Benjamin Alan Ackland v Patrick Joseph Stewart and Beryl Ann Vickery (Nee Stewart) and Michael Patrick Stewart - [2014] ACTSC 18

BENJAMIN ALAN ACKLAND v PATRICK JOSEPH STEWART AND BERYL ANN VICKERY (NEE STEWART) AND MICHAEL PATRICK STEWART
[2014] ACTSC 18 (21 February 2014)

NEGLIGENCE – personal injury – injury from performing backwards aerial somersault on jumping pillow – no duty where “dangerous recreational activity”: s 5L Civil Liability Act2002 (NSW) – whether backwards aerial somersault on jumping pillow involves “significant risk of physical harm” – whether “obvious risk” to reasonable person in plaintiff’s position: s 5F Civil Liability Act2002 (NSW) – perception of risk of minor harm not the equivalent of perception of risk of serious injury

NEGLIGENCE – personal injury – injury from performing backwards aerial somersault on jumping pillow – whether duty to warn – no duty where “obvious risk”: s 5H Civil Liability Act2002 (NSW) – s 5H “obvious risk” same meaning as in s 5L – reasonable person could infer danger not markedly different from trampoline – whether breach in failure to warn – real risk of catastrophic harm – defendants aware of hazard – burden of precautions minimal

DAMAGES – personal injury – quadriplegia from landing on neck while attempting backwards aerial somersault on jumping pillow – buffer can be awarded under s 13 Civil Liability Act2002 (NSW) for unknown future loss of earnings – whether damages should be awarded for gratuitous care in hospital – plaintiff suffered physical and psychological injury – basic services provided by hospital staff do not render care by parents unnecessary

Civil Liability Act2002 (NSW), ss 5B, 5F, 5H, 5K, 5L, 13, 15, 15C, 16
Disability Discrimination Act1992 (Cth), s 15
Motor Accidents Act1988 (NSW), s 72
Motor Accidents Compensation Act1999 (NSW), 126

Collins v Clarence Valley Council (No. 3) [2013] NSWSC 1682
Fallas v Mourlas (2006) 65 NSWLR 418
Falvo v Australian Oztag Sports Association [2006] NSWCA 17
Jaber v Rockdale City Council [2008] NSWCA 98

K Mart Australia Ltd v McCann [2004] NSWCA 283
Lormine Pty Ltd v Xuereb [2006] NSWCA 200

Macarthur Districts Motorcycle Sportsman Inc v Ardizzone [2004] NSWCA 145
Nominal Defendant v Lane [2004] NSWCA 405

Nicholson v Nicholson (1994) 35 NSWLR 308
Penrith City Council v Parks [2004] NSWCA

Purvis v New South Wales (2003) 217 CLR 92
Streller v Albury City Council [2013] NSWCA 348
Swain v Waverly Municipal Council (2005) 220 CLR 517
Tame v New South Wales (2002) 211 CLR 317

No. SC 443 of 2010

Judge: Burns J
Supreme Court of the ACT

Date: 21 February 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 443 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: BENJAMIN ALAN ACKLAND
Plaintiff

AND: PATRICK JOSEPH STEWART
First Defendant

BERYL ANN VICKERY
  (NEE STEWART)
  Second Defendant
MICHAEL PATRICK
  STEWART
  Third Defendant

ORDER

Judge:  Burns J
Date:  21 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

Judgment for the plaintiff in the sum of $4,626,241.84.

The defendants are to pay the costs of the plaintiff. This order is stayed for 21 days to allow the parties to relist the matter for any argument in relation to costs.

On Saturday 10 October 2009 the plaintiff was a resident at Austin College at the University of New England at Armidale in New South Wales. He was then 21 years old, and studying for the degrees of Bachelor of Arts and Bachelor of Laws. On that day he and the number of other residents of Austin College participated in a “Mystery Bus Tour”, which was a bus trip arranged by a College committee where the participants were not told the destination in advance. The bus left the College sometime between 8:30 am and 9:10 am that day. The plaintiff consumed some alcohol at about the time the bus departed, but there is no suggestion that his consumption of alcohol played any part in what later occurred.

As at October 2009, the defendants were the owners and occupiers of a property known as “Green Valley Farm” (the Farm) located on New Valley Road near Tingha in the New South Wales. The defendants conducted a business on the farm, comprising, in part, a holiday/amusement park to which the public were invited to enter upon payment of an entry fee. The amusement park included a number of attractions including a device known as a “jumping pillow”, comprising a large inflatable pillow measuring approximately 20 m in length and 10 m wide, designed to allow visitors to the park to jump up and down on it, like a trampoline.

The farm was the destination of the Mystery Bus Tour. The bus containing the Austin College students, including the plaintiff, arrived at the farm at about 12:15 pm, and the tour group was admitted to the farm upon payment of a fee. When the tour group entered the farm, there were a number of children and other persons jumping on the jumping pillow. Some of these persons, including children, were performing what has, in these proceedings, has been referred to as a “back flip” but which may more accurately be described as a back somersault in the air. The object of this manoeuvre is to bounce from the bed of the jumping pillow and, whilst the participant’s body is in the air, bring the legs up in front of the body and rotate 360° about the horizontal axis with the legs coming up over the body, and the head going back underneath the body, to land on the participant’s legs on the bed of the jumping pillow.

Between at 12:15 pm and 2:30 pm the plaintiff and other members of the tour group made use of the various amusements and attractions at the Farm, including the jumping pillow, and also ate lunch. During this time, members of the tour group, not including the plaintiff, and others performed back somersaults on the jumping pillow. Between 2:30 pm and 3:00 pm the plaintiff joined other tour group members on the jumping pillow and performed various manoeuvres on it. With the guidance of others, the plaintiff attempted to perform a back somersault, but landed awkwardly, landing on his “side and the belly”. He received some more advice from members of the tour group apparently more proficient in performing back somersaults and, at about 3:00 pm, again attempted the manoeuvre. On this occasion he landed heavily on his head on the bed of the jumping pillow, causing a serious neck injury and resulting in quadriplegia.

THE PLAINTIFF’S CLAIM

The plaintiff claims that his injury was caused, or contributed to, by the negligence of the defendants. He claims the defendants were negligent by:

a) failing to provide proper instruction to persons such as the plaintiff in the safe use of the jumping pillow;

b) failing to provide proper supervision of persons such as the plaintiff to ensure that procedures for safe use of the jumping pillow were followed;

c) failing to prohibit back flips or other inverted manoeuvres on the jumping pillow;

d) failing to follow safety instructions provided to the defendants by the manufacturers and distributors of the jumping pillow;

e) failing to provide any sign or notice in the vicinity of the jumping pillow displaying words to the effect that somersaults and inverted manoeuvres (such as back flips) were prohibited;

f) failing to inform the plaintiff directly at any time that somersaults and inverted manoeuvres (such as back flips) were prohibited;

g) failing to direct the plaintiff at any time to cease carrying out inverted manoeuvres (such as back flips); and

h) failing to explain to persons such as the plaintiff (whether by use of signs or direct instruction) the risks of injury that might be caused by landing heavily on the neck as a result of attempting an inverted manoeuvre on the jumping pillow.

THE DEFENCE

The defendants admit that as at 10 October 2009 they were the proprietors of the Farm, including the holiday/amusement park, and further admit that on that date the plaintiff and other members of the tour group were admitted to the farm upon payment of an entry fee. They say that not long after the tour group entered the farm, some members of the group began misbehaving, and the organisers of the tour group were called over the farm’s loudspeakers to attend the main kiosk. It is alleged they were told they needed to take control of the tour group, or they would have to leave the Farm, and that they were to inform all members of the tour group that they were not to use any of the park equipment, including the jumping pillow. The defendants claim that an announcement was made over the Farm’s public address system requesting all members of the tour group to gather in the barbecue area and to stay off the park equipment. The defendants say that insofar as they owed the plaintiff a duty of care, they discharged that duty in full, and otherwise deny the plaintiff’s claim of negligence.

In the alternative, the defendant’s say that if the plaintiff suffered injury, loss and damage as claimed, that injury, loss and damage arose solely as a consequence of the plaintiff’s participation in a dangerous recreational activity within the meaning of Division 5 of the Civil Liability Act2002 (NSW) (the CLA). As the plaintiff was injured in New South Wales, it is the laws of that State which I must apply.

In the further alternative, the defendants say that if the plaintiff was injured and suffered loss and damage as claimed, that injury, loss and damage was caused or materially contributed to by the plaintiff’s own negligence both as a matter of common law and within the meaning of s 5R of the CLA.

THE EVIDENCE

The Plaintiff

The plaintiff gave evidence at the hearing. He told of his situation prior to his injury, his recollection of 10 October 2009 and his experiences since that time.

The plaintiff’s work history prior to his injury

From around the age of 15, while still at school, the plaintiff worked at a fruit market Saturdays and Sundays at the Belconnen Markets. He would carry boxes and stack fruit, working one day of the weekend from 6:00 am to 6:00 pm with breaks for morning tea and lunch. He would primarily work Sundays as he would play sport on Saturdays.

While at high school in Forster, NSW for Years 11 and 12, the plaintiff worked for a golf club as a kitchen hand working the night shifts from Thursday to Saturday from 5:00 pm to 10 or 11 at night. He also worked at a Thai restaurant at the end of Year 12 and over the holidays before starting university, working almost every night.

The plaintiff did not work during semester while at university, however would return to Canberra to his parents on the holidays and would work at that time. For the two summers after starting university before the accident, the plaintiff worked at Poacher’s Pantry in Hall as a kitchen hand and at Con’s Seafood Restaurant in Woden as a waiter and behind the bar. At Poacher’s Pantry he would work Wednesday, Thursday and Friday 10:00 am to 5:00 pm, preparing for the busy days on Saturday and Sunday when he would work from 10:00 am until 11:00 pm. At Con’s Seafood Restaurant he would work from around 6:30-7:00 pm until 11:00 pm Wednesday, Thursday and Friday. He would also work shifts, particularly at Poacher’s Pantry, if he returned to Canberra during semester or between semesters.

Sport prior to the injury

The plaintiff played soccer competitively from an early age until the accident. While at school, he trained twice a week and playing games on the weekends. He played in the first division in Canberra.

The plaintiff did some gymnastics in Dubbo in Year 2.

He played all sports available at school. He had some success at chess.

The plaintiff used a gym for fitness in Year 12, but did not go again until after the accident.

At university the plaintiff played for the university soccer team, training twice a week with a game on the weekends. He took that very seriously. He also played for the university in volley ball and table tennis. He played for his college “in pretty much every sport imaginable”.

Trampoline

The plaintiff had a trampoline at home until age 16, when it was sold. He did flips and inverted manoeuvres, landing on his back and stomach on the trampoline. He said he was not always successful with these manoeuvres and that he had landed on his head and neck while attempting them. He never injured himself on the trampoline.

