Campbell v Woollard

[2012] WADC 48

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   CAMPBELL -v- WOOLLARD [2012] WADC 48

CORAM:   MCCANN DCJ

HEARD:   6-10 & 13 FEBRUARY 2012

DELIVERED          :   30 MARCH 2012

FILE NO/S:   CIV 2079 of 2008

BETWEEN:   KATE CAMPBELL

Plaintiff

AND

LUKE WOOLLARD
Defendant

Catchwords:

Negligence - Personal injury - Boating accident at night - Intoxicated skipper - Whether no breach of duty of care - Whether voluntary assumption of risk by plaintiff - Whether plaintiff engaged in a 'dangerous recreational activity' - Civil Liability Act s 5H - Contributory negligence - Turns on own facts

Legislation:

Civil Liability Act 2001 s 5B, s 5C, s 5E, s 5F, s 5H, s 5K, s 5L, s 9
Western Australian Marine Act 1982
Law Reform (Contributory Negligence and Tortfeasors' Contribution Act) 1947 s 4(1)
Prevention of Collisions at Sea Regulations 1983 reg 5, r 5, r 6
Navigable Waters Regulations 1958 reg 13, reg 19A, reg 48
Road Traffic (Breath Analysis) Regulations 1975
The Criminal Code s 297, s 304

Result:

Judgment for the plaintiff for $229,626.80

Representation:

Counsel:

Plaintiff:     Mr G M Cridland

Defendant:     Mr R R Cywicki

Solicitors:

Plaintiff:     Hammond Legal

Defendant:     GV Lawyers

Case(s) referred to in judgment(s):

Avram v Gusakoski (2006) 31 WAR 400

British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572

Department of Housing and Works v Smith [No 2] [2010] WASCA 25

Fallas v Mourlas [2006] NSWCA 32

Falvov v Australia Oztag Sports Association [2006] NSWCA 17

Jeffries v Fisher [1985] WAR 250

Joslyn v Berryman (2003) 214 CLR 552

Lormine Pty Ltd v Xuereb [2006] NSWCA 200

Maddren v Bell (1998) SR (WA) 191

Mickelberg v Director of the Perth Mint [1986] WAR 365

Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497

Nicol v Whiteoak (No 2) [2011] NSWSC 1486

Paul v Rendell (1981) 34 ALR 569

State Government Insurance Commission v Hitchcock, (Unreported; WASCA, Library No 970089; 11 March 1997) 10

Van Gervan v Fenton (1992) 175 CLR 327

MCCANN DCJ:

Introduction

1. In this matter Kate Campbell sues Luke Woollard for damages for personal injuries suffered in a boating accident which occurred early on Saturday, 17 November 2007 ('the Saturday').  I have found the basic facts to be as follows.

2. A function was organised at the University of Western Australia ('UWA') student tavern ('the tavern') on the evening of Friday, 16 November 2007 ('the Friday') to celebrate the completion of the second semester examinations and thus the commencement of the summer holidays ('the tavern function').

3. Mr Woollard and some of his friends (Michael Roberts, Matthew Dawson, Murry Pattison and Sam Abbott) travelled to the tavern function in Luke's father's Larson speed‑boat ('the Larson').  They set off from the Mt Pleasant‑Salter Point area of the Canning River at approximately 6.00 pm and arrived in Matilda Bay shortly afterwards.

4. Kate Campbell and her friend Louise Cook joined the boys on the Larson between 6.00 and 6.30 pm and they all went on a short cruise around Matilda Bay.  For ease of reference I shall refer to this as 'the first trip'.  The two girls drank 'Yellowglen' sparkling wine which they had brought with them.  They saw the boys drinking wine directly from the bladder of a wine cask (a so‑called 'goon-bag').  All of the boys except Michael Roberts had been drinking beer and wine since approximately 4.00 pm.

5. The Larson was beached on the banks of Matilda Bay shortly before 7.00 pm and moored using a ski rope tied between its bow and the trunk of a tree.

6. The tavern function began at about 7.00 pm (the evidence is unclear and I cannot make a firm finding).

7. The tavern function ended at approximately midnight.  Luke Woollard, Murry Pattison and Michael Roberts decided to take the Larson back to the Canning River and beach it close to Michael Roberts' home in the nearby suburb of Salter Point.  (The suburb should not be confused with the geographical feature known as Salter Point which is further upstream or east on the Canning River).  They took five passengers with them, namely Kate Campbell, David Kerr, Katherine Kerr, Gregory Wishart and Matthew Suter.  I shall refer to this as 'the second trip'.

8. Shortly before 1.00 am on the Saturday, and whilst Luke Woollard was at the helm of the Larson, it collided with the pylon of an unlit navigation beacon located south of the Canning Bridge in the Canning River.  The point of contact was on the port bow approximately 30 cm from the mid‑line of the vessel.

9. The seats occupied by Kate Campbell and Luke Woollard were torn from their bearings, the left side of the bow was badly stoved in and the driver's console and steering column buckled.  Luke Woollard's feet were trapped under the damaged console.

10. Michael Roberts, David Kerr and Gregory Wishart were thrown overboard.  The other passengers were flung about inside the Larson.  Kate Campbell collided face‑first with a console which was directly in front of her and suffered horrible injuries, namely:

    (a)a comminuted mandibular fracture (ie, her jaw was broken in several places);

    (b)separation of the epiglottis from the thyroid cartilage with a fracture of the cartilage and bilateral avulsion of the pyriform sinus;

    (c)a transverse fracture of the C6 vertebra;

    (d)a high oesophageal tear;

    (e)a left pubic rami fracture (ie, a fractured pelvis);

    (f)a left pneumothorax (ie, a collapsed lung) with multiple lung contusions;

    (g)avulsion (ie, loss) of several teeth (her upper and lower front teeth) with associated bone loss and damage to other teeth;

    (h)a left medial malleolus fracture (ie, a fractured ankle).

