basis that it would be reasonable to provide for the plaintiff the increased costs associated with a trip to Europe in the immediate future and further trips to that destination every ten years and, in addition, the increased costs of holidays to Melbourne every second year.

251 I am satisfied that provision should be made in the plaintiff’s award for increased costs that will be incurred when the plaintiff takes holidays. I accept that there will be a need for holidays and, indeed, the defendants do not contend otherwise. However, I do not consider it would be reasonable to award the amount claimed. The costings upon which the claim made by the plaintiff are based are to be found in Exhibit A12, a report from Travelaw. These costings include the cost of providing the carers with food, and no allowance is made for the saving on keep elsewhere provided for in the provision for the cost of caring for the plaintiff. Nor do the costings take account of package holidays or seasonal rates for air travel; I note for instance that $7037 is allowed in the costings as the cost of a return economy fare to Europe, and that is a very high fare indeed. Again, when looking at the airfares built into the costings for interstate travel, no allowance has been made for the cheaper fares so frequently available.

252 If the plaintiff does travel overseas in the future, it is not to be assumed he will always choose Europe as his destination or that he will travel as frequently as contemplated. He may well choose a less expensive destination, such as New Zealand. Nor is it to be assumed that he will always go to Melbourne for four weeks every second year. Once again, his holidays, and the length of them, with whatever frequency they are taken, may well result in less expenditure than that upon which the costings of the plaintiff’s claim have been based.

253 Further, the costings assume that but for the accident the plaintiff would have gone to Europe in the immediate future and thereafter every ten years. Had the accident not happened, the plaintiff would, in all probability, have married and had children, and the associated responsibilities may well have restrained travel, certainly for so long as the children were financially dependent upon their father. Moreover, it is unlikely that the plaintiff uninjured would have chosen capital city holidays of four weeks duration every second year.

254 The figure I allow must provide for life expectancy of 45.2 years, not the longer period upon which the plaintiff’s calculations are based.

Claim for future cost of equipment

256 The equipment needs of the plaintiff were assessed by Ms Temblett of Paraquad and her report of 5 November 1988 forms Exhibit A7. Two schedules of equipment needs have been given, the first of which identifies current requirements, and the second of which is headed “Possible Future Needs”.

257 The defendants have not sought to challenge the need for any of the items scheduled on either list, nor the proposition advanced by Mr Wheelahan that allowance should be made for the second “possible” list on the basis that the provision for them should be postponed for five years. I therefore propose to allow for the various items on each list, providing, in the case of the second list, for the relevant costs to commence in five years time.

258 There is a saving to be gained by financial membership of the Paraplegic and Quadriplegic Association of New South Wales, and no reason has been advanced as to why the plaintiff would not become a member of that association. I find that it is reasonable that he should join, if for no other reason than to enjoy the savings on equipment costs. I therefore propose to allow for the cost of meeting the future needs at membership rates. I allow for such needs for 45.2 years, subject to postponement for the possible list costs for the period previously mentioned.

For current requirements: $9483.12 annually (omitting cents) $237,296

For possible requirements: $3746.32 annually (omitting cents) $ 75,100

$312,396

Provision of an assistance dog

“Q. In May of 1997 did a psychologist recommend that you acquire a dog?

A. Yes.

Q. Have you owned a dog before then?

A. No, never.

Q. Did you do as you were advised?

A. Yes, I did.

Q. And I think it had been suggested to you by para and quad as well?

A. Yeah.

Q. What sort of dog did you get?

A. A Border Collie.

Q. What do you do with regard to the dog?

A. Heaps. He's pretty much there the whole time with me. He's allowed inside the house, so if I'm sitting in the lounge room he's pretty close by, jumps up and puts his front claws on the side of my leg and I give him a pat. Walk him twice a day when the weather permits. When I'm outside he coasts around with me, yeah.

Q. How to you find having the dog?

A. It's great.”

“Q. Just pausing there. With the dog, apparently he never had a dog before?