He agreed he developed the degree of difficulty of the things he was doing on the trampoline as he got older. He agreed he found doing manoeuvres challenging. He said he wanted to continue to progress to more difficult things as he used the trampoline more.

Schoolwork prior to the injury

The plaintiff went to primary and secondary school in Canberra. He moved to Forster, NSW, in Year 11 as he was having some trouble at home and with his school work and he wanted a “fresh start”. He moved to live with his paternal grandmother. The plaintiff felt he was less stressed and more relaxed in Forster and did better at school as a result. He completed Year 12 in Forster.

A number of warning letters, four dated from February to September 2006 and two from 2005, from Great Lakes College, Tuncurry Senior Campus, were tendered by the defendants. They detail that the plaintiff was in danger of not completing his HSC due to the non-submission of assignments in two separate subjects. Mrs Ackland, in her evidence, agreed she had received the letters. In relation to letters received in 2005, the plaintiff said that he did not get along well with the teacher, and that they had a lot of arguments. He found him to be very strict. He thought, however, that the teacher was very good and that that was reflected in his coursework mark.

The plaintiff’s HSC final report was tendered at the hearing. He did not perform as well in his final exams for the HSC as he had earlier in the year in his coursework.

The plaintiff obtained entry on an early entry application to the University of New England prior to knowing his final University Admissions Index Ranking (UAI) on the basis of his earlier results, rather than his final marks as appeared on his HSC final report.

University prior to the injury

The plaintiff moved into one of the residential colleges at the University of New England in Armidale at the start of his first year at university in 2007. He said he enjoyed college life straight away. He thought the social life was a great experience. His parents paid his rent at the college.

The plaintiff began studying environmental science and law, however quickly discovered he did not enjoy science and so in second semester he changed from studying environmental science to arts.

The plaintiff said he “went off the rails” in his second year. He said “I was loving university life and I guess got involved in other activities which took away from my studies”. Consequently, he did not complete five units in 2008. He said working out a balance between sport, social life and studies took a while for him. He took summer courses and was taking five courses a semester in 2009 to “pick up the slack”. In the first semester in 2009 he completed four of five units. He said he was tracking well in the second semester until the accident.

The plaintiff’s academic record was tendered in the proceedings. It revealed that the plaintiff received poorer marks in his first years at university leading up to the accident. Some courses were unsurprisingly recorded as “withdrawn” from or “incomplete” following his injury. His record concluded in what can probably fairly be described as average to above average marks for the final years of his degree following his return from rehabilitation.

Green Valley Farm

The plaintiff attended a Mystery Bus Tour run by Austin College in his first year in 2007. That tour, like the tour in 2009, also went to Green Valley Farm. He remembered jumping on the pillow in 2007 and performing manoeuvres resulting in him landing on his stomach and back, but could not remember if he did flips. He could not remember very much in detail about that trip.

The plaintiff recalled the Mystery Bus Tour in 2009 was organised primarily by Benjamin Bahnsen. As it was a “mystery” tour, most members of the college committee were unaware of where it was going.

The plaintiff recalled getting up around 7:00 am on the morning of 10 October 2009, a Saturday, and after getting ready and having breakfast got on the bus as it arrived at around 8:30 am. He recalled the bus stayed at the college waiting for other students for about 40 minutes before it departed. He thought about 37 students were on the bus for the tour.

His recollection was that the bus left Austin College at around 9:10 am, but stopped shortly after about 500 metres at a railway crossing where the students alighted. They then walked across the railway tracks where they were met again by the bus. During this walk the students drank Passion Pop, a cheap sparkling wine. The students were told they were not allowed to drink on the bus, but were permitted to drink at the stops. The plaintiff estimated he drank about a half of a bottle at this stop, although he was sharing the bottle with another student who he said liked to drink and so that student probably had had a bit more than him. The students then got back onto the bus and travelled approximately 15 to 20 minutes to a clearing in a pine forest by the side of the road where they again alighted and were permitted to drink and chat in groups. The plaintiff estimated they spent approximately 15 minutes at this location and he consumed approximately a third of a bottle. The group then continued on the bus to a dam that the plaintiff at the time of the hearing knew to have been Malpass Dam, North of Armidale. The stop at the dam largely repeated what had happened at the earlier stops. The plaintiff estimated he drank another third of a bottle. There was one final stop before the bus arrived at Green Valley Farm for people to go to the bathroom, however the plaintiff did not get off the bus and the students did not drink at that stop. The bus then arrived at the Farm around 12:15 pm. Senior counsel for the defendants made admissions in the course of the hearing to the effect that the distance from the university in Armidale to the Green Valley Farm premises is 108 kilometres and that normal driving travel time would be an hour and a half. The accident occurred at around 3:00 pm. The plaintiff said he did not feel inhibited by the alcohol he had drunk in the morning while at Green Valley Farm. It can be assumed that partly as a result of the evidence of the plaintiff given above (and other witnesses), the defendants filed in Court on 18 April 2013 an Amended Defence removing any reference to the plaintiff’s intoxication, and their case as ultimately pleaded does not allege intoxication on the part of the plaintiff as relevant to the injury suffered.

Upon arrival the student group waited in the museum area at the entrance of the Farm while Mr Bahnsen arranged payment. Once allowed in the plaintiff went to a spinning top ride for a while and then joined a group which included Elise Eddison, Tom McKeon, Ben Bahnsen and Kris Avery. The plaintiff sat and chatted with friends approximately 15 to 20 metres from the pillow. He remembered Mr McKeon doing front and back flips at this time. He also remembered some small children doing flips. The plaintiff went on the pillow at this stage. He jumped up and down and did manoeuvres where he would fall on his stomach or back and bounce back up; he did not do flips at this time. He spent around 45 minutes on and off the pillow at this time. The plaintiff then left and went on the other attractions including the slippery dip and roller coaster.

At some point the plaintiff met up with Garth Worboys and Alexandria Croker and they were informed that lunch was served. The plaintiff did not really feel like having sausages and bread for lunch, so the three of them walked to the kiosk and ordered lunch. The plaintiff had a hamburger and they sat around to eat lunch. They then returned to the student group at the barbeque area by the jumping pillow as the lunch was finishing up and the students were starting to disperse once more.

The plaintiff said there was no one at the jumping pillow who was giving directions to fellow students or himself or anyone else about what they should, or should not, do on the pillow. The plaintiff did not notice any staff nearby selling tickets. He could not specifically remember anyone collecting money for the waterslide at the kiosk on the day.

The plaintiff met with Ben Bahnsen, Tom McKeon and Kris Avery as lunch was breaking up and they decided to go on the jumping pillow to do flips. The plaintiff said he saw no sign prohibiting somersaults or inverted manoeuvres. He did remember seeing a sign saying “no shoes and whatnot, no sharp objects”.

The plaintiff was unsure about the deflection of the pillow. He agreed the pillow surface was different from a trampoline.

Only Mr Bahnsen and Mr McKeon were doing flips at first and the plaintiff and Mr Avery were simply jumping. The plaintiff in evidence said: “I decided to have a go and sort of landed a bit wrong and then, yes, obviously tried again after that and that’s when I had the accident.”

He described the first jump: “I rotated and didn’t quite get all the way around and yes, landed awkwardly on my – sort of, if you imagine coming around and not quite flipping my legs all the way through and sort of landed on my side and belly on the pillow”. The plaintiff said he was receiving advice from Mr McKeon and Mr Bahnsen, but mainly from Mr McKeon as he “was quite proficient”.

The plaintiff stated he did not really remember his second attempt at a flip. The plaintiff described what happened next in evidence in chief:

I just remember the pain when – when the accident happened. It all goes blank, yes. All right. And what happened the second time? ---I remember my first thought was, “I can’t move my legs, I can’t move my legs”. Yes. So no, I presume not. I don’t remember any feeling. I just remember not being able to move.
Were you in pain?--- Yes.
What do you next remember?‑‑‑I can remember - there were other people on the pillow and they obviously got off quite quickly and I’m not sure exactly what happened, but I think a couple of the boys were going to try to lift me up and move me off the pillow, but someone instructed – [Ms Croker] instructed them not to do so and she obviously realised what was going on and came across to my aid.

He was asked in cross-examination whether he appreciated that he could suffer injury on the pillow:

You appreciated when you set out to perform the back flips that there was a chance that you wouldn’t perform it properly?‑‑‑I appreciated that I could possibly land on my neck.
And in fact the first time you tried to do it, you didn’t land on your neck but you didn’t perform it properly, that’s right?‑‑‑I landed awkwardly, yes.
So the second time you attempted it, you knew from your immediate past experience that there was a chance that something might go wrong again?‑‑‑In terms of falling?
Yes, landing awkwardly?‑‑‑Yes.
Failing to perform the manoeuvre?‑‑‑That I could fail to perform the manoeuvre yes.
And that if you did so there was a risk of hurting yourself?‑‑‑No.
You knew, didn’t you, that there was a risk that if you landed head first on the jumping pillow in the same way as you knew that there was a risk if you landed head first on the trampoline that you might hurt yourself?‑‑‑No.
Why not?‑‑‑Because I don’t think there’s a risk that you could hurt yourself.
You’re landing on a fairly firm surface?‑‑‑No, it has considerable – it – it has – it’s on air.
It’s firmer than a trampoline?‑‑‑I’m not an expert on that.
Mr Ackland, you know, don’t you, from standing on it, from standing on the jumping pillow, that it’s firmer than a trampoline?‑‑‑As in, in what way?
Gives you more support? You know that, don’t you?‑‑‑I – no.
It’s a relatively firmer surface, compared to a trampoline, isn’t it?‑‑‑It’s a broad surface. That’s what I was trying to convey before when I said that it gives over the whole thing and you [affect] people around you.
You’ve told us that you watch a lot of sport on TV?‑‑‑Yes.
You’ve seen soccer players when they score a goal do a standing 360 degree forward flip in the air?‑‑‑Yes.
On a hard surface?‑‑‑Yes.
A grass surface?‑‑‑Yes.
And you would know that if they got that wrong and they landed on their head they might hurt themselves?‑‑‑I’ve never witnessed that.
...
You would appreciate it, if you thought about it, that there would be a risk if somebody landed on their head on grass that they would hurt themselves, could hurt themselves?‑‑‑Depending on how they landed.
Yes and you’ve already told us earlier today that you appreciated when you were younger that there was a risk of hurting yourself if you landed badly on the trampoline?‑‑‑No I meant to clarify that I appreciated that you could land awkwardly, I didn’t appreciate that you could hurt yourself.