11. Ms Campbell would have died from the throat injuries referred to at (b) and (d) above but for emergency surgery performed at Fremantle Hospital on the Saturday.  She also underwent reconstructive throat and jaw surgery.  She remained an in-patient until 4 January 2008 and was re‑admitted for a short period on 17 January 2008.  Her first 11 days in hospital were spent in the intensive care unit, in an induced coma or heavily sedated.

12. Thereafter, Ms Campbell underwent a protracted and at times emotionally confronting rehabilitation.  She has recovered well from her physical injuries and can lead a normal life in many ways, but she still suffers from a number of residual physical and psychological disabilities, some of which will be permanent or recurrent and will impact upon her quality of life.

13. Mr Woollard was charged and convicted (on his plea of guilty) of one count of doing grievous bodily harm to Ms Campbell (contrary to s 297 of the Criminal Code) and doing an act occasioning bodily harm to Ms Kerr (contrary to s 304 of the Criminal Code).  He was sentenced to a suspended term of imprisonment and ordered to perform 120 hours of community service.

14. In these proceedings Ms Campbell contends that the collision and hence her injuries were caused by Mr Woollard's negligence insofar as he drove the Larson without maintaining a proper lookout and at an excessive speed and, thus, failed to properly appraise himself of the risk of the collision and failed to avoid it.

15. Ms Campbell also alleges that Mr Woollard breached the statutory duties which she alleges he owed her under the Prevention of Collisions at Sea Regulations 1983 and the Navigable Waters Regulations 1958 (both made pursuant to the Western Australian Marine Act 1982).  Amongst other things, she alleges that he drove the Larson in excess of an 8 knot maximum speed prescribed for waters having a depth less than 3 m and in excess of the maximum speed of 10 knots prescribed for the waters of the Swan and/or Canning Rivers between the hours of sunset and sunrise.

16. Mr Woollard contends that at the relevant time he was visibly and obviously too drunk to safely navigate the Larson. He contends that Ms Campbell knew this and voluntarily went on the second trip knowing of the risks of doing so. So, he contends that he owed her no duty of care at common law and/or that he is entitled to the defence of voluntary assumption of risk. He also contends that, pursuant to s 5H of the Civil Liability Act 2002 ('the CLA'), he is not liable to her because her injuries were suffered whilst she was engaged in a dangerous recreational activity and the collision was an obvious risk of that activity (within the statutory meaning of the italicised terms).

17. Alternatively, Mr Woollard contends that Ms Campbell was guilty of contributory negligence in that she:

    (i)knew or should have known that he had consumed alcohol;

    (ii)elected not to take up other offers of transport which were available to her;

    (iii)knew that the second trip would be made in darkness;

    (iv)knew or ought to have known that Luke Woollard was too impaired by alcohol to skipper the Larson with due care and skill.

18. The onus of proving each of these defences lies on Mr Woollard to the same standard as the onus which lies on Ms Campbell, namely on the balance of probabilities.

19. Most heads of damage have been agreed in the total sum of $149,626.80 as follows:

(i)	Past medical expenses and the like, including private insurance refund ($11,569.95) and Health Insurance Commission refund ($5,769.50)	$79,844.47
(ii)	Future medical and like expenses, including psychological counselling ($15,600) and dental treatment ($32,130.28)	$47,730.28
(iii)	Past voluntary care and assistance including interest ($41.00)	$7,791.00
(iv)	Past loss of earning capacity including interest ($1,352.55)	$14,261.05
(v)	Total	$149,626.80

1. I have been informed that the Health Insurance Commission is not seeking recovery of any benefits other than the modest sum mentioned above, which obviously does not reflect the full cost of Ms Campbell's care and treatment at the public expense.

2. Ms Campbell makes no claim for general damages for loss of future earning capacity.  The only remaining issue in relation to quantum relates to her claim for general damages for pain and suffering and the loss of amenities and enjoyment of life and for her psychological harm.

Liability – relevant law

1. The law which applies to this matter is an amalgam of common law and statutory provisions, including the CLA.

2. Subject to the defence loosely known as 'no duty of care' (or 'no breach of duty'), it is common ground that, to the extent that he was the skipper of the Larson, Mr Woollard owed Ms Campbell and the other passengers a duty at common law to take reasonable care to avoid any foreseeable risk of causing them harm.  This required him to drive, manage and control the vessel in a competent and careful manner (see Maddren v Bell (1998) SR (WA) 191, 231 (Viol DCJ).

3. Rule 5 of the Schedule to the Prevention of Collisions at Sea Regulations, read with reg 5, requires the skipper of a vessel to keep a proper lookout by sight and hearing at all times. Rule 6 requires the skipper to proceed at a safe speed so that proper and effective action can be taken to avoid collisions and to stop the vessel within a distance appropriate to the prevailing circumstances and conditions.

4. Regulation 13 of the Navigable Waters Regulations requires the skipper of a vessel to comply with the Prevention of Collisions at Sea Regulations. Further, reg 19A, read with reg 48, provides that a person shall not drive a motor boat at a speed exceeding 10 knots in the waters of the Swan and Canning Rivers between the hours of sunset and sunrise, provided that the maximum speed is 8 knots in waters having a depth of less than 3 m or within 45 m of a river bank or low water mark, in or through a mooring area, within 45 m of a moored vessel, jetty or wharf or through an arch of a bridge or within 15 m of a vessel underway.

5. I was referred to no authorities and received no submissions from either party as to whether, or why, these statutory provisions are intended to create a tortious duty of care and a cause of action for breach.  A helpful summary of the history of the cause of action and the relevant principles is set out in British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572, [29] ‑ [38] (Hollingworth J). I do not intend to rule on the issue. This will make no difference to the ultimate outcome.