A. No.

Q. And it was recommended he get one for psychological well being?

A. Definitely, yes.

Q. To provide a companion?

A. Yes.

Q. And a pet?

A. Yes.

Q. When did you get the pet?

A. It was three years ago, March, not long after we shifted into Tuckeroo Drive.

Q. And you have observed him at very close quarters ever since that time?

A. Yes.

Q. What do you say, from a lay person's point of view, about the valve of the dog?

A. Invaluable. He's just a joy to Dave, and Dave really loves him, and the dog seems to know it. When he is in bathroom he goes and lies outside Dave's window. He just wants to be around Dave all the time. It's beautiful.

Q. Did you say it appears to assist with David's spirits?

A. Yes.”

262 The defendants have not contended that no allowance should be made for the provision of a dog. The only issue raised is as to the amount to be allowed.

(a) assessment of the client’s suitability for an assistance dog;

(b) assessment of the requirements of the client;

(c) the cost of purchase of the puppy and the cost of its early life;

(d) the cost of intensive training for the dog;

(e) the cost of training the client to use the dog;

(f) the provision of equipment for the dog;

264 The analysis also dealt with the average cost of maintaining a Labrador, assessed at $1845 annually.

265 Based upon this report and providing for all the elements of the analysis abovementioned, the claim was costed on the assumption that the plaintiff will require an assistance dog for the next forty-nine years.

266 Whilst I consider that the plaintiff is entitled to some allowance for a dog, I am not satisfied that the allowance should be made upon the basis presented on behalf of the plaintiff.

267 There is no evidence that “Banjo” has been trained as an assistance dog, nor does the evidence persuade me that the plaintiff has a need for a dog to be trained as contemplated in the report Exhibit A 23. The plaintiff will have available to him full-time carers. The compensable need which Banjo meets is the psychological need for which the dog was acquired. I consider therefore that it is reasonable to make some provision for the cost of the maintenance of the dog.

268 The maintenance costings referred to in Exhibit A23 are for a Labrador and Banjo is a Border Collie. I have no evidence as to the costs associated with Banjo’s maintenance, nor do I know what he cost to acquire.

269 So far as Banjo’s replacement is concerned, the evidence is that Banjo has been used for breeding purposes and the opportunity exists, no doubt, to defray the dog’s maintenance costs and the cost of his ultimate replacement.

Future cost of housing

Cost of purpose built home and land $734,361

Maintenance and running costs of carers’ accommodation 148,367

Cost of furnishing the carers’ accommodation 6,165

Restoration costs for specific fixtures required 4,880

272 The plaintiff gives credit against the above costings for the cost of a home averaged between a three bedroom and a four bedroom home. The amount thus credited is $235,938, and this results in a nett claim of $657,835.

273 The defendants submitted that the above claim is excessive and it has been submitted by the first defendant that adequate allowance for this item would be $100,000, but although Mr Maconachie made certain specific criticisms of the plaintiff’s approach on this claim, no analysis as to how the figure of $100,000 was arrived at was attempted. It was simply stated to be provision for the cost of modification and for moving twice in his lifetime.

274 When the plaintiff left hospital he went firstly to his father’s home at Ballina, because the two storey unit he had lived in with his mother before his accident was plainly unsuitable. His father’s home, although some modification was done to it, was not suitable either and Mr Beck then purchased adjoining premises, in one of which the plaintiff has lived up to the present time with his mother. His father lives in the property next door and on that adjoining property there is a swimming pool. Unfortunately, the plaintiff has been unable to make even limited use of it as the pool is not heated and access to it is too difficult.

275 The house in which the plaintiff is presently living has been modified to some extent. The plaintiff identified some difficulties in living there and so too did his mother and the architect, Mr Watts. Although I consider the premises nevertheless to be reasonably sufficient for the immediate future, they would not be adequate in the long term. The plaintiff understandably wishes to live in his own home suitably modified to meet his handicaps and I am satisfied that the case calls for allowance to reflect the added costs in the provision of housing by reason of the plaintiff’s handicaps and his requirements associated therewith. To determine the appropriate allowance is, on the evidence presented, an extremely difficult task.