Later the plaintiff was asked further questions by Mr Sexton SC about doing flips on the jumping pillow:

You recognised that there was a degree of difficulty in doing a manoeuvre like that, didn’t you?‑‑‑That it was more difficult than jumping up and down on the spot, yes.
It was more difficult than what you’d previously been doing when you said you landed flat on your back or landed flat on your stomach?‑‑‑I ‑ not necessarily. I was more proficient at those manoeuvres.
Well you recognised that in order to successfully perform the back flip you had to turn your body through 360 degrees?‑‑‑Yes.
And land back on your feet?‑‑‑Yes.
And did either Tom [McKeon] or Ben [Bahnsen] give you any advice about how to do such a manoeuvre?‑‑‑Not that I recall. I was more just watching them.
Well, you said yesterday that Tom was quite proficient?---Yes. He’s a very athletic guy.
And you were asked whether you were getting any help from anybody, any advice, and you said, “Yes, Tom”?---Tom, yes.
So you were getting some advice from him?---In terms of the fact that I was watching him do it and he was showing me how to do them, yes.
Did he say anything to you about how to do it?---He may have, I don’t recall.
Did you regard it as something that was challenging?---In what - in more challenging than jumping up and down, yes.
More difficult?---Yes.
Something that you decided to do to see if you could achieve it?---No, I’d done them before on a trampoline.
But this was different to a trampoline, wasn’t it?---Not really in its overall effect, no.
When you say its overall effect, what do you mean?---In how you jump, the same - it’s exactly the same.
All right. A trampoline deflects more than this jumping pillow, doesn’t it?---As I said, I don’t - if - the evidence of measurements shows that it does, but I don’t know, I haven’t measured it.

The plaintiff was asked about signs at the Farm on 10 October 2009. The plaintiff was asked about a sign of conditions for visitors to Green Valley Farm, some of which read “No insurance claims will be recognised” and “You do so at your own risk”. A second sign read “All care taken but no responsibility”. The plaintiff did not recall seeing these signs.

The plaintiff was taken to a third sign which appeared in smaller print next to the “Jumping Pillow Rules” sign on the fence between the jumping pillow and the waterslide. A close-up picture of this sign was tendered at the hearing and this sign read:

WARNING
THE OWNERS OF GREEN VALLEY WATERSLIDE IN NO WAY WARRANTS [sic] THAT THE GROUNDS OR ANY DEVICE ERECTED ON THE GROUNDS IS [sic] SAFE. PERSONS ENTERING THIS AREA DO SO ENTIRELY AT THEIR OWN RISK.
ALL DUE CARE HAS BEEN TAKEN TO ENSURE THE SAFETY OF PERSONS USING THE PARK.

The plaintiff considered that this sign referred to the waterslide. The following exchange occurred between the plaintiff and senior counsel for the defendants:

So you would not understand these signs in any way as conveying that the owners were not saying that everything was perfectly safe?---They’re conveying that everything is not perfectly safe, yes.

Another student told the plaintiff that the students were not permitted on the waterslide, he was not told why. He also heard a student in the group had been bitten by a monkey. He heard a loudspeaker announcement during the day, but thought it regarded lunch. He was not told that students were not allowed elsewhere in the Farm other than the barbeque area.

After the accident, the plaintiff said other people jumping on the pillow was increasing his pain, but remembered what he thought was a male voice say “Get off, get off the pillow” to the small children jumping. He said he was lying on the pillow with Ms Croker for a long time. Eventually some paramedics arrived and secured him in a neck brace and placed him on a stretcher. He did not remember an ambulance, but recalled being put into a helicopter. He recalled regaining consciousness at one point in Tamworth and eventually arriving by helicopter to Royal North Shore Hospital in Sydney.

Rehabilitation

The plaintiff’s first memory at hospital was of waking and being thirsty but only being allowed ice as he was to go into surgery and giving consent to that surgery. He said he spent approximately two weeks in the Intensive Care Unit and was then moved to the spinal unit. In the ordinary course he was sent to the Moorong Spinal Injury Unit in Ryde, Sydney, for rehabilitation.

When he first arrived at Moorong the plaintiff said he was “incredibly weak.” He continued: “I was still in an electric chair. I couldn’t roll over. I couldn’t feed myself. I couldn’t do anything. I couldn’t empty my own bowels. I couldn’t go to the toilet myself, all that kind of thing.” He was hoisted in and out of bed on an electric hoist. The plaintiff described how he felt being confined to an electric chair:

I felt disabled and I guess – I don’t know how else to explain it – just, I don’t know, weak and felt like everybody was looking at me and not only in a – I guess people look at it, not only as a physical disability; some people look at it as a mental disability as well, who don’t quite understand, and I don’t know. It wasn’t very nice.
And coming forward to today, do you still harbour that antagonism towards electric wheelchairs?‑‑‑Yes.
And did you make a conscious choice to use a manual wheelchair when your rehabilitation went far enough for you to do that?‑‑‑Yes, and tried to make it as minimalistic as possible, as well. Short backrest, that kind of thing, just to - - -
So you chose a chair that least displayed you as a disabled person?‑‑‑Yes.
And do you intend to go on using a manual chair, at least until you’re forced back into an electric wheel chair?‑‑‑As far as practical, yes.

The plaintiff described his initial incapacity and improvement:

Could you just demonstrate to his Honour the kind of activity you are able to perform with your left arm and hand when you started at Moorong?---The only movement I had in my left hand at the start was a small - small flicker in my thumb, which was just like - in like that.
So you could flick the - the last phalanx of the thumb up and down?---Yes.
Apart from that did you have any movement in the hand?---No.
And you remain quite disabled on the right side of your body, don't you?‑‑‑Yes, to this day.
Right. And were you able to make any voluntary movements in the right hand at that time?---Not that - I might have had small flickers in the fingers, yes, but - - -
But much - but much smaller than the left side?---To this day I have very minimal movement in the right hand without using my wrist.
All right. And just by way of comparison, in general terms, would you show his Honour what sort of movement you now have in that left hand?---Yes.
Just go a bit slowly?---Sorry.
So you can - you can hold your hand up palm outwards?---Yes.
And you can separate your fingers?---Yes. I can reach across with my thumb. It's obviously not as strong as before.
So you can bring your thumb and abduct it to all of the other fingers?‑‑‑Yes.
Is there any other limitation - and - and you can close your fist. Is there any other limitation in the actual movement, the voluntary movement of the fingers?---Not really. If you asked - asked an OT they'll tell you that some of these muscles in the thumb are not as strong as they used to be or don't move as much but yes.
Well, the whole of the hand's not very strong, is it?---Yes.
It's not nearly as strong as it used to be?---As to before the accident, no.
But you can move your fingers and as we'll see you can pick up a ball, for example - - -?---Yes.

The plaintiff got along well with the medical specialists treating him. He was readmitted to the Royal North Shore Hospital in January 2010 due to blood clots that had spread to his lungs, but subsequently returned to Moorong to continue rehabilitation. He finally returned to his parents in Canberra in April 2010. He described the changes to the family home as follows:

And had there been any modifications made to the place when you came home?---Yes, it was - it was completely different to when I last saw it. Mum and dad had given up their room and en suite and that had been converted to be disabled friendly. A lot of stuff had been ripped out of the kitchen or changed. It was a lot more - there was just a lot more room, I'm not sure exactly what. There was a ramp into the front of the house, so I could get in and, yes, that kind of thing.
I think there weren't complete modifications made to the house. You - there was no access for you to the back garden, for example?---No, none to the back garden and the back bedrooms were still - and bathroom were still pretty, yes, hard to access.
Well, could you access them?---I can get into the doorway, I can't get all the way in. The bathroom I can get in but you - you can go in forwards and have to wheel out backwards.

By this stage the plaintiff said his rehabilitation had progressed:

When you came home how was your left hand movement then?---It had improved. Towards the end of my time at Moorong was when I was taught to insert my own enema and do my own bowels, so it had improved to that point.
And were you self-catheterising?---Yes, again I had my permanent catheter with leg bag removed and they tested my bladder to see whether I could hold 400 mls, which is basically the amount they medically require or medically deem safe for you to self catheterise. And I was able to do that and I'd learnt to do that.
And there was still improvement to come in your left hand?---Yes, definitely.

The plaintiff continued treatment with physiotherapists in Sydney at Royal North Shore Hospital and was referred to Canberra Hospital in Woden. He also mentioned treatment from a not-for-profit US based program called Walk On. He considered the rehabilitation at the “rehab gym” at Woden Hospital [sic] useless and conducted his own rehabilitation at home after that experience. He used an exercise bike at home and hydrotherapy in a friend’s pool. He continued to see his physiotherapist in Sydney and Walk On from 2011.

Sport after the injury

The plaintiff requires a floatation device around his waist to swim because he cannot move his legs sufficiently to keep himself afloat without it. However, with the use of that device the plaintiff considered himself “quite proficient” at swimming. He said he enjoyed the feeling of “using every single muscle in your body”. He participated in the swim leg of a “para triathlon” involving a 400 metre open water swim in early January 2013 before the hearing. His father drove him to the swim at Nepean Dam in Penrith, NSW.

Since October 2012 when the plaintiff took up wheelchair rugby, he cut down on his swimming. However, prior to the para triathlon the plaintiff would swim three times a week in training. Since the triathlon, the plaintiff continues to swim once a week at his father’s apartment. The plaintiff agreed his ambition was to be selected for the Australian team in wheelchair rugby.

The plaintiff described training with ex-Paralympian wheelchair rugby player, Garry Croker whom he met through a mutual friend. The plaintiff would train one on one with Mr Croker and “basically pick his brain for everything that he knows”. He said Mr Croker worked at the National Disability Implementation Scheme [sic].

The plaintiff’s car usage

The plaintiff stated he got his driving licence while at Moorong and got his car a couple of months after moving home to Canberra. He described the modifications to his car as follows:

And has it been modified?‑‑‑Yes, it was a steering knob on the steering wheel so I can grab and turn the wheel, because I can’t grip the wheel properly with my right arm and then it has the accelerator is moved from the right-hand side to the left-hand side so that I can use my left leg to operate it.
How do you do that?---I ‑ ‑ ‑
You don’t have any voluntary movement in the left leg?‑‑‑No, I do. Yes, I’ve had return in the left leg as well as the left fingers so I kind of – I essentially rest my heel above the break and move my ankle from side to side and down and across like that.
Had any crashes?‑‑‑I haven’t. My friend has crashed my car, but no, not me.