6. I turn now to consider the defences of 'no breach of duty' and 'voluntary assumption of risk'.

7. In Joslyn v Berryman (2003) 214 CLR 552 [29] McHugh J said (obiter), after a thorough review of the authorities, that the defence of 'no breach of duty' or even a plea of 'no duty in an extreme case' is open in the case of 'a passenger who accepts a lift with a driver known to be seriously intoxicated.'  (My emphasis)

8. In the light of these remarks, and what was also said by Pullin JA in Avram v Gusakoski (2006) 31 WAR 400 (at [2] ‑ [17]), and by Ipp J in State Government Insurance Commission v Hitchcock, (Unreported, WASCA, Library No 970089; 11 March 1997) 10, I take the principles to be as follows in a case involving an intoxicated driver or skipper:

   (i)The court must be satisfied that the passenger not only knows, but also accepts, that he or she is to be driven by a driver who is seriously intoxicated (in colloquial terms, drunk).  So, the passenger must make a decision to travel as a passenger with a drunken driver, who to the knowledge of the passenger has an impaired ability to drive.

   (ii)The passenger is entitled to a reasonable period of time to make that decision.  In that regard, the court must consider the alternative options available to the passenger in the circumstances which applied at the time.

9. The defence of 'voluntary assumption of risk' differs from the 'no breach of duty' defence in one important aspect, namely the passenger must have fully appreciated the risk which materialized and voluntarily accepted it.  (See Jeffries v Fisher [1985] WAR 250, 252 ‑ 253 (Burt CJ), Hitchcock (4) (Ipp J) and Avram [21] (Pullin J).

10. I turn now to consider the impact of the CLA on the above principles.

11. It is common ground between the parties that the CLA did not codify or wholly supplant the law of negligence and breach of statutory duty, which was also the opinion of Buss JA in Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [77] – [83]. Having said that, and having regard to my findings and reasons below, I am satisfied that the outcome of this matter would be the same even if the CLA comprised the sole source of the law.

12. Therefore, I intend to proceed on the basis that the CLA does not affect the principles relating to the creation of any duty of care. Otherwise, and relevantly to the pleadings in this matter, pt 1A of the CLA impacts on a duty of care by way of:

    •Principles in relation to the standard and breach of the duty of care (div 2)

    •Principles in relation to causation (div 3)

    •Specific defences relating to recreational activities (div 4)

    •Principles applicable to the standard of care relating to contributory negligence (div 5)

    •Provisions relating to the duty of care in respect of mental harm

    •Restrictions on damages for non‑pecuniary loss (div 2 of Pt 2)

13. I turn now to consider the 'dangerous recreational activity' defence in more detail.

14. CLA s 5H provides as follows:

    5HNo liability for harm from obvious risks of dangerous recreational activities

    (1)A person (the defendant) is not liable for harm caused by the defendant's fault suffered by another person (the plaintiff) while the plaintiff engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity.

    (2)This section applies whether or not the plaintiff was aware of the risk.

    (3)This section does not apply if –

    (a)the plaintiff has requested advice or information about the risk from the defendant; or

    (b)the defendant is required by written law to warn the plaintiff of the risk.

    (4)Subsection (3) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

15. Pursuant to s 5E, a 'recreational activity' includes, relevantly, 'any pursuit or activity engaged in for enjoyment, relaxation or leisure' (par (b)).  The term 'dangerous recreational activity' means 'a recreational activity that involves a significant risk of harm'.

16. Pursuant to s 5E and s 5F, 'an obvious risk' means a risk that 'in the circumstances would have been obvious to a reasonable person in the position of that person'.  Obvious risks include risks that are patent or a matter of common knowledge, and may arise even though there is 'a low probability' of them occurring and even 'if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable'.

17. I was not referred to any authorities in this jurisdiction which deal with the construction of s 5E, s 5F and s 5H. However, there have been a number of decisions of the New South Wales Court of Appeal dealing with the equivalent provisions of the Civil Liability Act of that State.  The most recent of those authorities is Lormine Pty Ltd v Xuereb [2006] NSWCA 200 which, in turn, considered Falvov v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The wordings of some of the New South Wales provisions differ from the CLA. For instance, the equivalent of s 5H in New South Wales refers to liability for harm suffered as a result of 'the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff'. So, it is necessary to exercise caution when seeking guidance from the New South Wales authorities. Having said that, in my respectful opinion what has been said by the New South Wales Court of Appeal with respect to the meaning of the terms 'recreational activity', 'dangerous recreational activity' and 'obvious risk' provides valuable guidance as to the meaning of the same terms in the CLA since the relevant definitions and broad statutory objectives are the same.

18. As to the phrase 'dangerous recreational activity', Mason P said as follows in Lormine [31]:

    The question is to be determined objectively and prospectively.  The standard lies somewhere between a trivial risk and one that is likely to occur.  Significance is to be informed by the elements of both risk and physical harm.  The characterisation must take place in the particular context in which the plaintiff places himself or herself … (citations omitted).

19. The court must have regard to all the objective circumstances which prevailed rather than a 'theoretical or general level of abstraction' (see Fallas [97] (Tobias JA).

The evidence

1. At the commencement of Ms Campbell's case, Mr Cridland tendered some documentary evidence, including the police statements of Luke Woollard and all of the passengers on the Larson except for that of David Kerr (who was not called either).  Some, but not all, of these people also appeared as witnesses.  This created some difficulties which are mentioned later.