276 Mr Watts, who I accept is an architect of considerable experience in projects involving disabled persons, prepared a report, Exhibit A25, and he gave evidence influenced by the plaintiff’s understandable wish to continue to live in Ballina where his family and friends reside and where his interests are. It seems to me to be altogether reasonable that the plaintiff should continue to live in the Ballina area.

277 I am satisfied, as I have already indicated, that it is reasonable to meet the plaintiff’s needs for future care by providing for a live-in couple and the plaintiff’s future housing requirements are to be considered with this in mind.

The home $184,000

The garage 25,000

The carport 8,500

The covered way and verandahs 20,000

External works 17,700

Carers’ quarters 35,000

Special installations 34,000

Safety items 7,300

Air conditioning 13,000

Household equipment 4,000

279 To the above costs, Mr Watts added expert fees for architectural and engineering services. In a supplementary report, reference was made to an increase in building costs.

280 Mr Watts’ costings make no provision for the cost of the land on which the residence was to be built.

281 Mr Shay, who is a real estate agent with some twenty-eight years experience in the Ballina region, was called to give evidence of the cost of available land, considering large blocks of the order of 1000 square metres. Mr Shay’s evidence was that the cost of such blocks is inflated because land of that size is zoned for units, and Mr Shay gave evidence of various land costs, including very expensive sites with ocean views. The average land cost, according to Mr Shay, for the size block he had in mind was $255,000. By adding the cost of land to the ultimate cost of Mr Watt’s designed home, the figure of $734,361 previously mentioned is reached.

282 The home designed by Mr Watts would, I am sure, be satisfactory for the plaintiff, but the task I have to address is what is required to meet the plaintiff’s “reasonable requirements” and not his “ideal requirements” : see Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661.

283 I am not satisfied, having considered Mr Watts’ evidence, and in particular his cross examination by Mr Maconachie, that the plaintiff’s reasonable requirements could not be met, even assuming the construction of a new home, on a block of land no larger than 700 square metres. The plaintiff’s reasonable requirements do not call for a garage as large as that for which Mr Watts has made allowance, as well as a carport and a car space. The plaintiff’s reasonable requirements do not extend to a full sized swimming pool. Since I am not satisfied that the plaintiff reasonably requires 1000 square metres of land, Mr Shay’s costings for a block of such a size are not particularly helpful, although I derive some guidance from his evidence as I shall shortly indicate.

284 Turning to the various costings contained in Mr Watt’s report, these provide for a 50 square metre garage, a carport and a covered way from the garage to the house. It seems to me that the plaintiff’s reasonable requirements could be met by having a garage of lesser size incorporated into the house structure, thus eliminating part of the garage cost and the covered way.

285 In relation to the swimming pool, Mr Watts has costed this at $38,500, but, whilst the provision of some pool is desirable, what is required is an area for the plaintiff and his helper where his helper can support him. In the language of Dr Buckley in his report dated 24 December 1998, what is required is “a small heated swimming pool of sufficient size to contain Mr Beck in a floating supine position with a carer to assist him.” This requirement can be provided for at a total cost of $16,000. I draw this figure from the evidence given by Mr Watts in cross examination. The smaller pool would have much smaller running costs: Mr Watts said something between ten to twenty percent of the running costs for which he provided.

286 What Mr Watts has done in his costings is to cost the house designed. His costings make no allowance for what costs would have been incurred in the construction of a house which did not have to be modified for the special needs of the plaintiff. I accept Mr Watts’ opinion that the plaintiff’s need would best be addressed by the construction of a new home, but I am not satisfied that, by simply adding the cost of such a house to the cost of a block of land, and then deducting the cost of a house already built, the plaintiff’s approach to this item makes adequate allowance for what has to be kept in mind, namely that my task is to provide compensation for the additional costs reasonably to be incurred because of the plaintiff’s particular needs.

287 This difficulty, which I perceive in the approach I am invited to take, extends to the provision for the verandahs, external works, many of the safety and security items and the household equipment.