The plaintiff described the process for removing his wheelchair rugby chair from his car:

Where do you keep your wheelchair rugby chair?---I have a Mazda 3 hatchback, and I basically have the back seats permanently folded down and keep it in the boot and over the back seats, I can fit it in.
It’s not a collapsible chair?---No.
So do you lift this chair into the - into the boot?---I wouldn’t - yes, I lift it onto its top so it’s facing up, and then I drag it up onto my knees, and then once it’s sitting on my knees I sort of lift it across into the boot, so it’s a bit of a process, yes. It - yes.
And you ever lose some bark getting it across your knees?---Yes.
Right?---The car tends to cop a beating too.
So generally speaking you’ve got the back area of your car laid down flat, which - the back seats are laid down?---Always.
So you put your chair in there?---Yes.
And then when you arrive at your training venue you have to get the chair out again?---Yes.
And is that - just tell his Honour how you do that?---Basically essentially the same thing in reverse. I drag it out across the back of the boot onto my lap, and then sort of lever it down onto the ground.

Photographs were tendered of the damage to the plaintiff’s vehicle as evidence of the difficulty the plaintiff has in removing and returning his wheelchair rugby chair.

University after the injury

The plaintiff felt fit enough to return to university in mid-2010. His then girlfriend drove him back to Armidale from Canberra in late June or early July. He described the difficulties of moving back into college as a quadriplegic. An email exchange between the plaintiff and the Master of Austin College was tendered in the proceedings. It detailed the plaintiff’s concerns with the initial proposal the college made for him to live in a room next to a communal bathroom with a disabled stall. The plaintiff mentioned that he required certain aids including catheters and enemas which would cause embarrassment if required to be taken into the communal bathroom and also expressed concern about his greater than normal susceptibility to infection. The plaintiff said the university and the college were “extremely accommodating” and renovated what had previously been a visitor’s flat, with its own bathroom, for him to reside in.

He was no longer able to work in his vacations as he had done previously, however he was eligible for a disability pension from Centrelink and used the money from that pension in addition to money from his parents to fund what he needed.

The plaintiff said he used a computer for his study. He said he typed with his left hand and one finger on his right. He said that before the accident he could probably type 80 words a minute but that now he could type only 40-45 per minute. The plaintiff was right-handed and lost the efficient use of his right hand in the accident. He said he could not write in any practical sense with his left hand when he returned to university, but that it had improved since that time. A sample of the plaintiff’s handwriting from his left hand was tendered in the hearing where he wrote his name and the date; it was clear from that sample that the plaintiff did not have the ability to hand-write effectively. The plaintiff said he could complete forms, but that it took some time.

As a result of the plaintiff’s disability he had a scribe for the purposes of exams who wrote down his dictated answers.

The plaintiff said access at the university to attend lectures was difficult. In many cases he was required to take a “long roundabout route” to travel between floors. Some lecture theatres did not have access. As the university’s online system was very good and the lecturers tended to have lectures online the same day they were given, he “quickly moved to listening to them online”.

The plaintiff said there was “no way” he could get from the college to the university in his wheelchair as “the whole university’s built on a hill”. The plaintiff therefore drove everywhere on campus including going to the library which he used a lot.

When the plaintiff would travel in his wheelchair on campus and was faced with stairs he said he would “bum up the steps”. This would involve him transferring from his wheelchair to the first step and then lifting himself up or down the steps. Whoever was with the plaintiff would then carry his chair to the end of the steps and the plaintiff would re-transfer to it. He also described occasions where his friends would carry him up or down stairs, but he considered that inappropriate for a formal setting.

At rehabilitation at Moorong in 2010, the plaintiff initially tried to do four units at university, but realised that was impossible and withdrew from three. He said he “just scraped through” in the remaining unit. The plaintiff successfully completed the other units in later semesters.

The plaintiff said his social life was very different after the accident. He could no longer play sports with his friends, he did not really like watching his friends play sport, so he did not do that anymore. As a lot of the plaintiff’s relationships prior to the accident were built around sport it meant he had to adjust. He said some people “never quite get their head around” his physical disability. He did not drink as often as he did previously as he said alcohol affects him in a different way since the accident. He also did not like going out to unfamiliar bathrooms. Access was also a problem with friends having to carry him into bathrooms and stand in front of him. Many clubs and bars in Armidale and elsewhere did not have disabled bathrooms.

The plaintiff was elected vice president of the Austin College Club in 2011. The role was necessarily modified for him, as he was unable to take notes at meetings or carry items to and from events. He said his role became more of a supervisor than that a worker or labourer. The Club ran all the social events at the college. At the end of 2011, the plaintiff applied for and was selected as the Senior Resident Fellow for 2012. He described the position as providing pastoral care, after hours support and responding to student mental health issues, referring them to counselling and making the Master aware of any problems. The position was adjusted as the plaintiff could not easily climb stairs to deal with issues as they arose, but others on his team would do so and report back to him. He found the position extremely rewarding, he felt like he was contributing.

GDLP

The plaintiff graduated from the University of New England in 2012 and has since undertaken a Graduate Diploma of Legal Practice (GDLP) at the Australian National University in Canberra. At the time that he gave evidence, he was still completing that course. He described the GDLP as involving working with three other students in a mock legal firm performing a lot of online work which was of assistance to him and “works to [his] strengths”. The plaintiff was concerned that he was a “drag” at the time of the trial “with everything [he had] on”. He said he did not want to be a “drag” on his colleagues, and would “spend a lot more time doing what I have to do. It obviously takes me longer to type things and whatnot, so you just spend additional time doing it.” As part of the GDLP the plaintiff was undertaking an unpaid internship with the firm of DibbsBarker in Canberra. He had completed 33 days of that internship at the time he gave evidence. He said he worked there four days a week. The plaintiff was contemporaneously studying electives for his GDLP and undertaking the work with the “mock firm”.

The Plaintiff’s schedule

A fortnightly schedule for the plaintiff was tendered at the hearing. It is reproduced below.

Fortnightly Schedule:
Week 1:

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Work
Gym Work
Drive Syd
Swim Study
Rugby train
Drive Canb Work
Rugby Work
Gym Drive Syd
Rugby game
Drive Canb Gym
Study/Relax
Week 2:

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Work
Rugby Work
Drive Syd
Swim Study
Rugby train
Drive Canb Work
Rugby Work
Gym Relax Rugby
Relax/Study
*I will be travelling 7 times a year to various national tournaments from Thurs to Sunday in week 2.
*I often do something with friends on Friday/Saturday nights- watch sport, BBQs, movies etc.

A daily schedule was also tendered at the hearing. This document was produced by the plaintiff and described a typical working day schedule for a Thursday since he had began his internship with DibbsBarker. It described a busy schedule that started at 6:10 am and involved the plaintiff returning from the gym or rugby between 8:30 pm and 9:00 pm for dinner, with the plaintiff going to bed around 11:30 pm. The plaintiff described having breakfast before moving his bowels as that gets his digestive system moving and makes the process quicker. The plaintiff’s mother made his breakfast for him and cooked his meals for him while he was at home. The document described the process for catheterisation and explained that this process was performed around 7 times a day, including twice while at work and once at around 2:30 am.

In dot-point notes at the end of the document the plaintiff stated some changes that he had felt since beginning his internship. Importantly the plaintiff said:

Feel like current level of activity is not maintainable long term. Although finishing school of law in august may alleviate some of this problem as I [sic] currently takes about 12 hours per week. This being said I currently don’t work Wednesday.

The plaintiff drove to Sydney to visit his father on Tuesdays. His father lived in the centre of Sydney and the plaintiff would habitually park at Central Station as access was easier from that location. He would call his father to assist him with his luggage. He would swim in the 25 metre pool at his father’s apartment in the evening. After being admitted into the pool area, he was self sufficient and could get in and out of the pool without assistance. The plaintiff would usually swim a kilometre, predominately freestyle.

The following mornings, on Wednesdays, the plaintiff had breakfast with his father and his father then carried the plaintiff’s luggage to his car before leaving for work. The plaintiff would then usually spend the day at a cafe studying with his laptop up until he had to leave for rugby. The plaintiff occasionally would require breaks when rolling his wheelchair up the hill at Central Station to return to his car.

At the time of the hearing, the plaintiff would play a game of wheelchair rugby in Sydney on alternate Sundays. He would play for about two hours starting at 9:00 am, requiring him to get up at 5:00 am in order to make the drive to Sydney. His brother would drive him on these occasions.

About seven times a year, the plaintiff travels to various national tournaments for wheelchair rugby. The week before the hearing the plaintiff travelled to Melbourne for a “classification” on Thursday and to play on Friday, Saturday and Sunday. He went as part of the NSW team. The classification involved getting assessed by five separate occupational therapists in order to classify his disability compared to the other participants in the sport and give them a score. As the plaintiff related the system, a team of four is allowed 8 points on the court; if a person receives a lower classification, that allows more able people with higher classifications on the court. The plaintiff was classified as a 3. He said he was borderline 2.5 and 3 and was disappointed with the higher classification, presumably because that would make him less valuable on the court where a lower classification would have allowed a person with a higher classification to play along with him. An email newsletter from Wheelchair Sports NSW was tendered which named and congratulated the plaintiff for his performance in the tournament.

The plaintiff explained his function as being insufficient to play wheelchair basketball. He would have been well towards the bottom of the lowest classification and “pretty much useless as a player”.

When the plaintiff went to the gym on Sundays or Fridays he would usually spend an hour and half there.

The plaintiff said he would relax on every second Sunday. Relaxation involved watching sport on TV and spending time with family and friends.

Accessibility

The plaintiff described in evidence difficulties he has in finding a place to park, and travelling distances in his wheelchair and especially up steep inclines. He described the difficulty he has with mounting the kerb on the street, but explained a technique a wheelchair rugby player demonstrated to him which involved the use of a road sign to hoist himself out of the gutter. The plaintiff had been practising this move. He said his muscles became tired, especially the right triceps which was not as strong as the left.

The plaintiff described difficulties with getting grime on his clothing and suit for work. The grime comes from pushing the wheel chair outside and will collect on his hands and cuffs; it is particularly problematic in rain. The plaintiff needs to wash carefully before catheterising due to this grime.

The plaintiff described having no brakes on his wheelchair beyond those that work to keep the wheelchair in place once stopped. If he wants to stop while moving he has to use his hands.

The plaintiff described having difficulty with doors, especially doors that swing, and his wheelchair would frequently scrape against them as he was trying to gain access.

The plaintiff described being able to transport coffee cups by placing them between his legs on his chair.

The plaintiff described difficulties he has with footpaths that are sloped towards the road, for what he assumed was rainwater runoff. He described the difficulty in constantly needing to push with one arm and break with the other and requiring occasional stops in order to recover. The plaintiff explained he found moving around in Canberra easier than in Sydney because Canberra was flatter. The plaintiff described choosing parking spaces so as to more easily reach his eventual destination in his wheelchair. He also explained he would sometimes go on the road rather than on the footpath as bumps in the footpath caused him difficulties.