The non‑medical evidence

1. Ms Campbell was born on 7 February 1988 and was thus 19 years of age at the relevant time.  She was educated at Lesmurdie Senior High School where she was awarded the Caltex All‑Rounder Award in Year 12.  This award recognised her academic performance and a wide range of extra‑curricular and community activities including dance (cheer‑leading and the rock eisteddfod), drama, netball, basketball, athletics and swimming.

2. In 2007 she was studying for a double degree in commerce and communications at UWA.  She lived with her parents in Wattle Grove and held part‑time jobs at Endeavour Accounting (one day per week during semesters and full‑time during her holidays) and at the South of Perth Yacht Club.  She was originally rostered to work at the Yacht Club on the Friday evening but was given the night off so that she could attend the tavern function.  She was very active in competitive and social sport, including basketball and netball (which she played at a high district level).  She was also active in other undergraduate activities.  She had no relevant experience with boats.

1. Ms Campbell testified that her police statement dated 14 March 2008 (exhibit 1.93) was true and correct but expressed a desire to make some corrections.  To that end she was shown and verified another statement that she had made on 5 February 2012 (exhibit 2).  On its face exhibit 2 was very comprehensive.  Mr Cridland informed me (ts 28) that it superseded the police statement, which left me confused as why the police statement was tendered.

2. Ms Campbell testified that she and Louise Cook were driven to the Matilda Bay foreshore area by Ms Cook's sister on the Friday afternoon, arriving at 6.30 pm or thereabouts.  They did not drive because they knew that they would be drinking and they planned to leave the tavern function at the end of the evening with others.  Her options included going back to Michael Roberts' house because they had plans to travel to Wattle Grove on the Saturday so that she could introduce him to her parents (ts 60).  At that time they had been exclusively dating each-other for about two months (although Ms Campbell did not officially regard him to be her boyfriend).

3. Ms Campbell and Ms Cook took a bottle of 'Yellowglen' and two plastic glasses to Matilda Bay where they were met by Michael Roberts and Murry Pattison.  The four of them went to the foreshore where they boarded the Larson.

4. Ms Campbell testified that this was the first (or possibly the second) occasion that she had met Murry Pattison.  She said that she had previously met Luke Woollard on two occasions, the latter of which was at the Cottesloe Beach Hotel the previous Tuesday night, and she did not know Sam Abbott.  She said that she 'didn't know these boys' (ts 72).

5. Ms Campbell and Ms Cook drank their wine whilst seated in the bow area and, for the most part, chatted amongst themselves.  She saw the boys drinking wine directly from a 'goon-bag' but did not see any other alcohol.  The Larson motored around Matilda Bay for about 20 to 30 minutes (ie, the first trip).  Everyone was in high spirits about finishing exams, but nobody appeared to be intoxicated.  At one point they all waved at someone on another boat.  She overheard some discussion between the boys about driving the Larson home after the tavern function (ts 78).

6. At approximately 7.00 pm the Larson returned to the foreshore area in front of the tavern, where it was beached.  She and Ms Cook disembarked and immediately walked over to the tavern where they joined a line of people waiting to purchase tickets for the tavern function.  They shared the unfinished bottle of 'Yellowglen' with their companions in the line.  She testified that the boys who had been on the Larson did not come over to the tavern at that time.

7. Once inside the tavern Ms Campbell drank full strength beer, socialised and danced with her friends.  She testified that she consumed about six middies of beer until 10.00 pm, when she began drinking water.  She did not see any of the boys from the Larson until she spoke to Murry Pattison and then Michael Roberts.  This was at about 10.00 pm or later.  She testified that they appeared to be a little intoxicated, but she believed that they were aware of their surroundings.  They were not stumbling or slurring their words when they spoke (exhibit 2, pars 75 ‑76).  She had an argument with Michael Roberts.  She was upset with him because she had gone on the first trip and made an effort to get to know his friends, but he had failed to reciprocate in the tavern (ts 31, 75).  She testified that she was slightly intoxicated at this time.

8. Louise Cook left the tavern with her boyfriend at approximately 11.00 pm.  Ms Campbell declined their offer of a lift to the boyfriend's house.

9. Ms Campbell testified that the tavern function finished at approximately 11.30 pm.  Some of her friends invited her to accompany them in a shuttle bus which was going to the Claremont nightclub area.  However, she declined as she was still in 'a bad mood from arguing' with Mr Roberts (exhibit 2, par 95) and still planned to go to his house.

10. Ms Campbell stood outside the tavern for a period talking to people including Murry Pattison, who expressed his disapproval of Mr Roberts' treatment of her and offered her $50 for the cost of a taxi home by herself.  She declined because she was worried about the propriety of accepting his money and because she was concerned at having to take a taxi alone at night.  So, she decided to stick to her plan of returning to Mr Roberts' house with him and made her way to the Matilda Bay foreshore.  Murry Pattison went with her.

11. At the foreshore Ms Campbell found a number of people near the Larson, some of whom she did not know.  No‑one was drinking.  She noticed that the Larson was tied to a tree on the foreshore.  At this point she believed that Murry Pattison would be the skipper (ts 33, 116).

12. Everyone boarded the Larson.  Murry Pattison placed her in the front passenger seat adjacent to the skipper's seat.  The vessel was facing the foreshore and she watched Luke Woollard untying the mooring rope.  She noticed that this took some time and felt that he was having trouble with it (ts 34, 73, 101).  This puzzled her at the time because she had assumed (wrongly as it happens) that he had tied the knot in the first instance.  (She had acquired a knowledge of ropes and knots whilst participating in abseiling activities at secondary school.)  This was the first occasion that she had seen Luke Woollard since she disembarked from the Larson earlier in the evening.

13. Ms Campbell testified that once Luke Woollard was on board he 'shoved' Murry Pattison away from the skipper's seat and took over the controls, saying:  'It's my father's boat.  I'm driving'.  She thought this 'was rude, considering Murry's meant to be one of his friends' (ts 33 – 34).