288 Whilst I acknowledge the imperfections of the approach I have decided to take, it seems to me that it affords the most helpful guide to the determination of a reasonable allowance under this heading. Drawing on Mr Watts’ evidence, but not accepting it in its entirety for the reasons I have already indicated, I adopt the following approach. I allow his basic home construction cost of $184,000. I allow altogether for a garage of reduced size and a carport the sum of $25,000. I allow $35,000 for construction of carers’ quarters. I allow $16,000 for the provision of a swimming pool (accepting the evidence given by Mr Watts in cross examination at T318). I allow for special installations of the sort considered by Mr Watts at pp 23-23 of his report, the sum of $33,000. I allow for safety items the sum of $3100, being for items 2, 5 and 6 of the items identified at p 23 of his report. I allow $13,000 for the air conditioning costs outlined by Mr Watts. Providing for professional fees, I allow for building costs for a residence suitably constructed the sum of $340,000.

289 I have considered, but have not allowed for the reasons earlier recorded, the remainder of the capital cost items of the building works referred to in Mr Watts’ report.

290 To the allowance for building costs provision must be made for the cost of a block of land. I am not satisfied that it will be reasonably necessary for the acquisition of a larger block than one of 700 square metres. Mr Shay did not directly address the cost of blocks in the Ballina area 700 square metres or less; and I observed earlier the larger blocks with which his evidence was concerned were made the more valuable because they were large enough for home unit development. Mr Shay did give evidence that prices for 1000 square metre blocks in Ballina started at $200,000. Mr Watts referred in his report to information given by an estate agent that there was a block in the Headlands Estate north of Ballina over 900 square metres expected to sell “for about $100,000” but that information was not tested. It seems to me that it is reasonable to infer that, if prices for 1000 square metre blocks start from $200,000, a smaller sized block of, say, 700 square metres could reasonably be expected to be purchased for $150,000 or thereabouts.

291 Adding this acquisition cost to the figure earlier stated, I arrive at the sum of $490,000 as the reasonable cost of the provision of a new residence for the plaintiff, constructed to meet his special requirements.

292 There must be offset against this the cost that the plaintiff would have incurred in acquiring a residence suitable for an able bodied person. There has been no attack upon the figure of $235,750 used in the plaintiff’s costings and I adopt it. On this approach I arrive at the sum of $254,250 for the extra cost of a home suited to the plaintiff’s reasonable needs.

293 The plaintiff is also entitled to provision for the cost of furnishing the carers’ accommodation. In this regard, the figure advanced by the plaintiff of $6165 has not been challenged and I allow it.

294 Provision must be made for maintenance costs associated with the air conditioning the plaintiff will require and with the pool maintenance.

295 It seems to me on the evidence that $40 per week is a reasonable assessment of the cost of maintaining air conditioning and the lump sum presently required to provide for such a cost for the duration of the plaintiff’s life is $52,048.

296 Next, provision is to be made for maintenance of the carers’ accommodation. I draw on the figures identified in Exhibit E and, accepting that the average annual cost for such maintenance is $739, I allow for the future the sum of $18,216.

297 The smaller pool which I find to be a reasonable provision in the circumstances of this case will, according to Mr Watts, cost ten to twenty percent of the running costs set out on p 26 of his report. I allow $26,000, in round figures.

298 In all then, for maintenance costs I allow $96,264.

299 I am not persuaded that it is reasonable to allow for the restoration costs, being the fourth item identified in the plaintiff’s claim for future housing costs. This contemplates the contingency that the house to be provided is ultimately to be sold to a person without a disability. This item is too speculative to warrant an allowance.