The plaintiff described difficulties in transferring from his wheelchair to other seats. He described greatest difficulty in bathrooms not modified for wheelchair use. He related one fall he had in a bathroom in a hotel in the Christmas period preceding the hearing in April. He said injuries resulting from falls of this nature are limited to grazes and bruises depending onto what surface he falls.

The plaintiff described problems he had in transferring to his rugby chair:

And you - I think you told us yesterday how you get the wheelchair rugby chair out of the boot [of your car]?---Yes.
You can’t fit it in - just disassemble it and throw it over the front
seat?---No.
And is it a struggle to get it out of the boot and to put it back in?---Yes, but it’s something I guess you work on a lot because being able to get it in and out yourself means you can train by yourself, so yes, but it’s hard.
And then once you’ve got the wheelchair out of the car and you’re in your own wheelchair - - -?---Yes.
- - - how do you then get to the training point?---I put all my gear, and sit it on the rugby chair, and then you kind of push with one hand and then control and steer holding the rugby chair like that, and push down to the court.
One handed?---One handed.
With your right hand?---Yes. And you use the - obviously you can steer using the front - the rugby chair.
Right. And you arrive at the training point?---Yes.
What do you need to do there?---I guess put on my gloves and equipment and strap up. Transfer into the rugby chair and - - -
What does that mean?---I have - put on these gardening gloves. They are effectively from Bunnings. And then I - there’s a whole taping routine that I do, both hands obviously. You have arm guards up here, either side, which need to be taped as well. Transfer in - sorry, my singlet on. I then transfer into the rugby chair, and there’s five different straps I need to do; one round my ankles, either leg, a ratchet strap around my waist and a strap around my chest.
And then you’re set?---You need to spray this sticky stuff onto your wheels as well to get grip. But yes, after that, good to go.
How long does that take?---Probably at least 20 minutes.
And what time does training get underway?---4 o’clock.
And what does training entail?---Obviously it varies, but yes, just fitness, skills. I don’t know. We work on tactics or - yes, just standard stuff. It goes for two hours.
All right. And then you - then you get - take your strapping off and get back into your ordinary gear?---Yes.
And push the - - -?---Yes.
- - - wheelchair training chair back to the car and so on?---Yes, back to front, yes.
So what time do you - are you ready to leave?---I usually get out of - probably around 20 past 6, 6.30.
And then you drive back to Canberra?---Yes.

The plaintiff was asked about food preparation. He told of how at college weekday meals were included in the cost of accommodation and his friends would cut his meals into manageable sizes for him. He said he could not cut anything unless it could be done one-handed with a fork. For dinner on the weekends at college the plaintiff would eat frozen meals prepared by his mother and his aunt. The plaintiff was asked if he did any cooking, he replied: “Of course if I sat there for a length of time [I could], you know, get something together but it is the time concerned, it would take me so long, there is the risk of burning, you know, trying to manipulate fry pans and whatnot, baking dishes, it is just a nightmare so no.”

He agreed he had been continually improving his ability to manoeuvre his wheelchair over the years since the accident. He was taken to his fall in Coffs Harbour and explained that as he improved he thought he could transfer over greater distances and in this instance “took on something [he] probably couldn’t do”.

The plaintiff explained that the wheelchair he was using on the day of the hearing was his second wheelchair, his first wheelchair was supplied in mid-2010 and was worn out by mid-2012.

Health

The plaintiff did not have a urinary tract infection at the time of the hearing. He mentioned however that “public toilets or public places even now are just prone to infections, especially urinary tract ones, so I try to use my own bathroom wherever possible.”

The plaintiff said that if he gets influenza or a like illness, he is less able to deal with it because his immune system is weaker than the average person. He has lost efficient use of his diaphragm, so his lung capacity is not what it was. His coughing or sneezing was “a tiny little sound”. If water went down the “wrong way”, or something got stuck in his throat, he had a difficult time to cough it up. He said it was harder to cough up sputum. In rehabilitation, anytime the plaintiff contracted influenza or a sickness with phlegm, he would need to seek physiotherapy treatment on his chest to “get it up”. This treatment was described as similar to the “CPR” process whereby the physiotherapist would push down on his chest while he coughed. The plaintiff has not had such treatment since leaving Moorong and said “the phlegm just tends to hang around because of that”.

He said swimming helped with his breathing, and rugby and the gym made him stronger so he can “go further”.

The plaintiff was asked how he knows when he needs to catheterise. He replied:

Basically I get a weird sweat on my forehead when I need to go. It’s apparently - or I’m told from doctors it’s small cysts, symptom of dysreflexia, which is just something that happens to quads when they’re - I don’t know, their bodies - you’re doing something bad to your body, so I also get, when I really need to go, a weird sensation in my penis and that’s, you know - I know I’ve got a couple of minutes to get there or I’m going to wet myself.

He said that the times when he catheterises may change from day to day. If he fails to catheterise at the right time he would wet himself. He described this as being only a small amount, but enough to stain his clothing.

The plaintiff gave evidence of difficulties he has with urinary incontinence, resulting in stained or damp clothing. He described a situation during his internship where he was having a conversation with a solicitor at that office and he did not want to leave that conversation, he tried to hold on but had a small leak. He said that as soon as he had a “leak” he knew “it’s definitely time to go”. He said he can usually avoid the issue of urinary incontinence as it does not happen often and he usually knows when it is coming. The issue would arise for him when he was in a meeting or similar gathering and he tried to stay longer, or when he was in a location where there was no access to a disabled bathroom. He said “I’ve often, I guess, come to the point where I’ve gone, you know, behind a building or something with a friend standing in the way just to get it out in time, which is, you know, pretty gross and not something I’d like to do often.”

The plaintiff was asked about urinary tract infections (‘UTI’), he said they were “one of the biggest problems in my life generally”. He agreed he had learnt to avoid public lavatories and such places. The most recent UTI the plaintiff had had was three weeks prior to his giving evidence. He described it in evidence in chief:

And did you have a really bad one?---Yes.
Will you tell us, looking back, when you think you acquired the infection?---Yes, I was away in Armidale for the weekend visiting friends.
And as best you can tell in the scheme of the occurrence of a UTI, you started that on the weekend?---That’s when I claim it as occurring, yes.
Right. And after that, did you have any immediate symptoms, or does it take a little while for them to start?---You just start feeling a bit weaker, just not as able. I didn’t really - you know, that could be any number of things, so you kind of ignore it at that point. I started feeling bad on Tuesday night when I was driving up to Sydney the following week.
Right. And when you say “bad”, what do you mean?---Headache, tired, lethargic is probably the biggest thing at that point in time.
And is there any change in the colour of your skin?---I don’t think so at that point, but I guess I don’t really know.
You don’t look in a mirror much?---No.
Right. Fever?---That started occurring the following day, on the Wednesday.
Appetite?---Diminished.
And is it in general terms occasionally associated with urinary incontinence?---Yes, it - basically what happens is you have to go to the bathroom a lot, lot more. Your bladder, like, you start urinating just a couple of hundred mils rather than 400 or 500. So basically you’re going to the bathroom a lot more. My urine smells, like, bad, and so that’s obviously a big sign.
That’s a sign of the infection?---Yes.
So that limits the availability of your being able to catheterise?---Yes, you have to do it a lot more often. Yes.
So you were driving up to Sydney on the Tuesday night?---Yes.

And did you do your ordinary swim on this occasion three weeks ago?---I did. Or I attempted to. Although I only swam 500 metres, and I did a lot of that on my back.
So, what, were you feeling not strong enough to do - - -?---Yes, just wasn’t feeling good.
Did you have any episodes of incontinence that evening or overnight?---No, I just went to the bathroom a bit more often than normal.
Okay. And catheterised?---Yes.
Yes. Because that’s what’s involved in going to the bathroom?---Yes, yes.
And then the following day, which you say you normally spend doing some work and going and having a cup of coffee at a café, were you able to do that?---I got up and had breakfast as per usual with Dad. I started to do some work but didn’t feel great, so I went back up and slept and set an alarm before rugby.
And then what happened? Did you go - - -?---I went to rugby - attempted to play.
Before you did that - - -?---Sorry.
- - - you needed to get back into the car, didn’t you?---Yes, yes.
Out of the chair?---Yes.
Was that as easy as it normally is?---No, of course not. A lady actually noticed how much trouble I was having pushing up the hill to the car and offered to help. I guess I’m pretty stubborn with that kind of thing and I said no. But it was, yes, a lot more difficult.
Where were you parked on this occasion?---At Central Station, yes.
And did you have to stop more frequently?---Yes.
Then you’ve told us about on the way?---Yes.
Why didn’t you take the lady’s invitation to push you?---I guess I don’t like getting help from others where I can. I just - you want to be as independent as you can. And I guess I see it as a sign of weakness.
There wasn’t anything cruel about what she was offering?---No, she was incredibly polite and - yes.
All right. So you got yourself into the car, and then you went out to Ryde?---Yes.
Were you able to get yourself ready?---I was able to get ready, yes.
So you managed to get the wheelchair out of the boot of the car?---Yes.
You got togged up. Did you do all your strapping and everything?---Yes, I managed to do everything.
But?---Sorry, I started training and obviously it [sic] was just incredibly weak and so pretty much stopped within half an hour and just watched. It’s a pretty common occurrence at training. Everyone’s used to it. People just get affected by the heat or have UTIs. Everyone pretty much accepts it as normal and, yes, just totter off.
So what did you do then? Did you watch it through to the end, or did you - - -?---Yes, I did. You don’t want to miss out on any of what’s going on, so I just watched, yes.
...
Okay. So did you then drive home?---Yes.
And how was the drive home?---Extremely difficult. I felt, like, absolutely crap for the whole way, and it was pretty much just in my head, I just wanted to get home and go to sleep.
Did you have any breaks?---I had a short break. I didn’t get out of the car. Just got a coffee and a coke to keep awake. I guess I do this often, even when I don’t have UTIs. Just because it takes so much time to get in and out of the car and whatnot, I urinate into a bottle and just, yes, place it and then throw it in the bin when I get home.
You still have to catheterise?---Yes.
All right. And on this occasion did you have available to you at home when you arrived home some antibiotics specifically for the UTI?---Yes, I tend to ask - a lot of quads, including myself, tend to ask the doctor just for a broad-ranging antibiotic to have on hand, I guess, you notice the symptoms and you know when you’ve got a UTI generally. So rather than having to, you know, go to the doctor, get tested, get a script then get antibiotics, which can take a week, and by that time you’re absolutely screwed, you know, you’re out for the count, it’s a lot better just to have a couple of antibiotics on hand so you can start taking them straight away.
But not every doctor will agree to prescribe in advance, that’s right, isn’t it?---Of course not. A lot of - you know, it’s heavily debated, I guess. Some don’t, some do.
But the GP who cares for you in Canberra is happy to - - -?---Yes.
- - - provide a script in advance?---Yes.
So you arrived home on that evening?---Yes.
Had you had anything to eat?---I had not eaten much, no.
Did you feel hungry?---No, you are at that weak stage when you are sick, I guess, like any normal person when they are sick, you just do not feel like eating and it is hard to keep food down.
So what did you do when you got home?---I was absolutely exhausted and I called Mum and asked her to help me from the car just to - - -
You could not get out of the car?---I do [sic] not feel like I could, no.
All right, and did she - you were parked outside your house so ‑ ‑ ‑ ?‑‑‑Yes.
- - - she came and helped you?---Yes.
And how did you go getting up into the house?---I pushed myself up once I was out of the car and went straight to bed.
And you had some antibiotic?---Mum bought me some Panadol for the fever and also some antibiotics, yes. I knew straight away what it was and - - -
Had you known for a while by that time?---Yes, yes.
And then she had to wake you up?---I wanted to get - - -
To have some more antibiotic?---You have two antibiotics at four periods during the day.
Four hour?---Four - no, six hour period, so four times a day, sorry. And obviously you want to get on the urinary tract infection straight away so she woke me up during the night to keep that.
Now, did you have work the next day?---Yes.
And what was your work situation the next day?---I had just moved into the insurance section of the firm. It was my second day in that section so I - - -
Did you go to work?---I dragged myself out of bed, yes. I did not feel like I could but I - you want to make a good impression, you do not want to be calling in sick the second day in, so yes, I went to work.
What was the standard of your work you did on that day?---Absolutely rubbish. I found myself staring into space while the photocopier was going, you know, you just - I was just trying to get through the day without anyone noticing.
When did you start to feel better as a result of taking the antibiotic?‑‑‑Probably Friday night after a good rest and being on antibiotics for a couple of days.
So were you still in the same condition on the Friday as you were on the Thursday?---I was, yes, yes.
But you made it through the end of the week?---Yes.
What did you do on Friday night?---Went home and slept.
And is that what you did on the Thursday night as well?---Yes, yes.
And then did you start to feel better on the Friday night?---On the Friday ‑ probably it was the Friday night I was starting to feel better and by Saturday, obviously a good night’s sleep, you know, sitting around doing nothing, yes, started to feel better Saturday morning.
When did you feel you had entirely recovered from the UTI symptoms?‑‑‑Probably Sunday afternoon.