14. Ms Campbell testified that she had some concerns at this point about travelling in the Larson (ts 34):

    I was worried because it was night time, and I hadn't been on a boat since I was a kid, but Michael [Roberts] had told me that they did it all the time - got the boat home from parties and I trusted him.

15. She also testified that she trusted the judgment of Luke, Michael and Murry based on her understanding of their experience driving boats, including the Larson, and her belief that Luke and Murry had had their Recreational Skippers' Tickets (exhibit 2, par 119; (ts 34, 79)). 

16. Ms Campbell testified that Luke Woollard 'was not stumbling or slurring but his actions were a little delayed' (exhibit 2, par 123).  She did not believe that he was so intoxicated as to be unable to drive the Larson, and she would not have remained on it if she had known that he was too intoxicated to do so (ts 59).  She testified that she assumed that 'whoever was driving the boat would have' stopped drinking since that is what she would have done herself (ts 74).

17. Ms Campbell's evidence about the second trip (in exhibit 2) was as follows:

    125.Luke started the Boat up and took off relatively slowly.

    126.Once the Boat was out of the area where other boats were moored, Luke accelerated.

    127.I do not know how fast he was going because I do not have any experience on boats, but it was quite windy.

    128.During the boat ride nobody really spoke because of the noise of the wind.

    129.As the boat was approaching my work, the South of Perth Yacht Club, I told Luke to slow down.

    130.I either said 'Can you slow down?' or 'Slow down'.

    131.I shouted at Luke but the wind was very loud and may have drowned me out.

    132.Luke was also swerving a little so I was a bit scared at the time.

    133.This was because I was afraid of the speed he was travelling at and I was supposed to be at work that night and did not want to draw attention to myself by speeding past.

    134.I do not recall whether Luke slowed down or whether he reacted to my request to slow down.

    135.I cannot remember anything after this point.

18. Ms Campbell gave a detailed and at times searing account of recovering consciousness in hospital and her gradual recovery thereafter.  Her first waking memory is of seeing her parents, but she was unable to speak or move and was terrified that she had been sexually assaulted.  She was wearing a neck brace, had numerous tubes in her body (including a tracheotomy tube to breathe, a naso‑gastric tube for sustenance and a tube draining her lungs).

19. Ms Campbell's initial periods of consciousness were punctuated by 'constant pain everywhere' in her body and difficulty determining the difference between reality and dreaming.  She recalled having 'horrific experiences' (ie, nightmares) when she was in a coma or sedated.  She did not trust the hospital nurses or any treatment and was unable to sleep.  Her mouth was wired shut and she could only communicate using a 'doodle board'.

20. Initially she was unaware of how seriously she had been injured and how closely she had avoided death.  She became very emotional and fretful as these things dawned on her, and as she became aware of the extent of the rehabilitation which awaited her and of the possibility that she might never recover basic functions such as the ability to swallow or speak.

21. Ms Campbell described numerous very unpleasant and painful procedures and side‑effects of her care and treatment.  Her naso‑gastric tube was replaced by a percutaneous enteral gastrostomy (a 'PEG' for short) on 5 December 2007.  This was inserted via a laparoscopic incision in her abdomen.

22. Gradually Ms Campbell began to mobilise, at first in a wheelchair and later by foot, whereupon her fractured ankle was diagnosed.

23. Ms Campbell graphically described the painful little stages of her rehabilitation.  For instance, she had to prise her jaws open once they were unwired by gradually stacking (ie, laminating) popsticks between her molar teeth.  This was difficult because she had lost or damaged the bone and all of the teeth in the front of both jaws.  The removal of the tracheotomy tube restored her ability to smell but that created problems because she could then smell food which she could not consume.  She also had to cope with constantly spitting her saliva into a special bag which she took everywhere because she could not swallow.

24. The PEG tube was removed in February 2008.  At this stage Ms Campbell still had many problems, mostly emanating from her throat injuries.  In particular, speech and swallowing were very difficult and had to be re‑learned.  To this day she must co‑ordinate the functions of her throat, such as speaking, eating, drinking, swallowing and breathing.  Her voice was almost inaudible when she was finally discharged from hospital, but through therapy it gradually recovered to a reasonably audible volume.  However, it is of a different pitch, range and maximum volume to her former voice.

25. Ms Campbell was fitted with clip-on dentures as soon as she was able to wear them.  This was not an ideal solution and caused regular embarrassment which impacted on her social life.  She resolved to undergo a permanent solution, namely the fixation of dental bridges.  This was by no means straightforward for her, but it was ultimately successful.  Overall, the dental work required numerous operations and procedures which involved the removal of more teeth (which were damaged in the collision) and four molar teeth (to facilitate the removal of adjacent bone for grafting), a bone‑grafting procedure, the insertion of titanium pins into the grafted jaw‑bone (once it had healed) and, finally, the fitting and attachment of prosthetic bridges.  (Steel plates that had been inserted in Ms Campbell's lower jaw on 17 November 2007 were removed during one of these procedures.)  Ms Campbell suffered terrible pain and discomfort as she recovered from the reconstructive dental surgeries.

26. Ms Campbell returned to university for the commencement of the first semester in 2008, but required numerous special considerations in order to do so.  For instance, she was unable to participate in public speaking, so she wrote essays instead of taking part in debating assignments.  She returned to her part‑time employment with Endeavour Accounting, but unsuccessfully attempted to return to employment in the hospitality industry.  She was unable to resume many of the sporting and leisure activities which she enjoyed before being injured, particularly extra‑curricular activities at UWA and district netball which were precluded by her ankle, speech and respiratory problems.  She now participates in social, modified‑rules netball and long‑distance running, but within certain limitations.  She has set herself a goal of running a marathon one day.