Provision of housing $254,250

Relevant maintenance costs 96,264

Furnishing carers’ area 6,165

$356,679

Summary of assessment

Allowance for general damages $375,000.00

Interest on past general damages Nil

Loss of earnings and loss of earning capacity

Past loss 129,000.00

810,000.00

Interest on claim for past economic loss 25,560.00

Fox v Wood allowance 3,905.30

Lost superannuation benefits 93,082.00

Loss of long service leave entitlement Nil

Out of pocket expenses 635,332.31

Past gratuitous assistance 300,091.00

Interest on past gratuitous assistance 83,775.00

Future care provision 4,550,296.00

Cost of a motor vehicle 265,835.00

Provision of mobile phone 15,354.00

Cost of future medical treatment 115,303.00

Acupuncture 15,000.00

Future medication and pharmaceutical requirements 166,046.00

Future cost of Baclofen pump surgery 74,440.00

Future cost of child care Nil

Future cost of a computer 220,000.00

Increased cost of future holidays 250,000.00

Future cost of equipment 312,396.00

Provision of an assistance dog 26,000.00

Future cost of housing 356,679.00

$8,823,094.61

Payments made by the first defendant

302 I have earlier made reference to the payments that have been made to or for the benefit of the plaintiff by the first defendant. No comprehensive list of such payments was proved at the hearing but since I reserved my decision in this matter, and at my request, counsel have provided particulars. A list provided by Mr Wheelahan acknowledges payments totalling $908,243.81; the subsequent list provided by Mr Laughton details payments totalling $943,841.85. The payments made assumed relevance having regard to the claims for interest I have now addressed. The communications of counsel are marked for identification, mfi: 17 and mfi: 18 respectively, and will be placed with the papers.

The plaintiff’s entitlement

The cross claims

305 The first defendant is entitled to judgment on its cross claim against the second defendant for forty percent of the sum for which judgment is to be entered in favour of the plaintiff, that is to say in the sum of $2,823,390.

Costs

Formal orders

2. Verdict and judgment on the cross claim of the first defendant against the second defendant in the sum of $2,823,390.

3. Verdict and judgment on the cross claim of the second defendant against the first defendant in the sum of $4,235,085.

4. Costs reserved.

**********

Last Modified: 04/19/2001

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence
Duty of Care
Breach of Contract
Compensatory Damages
Volenti Non Fit Injuria
Contributory Negligence

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Citations

Beck v State of New South Wales [2001] NSWSC 278

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CITATION:	Beck v State of NSW & Anor [2001] NSWSC 278
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC NR600015/98
HEARING DATE(S):	30-31 January, 1-13 February 2001
JUDGMENT DATE:	18 April 2001
PARTIES :	David Robert Beck (Plaintiff) State of New South Wales (1st Defendant) Perisher Blue Pty Limited (2nd Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	D. Wheelahan QC/G. Radburn (Plaintiff) J. Maconachie QC/G. Laughton (1st Defendant) D. Nock SC/R. Beasley (2nd Defendant)
SOLICITORS:	Baker Mannering & Hart (Plaintiff) I.V. Knight (1st Defendant) Colin Biggers & Paisley (2nd Defendant)
CATCHWORDS:	NEGLIGENCE - plaintiff injured in activity in snowfield - first defendant in charge of excursion of school children and plaintiff a trainee teacher engaged to assist in caring for children - whether first defendant owed duty of care to plaintiff and, if so, whether breach of duty causing harm - defences of volenti non fit injuria and of contributory negligence. NEGLIGENCE - second defendant lessee or licensee of area where injuries suffered - whether second defendant owed plaintiff duty of care and, if so, whether breach of duty causing harm - defences of volenti non fit injuria and of contributory negligence. DAMAGES - injuries resulting in quadraplegia - consideration of relevant heads of damage.
LEGISLATION CITED:	Motor Accidents Act Workers' Compensation Act Law Reform (Miscellaneous Provisions) Act
CASES CITED:	Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Barisic v Devenport (1978) 2 NSWLR 111 Burnicle v Cutelli (1982) 2 NSWLR 26 Fitzgerald v Lane (1989) 1 AC 328 Halsbury's Laws of Australia (1994) Vol 19 at 300-140 Insurance Commissioner v Joyce (1948-49) 77 CLR 39 Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 Roggenkamp v Bennett (1949-50) 80 CLR 292 Sullivan v Gordon [1999] NSWCA 338 Sutherland Shire Council v Heyman (1984-85) 157 CLR 424
DECISION:	See para 308

[2001] NSWSC 278

18 April 2001

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence

Duty of Care

Breach of Contract

Compensatory Damages

Volenti Non Fit Injuria

Contributory Negligence