The plaintiff also gave evidence about suffering faecal incontinence. He mentioned having “a few episodes” initially at rehabilitation and in the time after leaving Moorong. He mentioned a couple occurred in his sleep that his mother cleaned up. He then went two years without any problems until two weeks before the hearing. He was in Sydney with his father on a Tuesday evening and they went to a soccer game at ANZ Stadium, Sydney, and he said “out of nowhere” he soiled himself. He managed to contain the problem to his underwear and he cleaned himself up in the disabled bathroom. It took him 40 minutes to an hour before he could return.

The plaintiff described what happens when he is injured to the desensitised part of his body: “Basically the problem that arises is you’re sitting on [a wound] or leaning against it permanently because I’m in my chair all day, so it takes a lot longer [to heal]. I basically try to quicken the process by - I’ll sleep on my tummy if it’s on my back so that at least overnight it gets time. But then you obviously get rubbing that just basically keeps the wound - and I’ve actually got small red scars on my back just from the wounds, because they take so long to heal.”

The plaintiff explained he normally went out for lunch while at work for his internship as he wanted to “hide [his] deformities as much as possible”. He described the difficulty he would have in cleaning/washing up after himself if he were to stay in the office and eat and did not want to display that to his co-workers.

The plaintiff would go out “for a push” at lunch time in order to alleviate tightness and spasms. The plaintiff explained that he gets feelings of tightness in his legs and a “sort of heavy feeling”, and if he triggers a spasm in his legs that alleviates the feeling. He demonstrated such a spasm in the course of the evidence. The plaintiff lifted his leg and said that he created the spasm to begin with and then “let it run out”; his leg shook with the spasms for a few seconds. The plaintiff said he would trigger the spasms about three times a day, but that it would vary.

The plaintiff described being able to feel pain or heat in his legs. He said it was “a bit of a weird sensation, but [he] can still feel it”.

The plaintiff mentioned problems with fatigue. He gave evidence that he became “incredibly tired just with the amount of activity” he was doing at the time. He said his schedule had “killed his social life” as between school of law, rugby and work he did not have time for anything else. He said he found lying down more comfortable and that at university he did most of his work lying in bed with his laptop. He mentioned at the end of a day at his internship he felt “stuffed”. He said especially Thursday mornings he did not want to get out of bed. He said he could not maintain his schedule long term, he said he was just “looking to August”, when he would graduate from the school of law at ANU and receive his GDLP.

Internship with DibbsBarker

In relation to his internship, the plaintiff said he loved being at work. He said he loved it not in the sense of loving the work itself, but rather being part of a community. He felt he was “more of a normal person” as a result. He said he did not “want to spend the rest of [his] life sitting at home on a pension or anything like that”. He said he enjoyed being challenged.

At work he had been given a few legal research tasks, but he believed they were simply tests as he did not see a file for them to go on. He had mostly been going to court and watching solicitors’ submissions. He had drafted a few wills. At the time of the hearing in April, he had recently moved to the insurance section of the office where there was a lot more work for him to do. He said a couple of weeks before the hearing he had been given a fresh case to work on and had been allowed to draft the defence for it.

The plaintiff was asked how he felt about asking people to help him in the course of the work he had been doing. He replied:

I guess you try not to, because obviously at times you have to, but, where you can, you try to do it yourself, just because you don’t want to look, I guess, not as good as anyone else. You’re competing, or you want a job, so if you’re going to be troublesome all the time, you’re not getting to get a job. It’s going to be hard work for someone else to have you there.
And they’re not your carers?---Yes, exactly.
And - but how do you find the staff at DibbsBarker?---They’re great.
When you ask them to do something?---They’re obviously extremely understanding. Most people, like - yes.
Do you see that happening long term in any employment?---I guess it’s going to have to. What else can you do? But, yes, it depends on the person. But, yes, most people - - -

He said a great difficulty with the work he had been doing was in taking notes. He said he could type much faster than he could write, but not as fast as he would want to. He has to take longer to do the task or take more succinct notes. He was not satisfied with his capacity in that regard: “if you look at the graduate next to you and they’re doing something twice as fast as you, it’s not a good feeling. And obviously it makes you less employable if they can do it better or quicker.’

The plaintiff used a left-handed mouse and a touch-type keyboard to assist him at home.

The plaintiff explained the difficulty with having only one working hand in an office environment. He said he could use speakerphone when on a call to allow him a hand free, however, in an open plan office that may not always be appropriate.

The plaintiff described an occasion at his internship where he had to go and inspect some contracts. He was unable to access the building, and did not in the end see the contracts, with another member of the firm being sent to assist him and perform the task. He said that over time at his internship he had been entrusted with more difficult tasks. He had been told he was doing a good job.

Relationship

At the time of the plaintiff’s second visit to Green Valley Farm, he had met a girl, and about six months after the accident, when he exited rehab, they started dating. The plaintiff said they were able to have a relationship of intimacy with the assistance of medication. He said there were difficulties with him being in a wheelchair. He said in evidence in chief:

We broke up about - a bit over a year ago.
And did the reasons for the break-up have anything to do with your condition?---I guess a relationship - any relationship has issues, but I guess being in a wheelchair brings its own set of difficulties and makes it a lot harder generally - sexually and, I guess, also the amount of care that - being in a relationship with someone is meant to make their life easier whereas, in a lot of ways, I probably make it harder.
I don’t think there’s any doubt about that. Did she give you assistance and help?---Of course.
Okay. And did she find that difficult? Did she tell you?---Yes.
And what sort of bearing did that have on the break-up?---It just - it just makes it difficult. It’s just another issue amongst - as I said, relationships have issues, I mean, with two able-bodied people. And then you add in all this other stuff, and it just makes it that much harder and, yes, it had - of course it had a bearing on the break-up. Going out with someone - you know, for her, you know, going out with someone in a wheelchair, her friends look at her and say, “Why are you doing that? You know, why would you want to be with someone who’s like that for the rest of your life? Life’s going to be difficult for you. You’re going to have to care for them.” So, yes, it has a bearing.

The plaintiff had had no serious relationship since that time. The plaintiff said he could produce children with the assistance of medication and wanted a family.

The plaintiff’s future employment

The plaintiff’s Curriculum Vitae (CV) was tendered in the proceedings, it was not his current CV but was the CV he used to apply for various positions in 2012 as an undergraduate. The CV was accompanied by a reference from the Master of Austin College. The plaintiff had applied to a series of Government Departments including the Department of Prime Minister and Cabinet, the Attorney-General’s Department and the Australian Tax Office. Outside the public service, the plaintiff applied to organisations including Macquarie Group, the United Nations High Commissioner for Refugees and Bradley Allen Love, a firm of solicitors. The plaintiff was shortlisted for the Attorney-General’s Department and the Department of Human Service, and he reached the interview but not short listing stage for the ATO and Department of Health and Ageing. A bundle of emails from potential employers was tendered in the hearing which supported the plaintiff’s evidence.

He said “I want a job in the legal profession. But obviously if I cannot get a job in the legal profession I will do something else, yes. Yes, I just – yes, want a job”.

He subsequently applied for some further government departments and was planning to apply for a “whole host of both commercial and government departments” before May 2013.

He was uncertain whether he would be seeking full-time employment as he was unsure how much he could work. He said at the moment he was working 4 days a week, but did not have the private lawyer’s pressure of billable hours.

In cross examination the following exchange occurred:

You said this morning in answer to one of the questions that people who are better or quicker are more employable?---Yes.
But you would appreciate, would you not, that as a lawyer it’s more important to be smart and get things right than to be quick? You’d appreciate that?---It’s a combination - I would appreciate that it’s who can get things smart and right done the quickest.

The plaintiff said most of those with whom he had studied law had obtained work at the time of the hearing.

The plaintiff said a difficulty with working in a legal office was access to a disabled bathroom. He said he still had not been to a law firm that had one. He has also experienced law firms which do not have ramps to their offices. He mentioned getting his legs under tables can be difficult. He said a photocopier is difficult to use as he cannot easily access the screen. He cannot access certain narrow corridors and cannot use a compactus as he cannot open it, or fit his chair into it or retrieve a file from a high shelf.