27. Ms Campbell graduated from UWA on schedule and obtained employment as an accountant with McGrath Nichol Services Pty Ltd in Perth.  She testified that her injuries have not impacted on her professional earning capacity.  However, she feels that some vocational avenues which had previously attracted her, such as financial advisory work, are precluded because they involve long periods of concentration, constant speaking and the like.  As such, she sees her future in transaction‑related work, such as tax accounting, which is her present occupation.  She makes no complaint about her current occupational circumstances, but is mindful of the diminution of professional opportunities that may await her in the future.

28. Ms Campbell testified as to her psychological symptoms since being injured.  She referred to problems such as lack of concentration, anxiety and suicidal thoughts (ts 56 – 59, 113).

29. Louise Cook testified that she was 19 years of age and a second year student at UWA at the relevant time.  She has been a very close friend of Ms Campbell at all material times.  She gave a similar account of the events of the Friday to that of Ms Campbell, although their timeframes differed slightly.  She recalled seeing a number of boys on the Larson, including Luke Woollard, sharing a 'goon-bag'.  She said that the mood on the boat was 'happy' consistently with the celebratory context, but no‑one was noticeably intoxicated.  She recalled that Matthew Dawson skippered the boat around the bay during the first voyage.

30. Ms Cook's account of the tavern function was similar to that of Ms Campbell, although she recalled the beer glasses being smaller than middies.

31. Ms Cook also corroborated much of Ms Campbell's evidence about her recovery and rehabilitation in hospital and afterwards.

32. Michael Roberts testified that he was 19 years of age and employed as a data‑base operator at the relevant time.  He confirmed the truth of his police statement which he made on 19 November 2007.

33. He testified that he resided with his parents quite close to the Canning River in the suburb of Salter Point.  He joined the boys on the Larson after work on the Friday between 5.30 – 6.00 pm.  They picked him up at the Mount Pleasant foreshore of the Canning River.  He took one or two casks of wine onboard.  The party then headed to Deep Water Point and dropped off their friend Daniel Thrift, who was on the boat at the time.  Having done so, they took the Larson to Matilda Bay for the purpose of attending the tavern function.

34. They arrived at Matilda Bay at approximately 6.00 pm.  About 10 minutes later he and Murry Pattison met Ms Campbell and Ms Cook on the UWA campus and took them back to the Larson which they boarded and left on the first trip.  He had no recollection of the girls bringing 'champagne' on board (ts 168).

35. Mr Roberts testified that Matt Dawson skippered the vessel.  He was surprised to learn that he had said in his police statement (par 15) that Luke Woollard drove the boat but acknowledged that he could be mistaken about it being Matt Dawson (ts 168).  Once everyone had disembarked after the first trip they met some other people on the foreshore and remained there 'goon‑skolling', that is to say, drinking large gulps of wine directly from the spout of the 'goon-bag'.  He testified that Kate Campbell and Louise Cook were with them at this point.  At about 7.00 pm someone said that the tavern had opened and everyone made their way over there.  He said that at 'the beach everyone was in high spirits knowing that we had the whole summer ahead, no study' (ts 158 ‑ 159).

36. Mr Roberts testified that initially he spent most of his time at the tavern function in an outside area with 'the group of boys that were on the boat, so Sam, Dan [Thrift, I assume], Murry Dawson and myself' (ts 159).  He testified that Mr Woollard 'knew the person running the event and worked the door for an hour or two, taking people's money and taking people's tickets' (ts 159).  Later his group moved indoors to the dance floor and at some point Luke Woollard joined them.  He did not recall seeing any interaction between Luke Woollard and Kate Campbell during the function.

37. Mr Roberts' evidence as to his argument with Ms Campbell was somewhat vague.  He said that he was 'very intoxicated by that stage of the night'.  He remembered 'thinking that I was out of my depth because I was more intoxicated than she was.  She was more articulate than I' (ts 160).

38. In his police statement Mr Roberts stated that by closing time he was 'very pissed or intoxicated as were all the others [but] … I could still walk and talk' (par 22).  He stated that he also remembered Murry Pattison, Luke Woollard, Kate Kerr and David Kerr '… being pretty drunk …' (par 23).  However, in his oral evidence he testified that he could not remember Mr Woollard's level of intoxication or that of anyone else, and he could not recall Mr Woollard or the others doing anything which physically indicated their level of intoxication (ts 170).  Eventually he accepted that he knew that Luke Woollard was affected by alcohol to the point of being physically and mentally impaired (ts 178).

39. Mr Roberts testified that a plan was formulated at some stage for everyone to go home to his house.  He testified (ts 160):

    Well, it was always going to be us boys, but in the end Sam and Matt had both left earlier than the end of the night due to intoxication and then because we had spaces on the boat, it became a bit of an adventure so we rounded up people to see who wanted to join us.

40. He said that it was originally planned that Murry Pattison would drive but he recalled that at some point 'Luke wanted to drive the boat with it being his boat' (ts 160 ‑ 161).

41. Mr Roberts took his seat for the second trip in the right hand bow of the Larson opposite David Kerr.  He said that they 'monologued' in raised voices during the voyage.  He gave very little evidence about the trip prior to the collision. He estimated that Mr Woollard drove the Larson in excess of 10 knots and recalled hearing a male voice (possibly Murry Pattison he thought) telling him to slow down as they approached the South of Perth Yacht Club, which is north‑west of the Canning Bridge (ts 161).  Mr Woollard complied, but accelerated once they were through the bridge.  The next thing Mr Roberts can recall is hearing a loud bang and being thrown into the river.  He surfaced at least 10 m from the Larson and saw David Kerr in the water as well.  He did not remember the vessel swerving prior to the collision or at any other stage of the trip.