The plaintiff was asked whether he had seen in his internship that the solicitors in that office had secretarial and administrative staff to assist them for task such as collecting files, and the plaintiff agreed that those staff existed to assist but that he thought lawyers would retrieve their own files. The plaintiff was asked about the use of voice recognition software, he said that he was proficient in its use and used a program with a legalese module called ‘Dragon’. He was asked about the use of Dictaphones and agreed he could probably use one single-handed, but said that he used voice recognition software instead.

The plaintiff had voice recognition software and necessary equipment set up at home, but that was not available at his internship with DibbsBarker.

Elise Cherrie Eddison

Elise Eddison gave evidence for the plaintiff at the hearing. She studied at the University of New England at the same time as the plaintiff.

Ms Eddison had used a trampoline as a child from the ages of five to ten at her friend’s house in Springwood, NSW. She never attempted somersaults or back flips as she was too scared. Ms Eddison had experienced injury on the trampoline from the springs holding the mat when getting on and off, but never from jumping on the mat itself.

She attended the Mystery Bus Tour in 2007. At that time she remembered the jumping pillow being there and jumped on it herself. She remembered the students that were attending the tour in 2007 doing somersaults and back flips on the pillow. She could not remember if she saw children jumping and doing somersaults in 2007.

Ms Edison attended the tour in 2009 also. She recalled arriving around lunchtime, but could not recall the exact time. She spent a lot of her time that day with fellow Resident Fellows, Tim Andrews, Jessica Cox and Glen Barnes.

Ms Eddison took a number of photos that day which were tendered in evidence at the hearing. She took photos of the attractions at the Farm including the jumping pillow and attractions referred to as the “tyre pyramid” and the “metal cone”. In addition to going on the attractions just mentioned, Ms Eddison also went on a roller coaster. Riding the roller coaster involved manually pushing a cab from the base of the rails to the top where the rider would get in. She went to ride the roller coaster with Jessica Cox and Tom McKeon. There were other students there at the time waiting to use the ride. She agreed she was conscious of the need to allow other people a turn after hers.

Ms Eddison remembered one incident involving a spinning metal bar bowl or inverted cone which she explained would begin to move straight after climbing in and moved round and round in a circular or oval trajectory dipping down occasionally. Getting out of the cone involved climbing up inside and over the top. Ms Eddison had already been on the ride earlier in the day and was observing other students from the ground beside the ride when she saw Yvette Eckman fall as she was climbing out of the cone. Ms Eddison went over to assist Ms Eckman as she had fallen “quite a long way”, however she was unharmed.

(b)     the likely seriousness of the harm,
(c)     the burden of taking precautions to avoid the risk of harm,
(d)     the social utility of the activity that creates the risk of harm.

I am satisfied that the risk of harm to the plaintiff was foreseeable. I am further satisfied that it was not insignificant, as the evidence of Dr Olsen clearly shows, but this may also be inferred from the recommendations of Jumping Pillows Pty Ltd in its letter of 28 August 2009

I am further satisfied that reasonable persons in the position of the defendants would have taken precautions against that risk by prohibiting the performance of somersaults and other inverted manoeuvres on the pillow, and placing signs to that effect prominently adjacent to the jumping pillow. The cost of taking these precautions was miniscule, whereas there was a real risk of catastrophic harm occurring if they were not taken. Had the defendants taken that simple precaution, this tragedy would not have occurred.

I am satisfied that the defendants were negligent, and that this negligence caused the injury sustained by the plaintiff. Nothing in the CLA operates to avoid this finding, or to relieve the defendants of their obligation to compensate the plaintiff.

The defendants were negligent in:

a) Failing to prohibit back flips or somersaults and other inverted manoeuvres on the jumping pillow;

b) Failing to provide any sign or notice in the vicinity of the jumping pillow advising that back flips and other inverted manoeuvres were prohibited;

c) Failing to inform the plaintiff that performing back flips or other inverted manoeuvres was prohibited; and

d) Failing to direct the plaintiff to cease carrying out back flips or somersaults.

DAMAGES

In the event that the defendants were found liable with respect to the plaintiff’s injuries, the parties very sensibly agreed on appropriate sums with respect to a number of heads of damage:

(a) accommodation $975,000

(b) equipment $940,000

(c) travel $145,000

(d) past out of pocket $225,000

The 3 remaining areas of dispute, as set out in the defendant’s written submissions on damages, are:

(i) economic loss;

(ii) domestic assistance; and

(iii) non-economic loss.

Economic loss - past

The plaintiff claims for both past and future economic loss. The claim for past economic loss is based on:

a) the probability that the plaintiff would have completed his Arts/Law degree by November 2011 but for the accidents, and would have found employment as a lawyer in private practice or in a government legal office, department or authority after admission to practice;

b) the probability that the plaintiff would have worked part-time while finishing his studies but for his injury; and

c) the probability that the plaintiff would have obtained an appointment as an Academic Mentor and as a Residential Fellow in both 2010 and 2011, with a resultant fee reduction.

In my opinion, the plaintiff’s low UAI score and his university academic record would have made it difficult for him to obtain employment in private practice after admission as a legal practitioner, except in small to medium sized local firms. It is probable that he would have found employment in such a firm, or in a public sector legal environment. It is probable that but for the accident he would have gained employment around January 2013.

I accept that the plaintiff would have worked part-time during university vacations, as he had done in the past, but for his accident. He has claimed a total of 27.42 weeks at $1028.13 net per week for the 2009/2010 and 2010/2011 vacations which appears to be a reasonable approach. This amounts to $29,191.32. Taking a middle date of 1 January for each of those periods, I award interest of $4842.06 and $3565.24 for the first and second vacation periods respectively.

It is probable that, but for the accident, he would have completed his law studies by November 2011, and would have then sought employment while he was completing his GDLP. It is probable, bearing in mind the relatively limited employment market likely to have been available to him, that it would have taken some time for him to find employment, particularly as he would have graduated just before Christmas, a time when both public and private sector employment slows down. I would allow 74 weeks from the beginning of March 2012 until 9 August 2013 when the hearing concluded, at net rate of $44,500 per annum ($55,000 gross) or $848.56 per week as claimed by the plaintiff. This equals $62,793.44. This results in a total figure for past economic loss of $91,984.76.

I allow a further $10,118.32 for loss of superannuation benefits on that sum: s 15C CLA.

Interest on $91,984.76 to 9 August 2013 is $3318.16 and to judgment is a further $2373.23. I allow those amounts.

The plaintiff’s claim based on his prospects of obtaining a position as an Academic Mentor and Residential Fellow in 2010 and 2011 is too speculative to allow.

Economic loss - future

Both parties agree that, in calculating the plaintiff’s future economic loss, I must apply s 13 of the CLA:

13 Future economic loss-claimant’s prospects and adjustments
(1) A court cannot make an award of damages the future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

Hodgson JA in Macarthur Districts Motorcycle Sportsman Inc v Ardizzone [2004] NSWCA 145 at [5] said this about s 13:

In general terms, the “assumptions” referred to in s 13(1) and s 13(3) are the views about what the future economic situation of the plaintiff would have been but for the injury, with which the court compares the future economic situation of the plaintiff resulting from the injury, as it is understood to be. Normally, these views will be expressed in terms of a capacity to earn a certain amount net per week as from the date of hearing until an estimated retiring date, perhaps with adjustments for promotion or other possible circumstances which could be anticipated as affecting earning capacity.

The defendants submitted that any attempt to calculate precisely the plaintiff’s future economic loss is likely to be highly speculative as there is no evidence of his pre-accident earnings as a lawyer, as he suffered his injuries before he finished his degree. In addition, the defendants said, the evidence concerning the plaintiff’s post-accident earning capacity is “significantly lacking”. The defendants suggest that the best method of dealing with the issue is by awarding a substantial buffer, in the vicinity of $500,000, a permissible approach under s 13: Nominal Defendant v Lane [2004] NSWCA 405, considering an equivalent provision, s 126 of the Motor Accidents Compensation Act1999 (NSW); see also Penrith City Council v Parks [2004] NSWCA 201 at [5]; K Mart Australia Ltd v McCann [2004] NSWCA 283 at [59]–[64].

The plaintiff submitted that his future economic loss should be calculated on the basis of an average lifetime income of $150,000 gross per annum after 6 years but for the injury, with a 75% loss of earning capacity and an end of working life at age 50.

It appears to me that there is little evidence to support the proposition that the plaintiff will suffer a 75% reduction in his earning capacity from the present time until his probable date of ceasing work. In truth, the method of calculating future economic loss advocated by the plaintiff has nothing more to recommend it than the defendants’ submission that a buffer be awarded. The figure of 75% suggested by the plaintiff has no basis that I can find in the evidence.

The difficulty which the plaintiff is likely to encounter in obtaining employment in private practice is that he will find it almost impossible to achieve the billable hours that can be achieved by his able-bodied competitors. The defendants provided lengthy written submissions arguing that prospective employers cannot discriminate against the plaintiff because of his abilities: s 15 Disability Discrimination Act1992 (Cth). However, it is far from clear that an employer would be acting unlawfully in employing a more efficient candidate, even if the plaintiff’s relative inefficiency is the result of his disabilities: see Purvis v New South Wales (2003) 217 CLR 92. The fact is that the plaintiff will be at a significant disadvantage compared to his able-bodied competitors in achieving employment in private practice due to his disabilities. If he were to obtain such employment, it is likely that he would be remunerated based on his efficiency in the job, meaning that he would probably be remunerated to a lesser standard than other, more productive employees.

The plaintiff will also be at a similar disadvantage when applying for positions in government organisations, such as the Australian Government Solicitor, where time recording for the purposes of billing “clients” is employed.

Whilst this problem will be less acute for the plaintiff in seeking work in a legal policy or similar area in government, it will still be a relevant factor. However, once he obtains employment in such an area, he is likely to retain it until he turns 50, the age at which Dr Buckley estimates he would probably be unable to continue in his employment. The plaintiff is highly motivated to work, and I am satisfied that he will find employment, most probably in the public sector.

But for his injury the plaintiff would probably have continued in employment to age 67. It is therefore probable that he will sustain 17 years of wage loss at the end of his working life, a time when he could expect to be receiving his optimum remuneration. In his written submissions the plaintiff estimates this loss at $303,178, on the basis of an income of $150,000 per annum, 15% discount for vicissitudes and deferral for 25 years. That appears to be a reasonable approach.

The plaintiff’s loss between now and turning 50 is not susceptible of accurate calculation. It is probable that he will take some time to find employment, whether in a legal environment or otherwise, but once he finds employment he is likely to remain in it until age 50. He has, however, lost the opportunity of achieving the higher remuneration that may come from a career in private practice. He will also not progress as far in the public sector as he would if he were not injured, again because he will be unable to compete with others in efficiency, and he will probably be unable to work past age 50.

In my opinion, a reasonable figure for the plaintiff’s loss of future earning capacity, taking into account the calculation of loss from age 50 onwards, is $750,000.