42. Mr Roberts testified that he and David Kerr reboarded the Larson via the stern ladder.  He saw Murry Pattison tending to Kate Campbell on the floor between the front passenger seat and the windscreen.  Luke Woollard was half‑sitting in the driver's seat.  Mr Roberts made a telephone call to the emergency services at 1.02 am.  Murry Pattison managed to restart the boat shortly afterwards and drove it to the foreshore area adjacent to the Penrhos boat shed (near the western end of the Canning Bridge) where the emergency services began to gather.

43. Mr Roberts testified that he was unsure whether he and the other boys had travelled at night in the Larson prior to the Friday/Saturday night and said that he did not know (ts165).

44. In cross‑examination Mr Roberts was questioned about the inconsistency between his police statement and his oral evidence regarding Luke Woollard's level of intoxication at the time of the second trip.  As I understand his evidence, he agreed that Mr Woollard was physically and mentally affected by alcohol (ts 178) but based that opinion on his 'knowledge that we'd been drinking for … a number of hours'.  He could not remember seeing any visible signs of intoxication (ts 170 and 182).

1. Katherine Kerr testified that she was 19 years of age at the relevant time and studying at Curtin University.  She confirmed the truth of her police statement given on 26 November 2007, save for a number of changes which emerged in her oral evidence.  She and her friends arrived at the tavern function at approximately 7.30 pm and remained there until closing time, heavily drinking wine outside from time to time.  During the evening she and her brother David were offered a lift home in the Larson.  She declined a lift in a motor vehicle after the tavern closed because it was to be driven by a youth who had been drinking.  She gave up on taking a taxi because she found, after some wait, that there were none to be had.

2. Ms Kerr 'quite clearly' remembered that Luke Woollard and Michael Roberts looked 'drunk' and were 'quite drunk' (ts 253).  She also believed that Murry Pattison was intoxicated (ts 259).  However, her evidence about this was different to her police statement in which she said that Mr Woollard 'didn't seem too drunk' (par 9) and that 'both Murry and Luke appeared to be okay to drive' the boat (par 17).  Mr Cridland attempted to explore this inconsistency with Ms Kerr, but he was limited by the rules of evidence relating to the impeachment of his own witness (since he had called her).

3. Ms Kerr also departed from her police statement insofar as she testified that she would assess her level of intoxication to have been 8 on a scale of 0 to 10, whereas in her police statement she said that it was 6 out of 10.  She said that she had had time to think and had remembered things since giving the police statement.  She said that 'when it first happened, it was – a lot of it was quite blank …' and she wondered whether this was 'just a reaction from the crash' (ts 253).

4. Ms Kerr testified (ts 254):

   … so I decided that a safer option would be to go on a boat.  And I told my friend Jess, I said, I tried to convince her to come with me and I said, 'What's the worst thing that can happen?  We will just fall in the water,' which is in hindsight a bit stupid.

5. Later she said:

   I just - I think because we had been talking about going home with a drink driver on the road, which I didn't want to do, so I was just trying to pick the safest option and I thought that you could basically just hit another boat or the boat could sink.  They were my only two options, really (ts 258).

6. Ms Kerr testified that at this point she was unsure which of Luke Woollard or Murry Pattison would be the skipper, but she agreed that she had some concerns about their capacity to do so and would not have accepted a ride in a motor vehicle driven by either of them (ts 259).  She did not actually learn that Mr Woollard would be driving the vessel until he began to do so.

7. Ms Kerr testified that she sat in the middle of the rear seat of the Larson with Matthew Suter and Greg Wishart, near a wake board.  She testified 'that after we left the beach at UWA we seemed to be going fast', and she 'could feel the wind rushing past' her face (statement par 21).  She remembered going under the Canning Bridge but did not 'notice the boat change speed' beforehand (statement par 22).  She remembered 'Luke doing a bit of fishtailing at some stage, sort of towards the end of the boat ride' and she remembered 'yelling at Luke to slow down, but it was seconds before the crash' and there was insufficient time for him to react (ts 253).  These last‑mentioned matters were not mentioned in her police statement.

8. Ms Kerr denied hearing Kate Campbell request or shout at Luke Woollard to slow down.

9. Ms Kerr testified that the force of the collision catapulted her from her seat into the front section of the boat and she lost consciousness.  When she came to she noticed 'glass all over the boat', but her memories from then on are sketchy.  She suffered a fractured C6 vertebra and now has disc bulges in her neck and lower back and numbness in one of her legs (ts 255).

10. The police statements of Matthew Dawson, Gregory Wishart, Murry Pattison and Matthew Suter were tendered by Mr Cridland as part of the agreed bundle and they were not required for cross‑examination.  All of these statements were made within three days of the collision.

11. Matthew Dawson stated that he was 19 years of age.  He drank beer on the Larson with Murry Pattison, Daniel Thrift and Luke Woollard from about 3.00 or 4.00 pm on the Friday.  At one stage they dropped Daniel Thrift off at Deepwater Point. They picked up Michael Roberts 30 to 60 minutes later.  He brought two casks of wine with him.  They then took the Larson to Matilda Bay and parked on a mooring where they were drinking.  He said that he skippered the boat during the afternoon.  At one stage they picked up Ms Campbell and Ms Cook (who had a bottle of champagne) and returned to the mooring where they stayed drinking until they beached the Larson between 6.30 and 7.30pm.  They moored the Larson to a tree with a ski‑rope and then met some other people on the foreshore, where they remained for about 15 minutes before going over to the tavern.  Overall he had about five or six stubbies of beer and possibly a glass of wine on the Larson.  He said that he was 'feeling a bit tipsy' when he disembarked at Matilda Bay and that the 'others seemed as though they were probably a bit worse' (par 25).  He stopped drinking because he had not finished his examinations, but remained at the tavern function until he was picked up by Daniel Thrift at about 9.30 pm.