For the purposes of s 13 of the CLA, the assumptions that I make in coming to this figure are:

a) that but for his injury the plaintiff would have commenced employment as a lawyer earning about $55,000 gross per annum in early 2012;

b) that over the next 6 years his salary would have increased to about $150,000 gross per annum inclusive of superannuation, in accordance with the report from John Beaumont dated 2 April 2013;

c) that but for his injury he would have worked to age 67; and

d) that he will now cease employment at age 50.

I allow loss of superannuation benefits at 11% on $750,000 being an amount of $82,500.

Domestic Assistance

The defendants submit that there should be no allowance for gratuitous domestic care for the period that the plaintiff was in hospital, as “it is the need for care which is compensable”. They submit that whilst the plaintiff’s parents supported him through a troubling time, his care needs were met by hospital staff. The plaintiff submitted that the question of entitlement to compensation for gratuitous care is to be resolved by consideration, and application, of s 15 of the CLA, which provides:

Damages for gratuitous attendant care services: general
15 Damages for gratuitous attendant care services: general
(1) In this section:
“attendant care services” means any of the following:
(a)     services of a domestic nature,
(b)     services relating to nursing,
(c)     services that aim to alleviate the consequences of an injury.
“gratuitous attendant care services” means attendant care services:
(a)     that have been or are to be provided by another person to a claimant, and
(b)     for which the claimant has not paid or is not liable to pay.
(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(a)     there is (or was) a reasonable need for the services to be provided, and
(b)     the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c)     the services would not be (or would not have been) provided to the claimant but for the injury.
(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):
(a)     for at least 6 hours per week, and
(b)     for a period of at least 6 consecutive months.
(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed:
(a)     the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:
(i)      in respect of the whole of any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter, or
(ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.
(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

The plaintiff’s says that the care which s 15 renders compensable includes “services of a domestic nature” and “services which aim to alleviate the consequences of an injury”. These services become a compensable if there is, or was, a reasonable need for the services to be provided. The plaintiff submitted:

It is difficult to imagine any greater need that a person suffering a catastrophic injury has, above the basic medical care needed to treat the physical effects of the injury, than the need for help and support in dealing with the psychological impact of having the life you imagined for yourself irrevocably taken away from you. It is inevitable that it falls to members of the family of an injured person to take over the role of supporting helping the injured person to adjust to a different life. It is a combination of both physical assistance and psychological support. Assistance of that kind is not to measured against the amount of time that the professional psychologist or nurse’s aide might have spent in providing the same level of care.

In my opinion the plaintiff’s submissions concerning compensation for gratuitous care during the time he spent in hospital should be accepted. The fact that his basic needs were met by hospital staff does not mean that those services provided by his parents were unnecessary. I am cognizant of the decision in Nicholson v Nicholson (1994) 35 NSWLR 308 which came to a different conclusion concerning the liability of a defendant to pay for such services pursuant to s 72 of the Motor Accidents Act1988 (NSW), but that provision was very differently drafted to s 15 of the CLA.

The evidence of Mrs Ackland speaks of the need to provide the plaintiff with services that aimed to alleviate the consequences, both physical and psychological, of the injury during the time he was hospitalised. The hours claimed, 40 hours per week, appear reasonable bearing in mind the catastrophic injuries sustained by the plaintiff and the clear need for him to adjust physically and mentally to his condition before he returned home. Those members of his family assisting the plaintiff also learned necessary skills to assist him outside the hospital environment.

For the period 10 October 2009 to 23 November 2009 I allow $6065.71 based upon average weekly earnings of $965.00 (s 15(4)). Interest on that sum at the commercial rate until 23 November, and halved to account for the fact that the assistance was provided evenly over that period, is $33.65. Full interest at the commercial rate on $6099.36 from 24 November 2009 to judgment is $2080.6.

For the period from 24 November 2009 to 30 April 2010 I allow $21,867.86, calculated upon average weekly earnings of $975.00. Interest on that amount to 30 April 2010 is $425.97. Interest calculated as above from 30 April until judgment is $6741.75.

For the period from 1 May 2010 I allow the plaintiff’s claim based on 22.52 hours per week domestic assistance, a moderate claim in my opinion. It is a bit higher than the figure for ongoing future assistance, set out below, but it covers a period when the plaintiff’s needs were greater, and he was less capable of managing himself. As such, I allow $96,706.53 for this period. Interest over that period until judgment comes to $14,610.30.

I award a total amount of $124,640 for past domestic assistance and a total amount of interest of $23,892.27 apportioned over the period as explained above.

Turning to the need for future domestic care, Dr Buckley in his report of 27 October 2012 said that the plaintiff would require two hours of care per day up to age 50, eight hours of assistance a day between ages 50 and 65, and beyond the age of 65 he will need full-time care or a live-in companion. Associate Professor Jones in his report of 23 January 2013 said that the plaintiff will require two to three hours per week up to the age of 60 and about 10.5 hours per week thereafter.

I am satisfied that the plaintiff will be able to find employment, in which case a figure of two hours a day domestic assistance is appropriate, based on the evidence of Dr Buckley, up to age 50. There is little difference between the opinions of Dr Buckley and Associate Professor Jones, but the opinion of Dr Buckley is to be preferred because it more realistically allows for the likelihood that the plaintiff will suffer from considerable fatigue if he is employed.

I am satisfied that it is probable that the plaintiff will not be able to work past the age of 50, consistent with the opinion of Dr Buckley. However, whilst the plaintiff’s physical condition will have deteriorated to the point that he cannot continue in employment, he will not be totally incapacitated. He will, in all probability, be able to care for himself to the same extent as he did when he was employed, having more time to do so and being able to rest as required. For that reason I prefer Associate Professor Jones’ opinion that between 50 and 67 years the plaintiff will not require any greater assistance than was available to him before he turned 50. Using a multiplier of 931.6 for 42 years, reduced by 15% for vicissitudes, gives a product of $498,871.80.

The plaintiff claims, for the period after he turns 67 until his life expectancy age of 80, for either full-time care, by way of live-in carer, or a carer doing an eight hour shift per day. The defendants submits the latter option is appropriate bearing in mind the fact that the plaintiff will not be in employment and his condition is not likely to be such that he requires someone to be with him every minute of the day. I noted that Dr Buckley accepted that “shiftwork could be quite adequate” for the plaintiff’s needs. In addition, as the defendants submit, having regard to the amounts agreed upon for the plaintiff’s accommodation and equipment, there is reason to be confident that he will have appropriate equipment for self-care at his disposal. However, the claim by the plaintiff for full-time care is based on ordinary weekly earnings of $1300, in my opinion a moderate sum. As a quadriplegic, it is probable that he will require more than eight hours a day of assistance by the time he is in his late 60s, so I allow the plaintiff’s claim based on the cost of a full-time carer; deferred for 42 years the plaintiff has calculated this sum to be $71,600.

The plaintiff also claims for gardener/handyman assistance at a rate of three hours a week for life. I accept this as a reasonable and appropriate claim and award $142,286 for this head.

Non-economic loss

An award of non-economic loss is governed by s 16 of the CLA which provides that damages for non-economic loss are to be fixed as a percentage of the most extreme case, having regard to the severity of the plaintiff’s non-economic loss. The present maximum amount under s 16 is $535,000. The plaintiff submits that he should be awarded 100% of this figure, while the defendants submit 85% is appropriate.

I accept the plaintiff’s submission that the maximum allowance under s 16 is to be made in “a most extreme case”, which is not to be equated with “the most extreme case”. The question is, whether the present case falls within a class of cases that may be described as “most extreme”. This case borders on that class of case. The plaintiff is a young man who will be confined to a wheelchair for the remainder of his life. He no longer has the use of his legs or effective use of his dominant arm. He will be subject to significant health issues for the remainder of his life. His ability to play sport and to enjoy a normal family life have been severely restricted. I note, however, that he is able to carry on a reasonable number of activities of daily living without assistance, including driving a motor vehicle. He is able to participate in wheelchair rugby and attend the gym. He was also able to complete his University degree, and is capable of working.

On balance, I assess damages for non-economic loss at 95% of the maximum, being $508,250. I award half of that amount to the past and half to the future. Interest on the past component for the approximately 4 years 4 months since the accident I round to $23,000 weighted slightly more towards the beginning of the period.

Contributory negligence

The defendants made no submissions in support of the allegation of contributory negligence. The issue is to be decided in accordance with the provisions of s 5R of the CLA:

5RStandard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligence also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

I am not satisfied that the defendants have established that the plaintiff was guilty of contributory negligence.

CONCLUSION

I award the following damages:

Non economic loss (95% of $535,000) $508,250.00

-    Interest $23,000.00

Accommodation $975,000.00

Equipment       $940,000.00

Out of pocket expenses          $225,000.00

Travel              $145,000.00

Past domestic care      $124,640.00

-    Interest $23,892.27

Past economic loss      $91,984.76

-    Loss of superannuation $10.118.32

-    Interest $14,098.69

Future economic loss $750,000.00

-    Loss of superannuation $82,500.00

Future domestic care

-    to age 67

$498,871.80

-    past age 67 $71,600.00

Future gardening/maintenance $142,286.00

$4,626,241.84

Judgment is accordingly entered for the plaintiff in the sum of $4,626,241.84.

The defendants are to pay the costs of the plaintiff. This order is stayed for 21 days to allow the parties to relist the matter for any argument in relation to costs.

I certify that the preceding three hundred and fifty eight (358) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 21 February 2014

Counsel for the Plaintiff:  Mr P Webb QC with Mr L T Grey
Solicitor for the Plaintiff:  Maurice Blackburn Lawyers
Counsel for the Defendants:  Mr J E Sexton SC with Mr D A Lloyd
Solicitor for the Defendants:  Ken Cush & Associates as agents for Lee & Lyons Lawyers
Dates of Hearing:  16–19 and 22–24 April, 30 July, and

8 and 9 August 2013
Date of Judgment:  21 February 2014

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Work Gym	Work Drive Syd Swim	Study Rugby train Drive Canb	Work Rugby	Work Gym	Drive Syd Rugby game Drive Canb	Gym Study/Relax

Non economic loss (95% of $535,000)	$508,250.00
- Interest	$23,000.00
Accommodation	$975,000.00
Equipment	$940,000.00
Out of pocket expenses	$225,000.00
Travel	$145,000.00
Past domestic care	$124,640.00
- Interest	$23,892.27
Past economic loss	$91,984.76
- Loss of superannuation	$10.118.32
- Interest	$14,098.69
Future economic loss	$750,000.00
- Loss of superannuation	$82,500.00
Future domestic care - to age 67	$498,871.80
- past age 67	$71,600.00
Future gardening/maintenance	$142,286.00
$4,626,241.84