12. Gregory Wishart stated that he was 19 years of age.  He and some friends (including Matthew Suter for some of the time) had a few beers on the South Perth foreshore during the Friday afternoon and early evening.  Later he and Mr Suter (who drove) went to the tavern function, arriving just after 10.00 pm (he was not wearing a watch).  Once inside he, Murry Pattison, Matthew Suter and Michael Roberts 'hung out and drank jugs of beer together' (par 18).  They shared about two jugs and then he and Matthew Suter shared another between them (par 20).  He occasionally saw Luke Woollard ('another old friend from school') and 'had a brief chat with him' (pars 21 – 22).  The tavern closed at about midnight.  Whilst he was standing around he accepted the offer of a lift to Salter Point on the Larson.

13. At about 12.30 am he, Luke, Murry, Michael, Matthew and two girls called Kate (who he had never met before) and a 'guy [he thought] … was one of the brothers' of one of the girls (pars 27 – 29) all boarded the Larson 'and messed around a bit'.  He said that he 'had consumed a few drinks but … was not drunk' (par 30).  In his opinion Michael Roberts and Murry Pattison 'seemed as though they had drunk the most and seemed a little intoxicated' (par 31).

14. Mr Wishart stated that:

    32.The boat was pretty full with 8 of us on board and also as there was [sic] wakeboards and other gear on the boat.

    33.The boat was pretty much on the beach with a rope tied around the base of a tree.

    34.After we threw the rope we headed off with Luke driving the boat.

    35.Luke did not look or sound drunk at this time.  I would say he had been drinking as he was a bit louder than normal but he was able to move the boat around as we left the shore and headed out.

    36.I was seated at the rear back of the boat behind the passenger's seat.

    37.It was a bit cramped as there was a wake board on the back seat in the corner of the boat so I was squashed against the wake board and the seats.

    38.I was behind the passenger's seat holding onto the side rails and the back of the passenger's seat.

    39.I am not sure of the navigational marks and the best route to get over to Salter Point, but it felt we travelled in a direct path towards the Canning Bridge which I was aware we had to go under to get to Slater [sic] Point.

    40.We did not go anywhere else on the way over towards Salter Point.

    41.The boat was moving pretty fast as we travelled over.

    42.I believe we weren't going flat out, it felt as though we were doing about 15 – 20 knots.

    43.I am not sure of the speed as I am not really a boatie and not sure of boat speeds.

    44.I have been on Luke's boat a few times before over at Rottnest and I do not think on this night we were going as fast as the boat can go.

    45.As we travelled over I remember slowing down to go under the Canning Bridge.

    46.As we travelled over I cannot remember what exactly we were all doing.  I think we were just chatting.

    47.We had a few lights on the boat but I am not sure what lights we had on in regards to the navigational lights.

    48.On the way over I am certain no‑one on the boat was drinking any alcohol.

    49.After slowing down and going under the Canning Bridge I remember hearing and feeling the boat speed up again.

    50.About 30 – 40 seconds later we hit something.

    51.Prior to hitting something in the water we would have been travelling about the same speed as we were travelling before the bridge.

15. Mr Wishart then stated that he was thrown about 10 m into the water.  He re‑boarded the vessel and assisted with the aftermath.  A head count took place and they 'quickly spoke' about swimming for help or beaching the Larson.  At this stage Michael Roberts called '000' and 'Murry decided to start the boat' (pars 58 ‑ 60).  He noticed that the vessel was facing back towards the Canning Bridge.  Once on shore Mr Wishart went to a nearby service station and procured water and first‑aid equipment.

16. Mr Wishart suffered numerous cuts and bruises and a tender back and neck.  He was seen in the Emergency Department of Sir Charles Gairdner Hospital and released at 3.30 am.

17. Murry Pattison was 20 years of age.  His statement commenced with a detailed account about spending the Friday afternoon with his friends.  They were on the Larson from 4.00 pm drinking beer and wine.  Everyone was drinking except Daniel Thrift, who was dropped off before they left for Matilda Bay, where they arrived at approximately 6.00 ‑ 6.30 pm (pars 1 ‑ 28).  He and Michael Roberts 'bumped into Kate Campbell and her friend Lou' near the UWA tavern and invited them back to the Larson.  Once on the boat 'Matt [Dawson] did one lap around Matilda Bay before picking up a mooring' and they continued drinking.  The boys drank cask wine while the girls drank 'champagne'.  At approximately 7.00 pm they all went over to the UWA tavern where they 'stayed … until about 12.30 am'.  He, Michael Roberts, Luke Woollard, Kate Campbell, Katherine Kerr, David Kerr, Matthew Suter and Greg Wishart all returned to the Larson.

18. Mr Pattison's statement continued as follows:

    41.I got into the driver's seat and asked the others to push me off from the shore so I could start the engine.  Luke said 'I'm driving'.

    42.I got out of the seat.  Luke sat in the driver's seat, started the boat and reversed away from the shore.

    43.I was pretty drunk at this stage but I remember Luke driving out of the mooring area and dodging moorings and boats.

    44.I remember the boat being on the plane but I can't remember how fast we were going.

    45.I was crouched down between the driver and the passenger seats.  I closed the hatch in the windscreen because I was cold.

    46.I had my head down and wasn't looking where we were going.  I felt and heard the boat slow down so I looked up to see what was happening.  I saw that we were going underneath the Canning Bridge.  I remember looking up and seeing a fishing line hanging down from the bridge.

    47.The next thing I heard a banging sound and I got thrown forward in the boat.  I must have been unconscious and I woke up near the bow section.

19. Mr Pattison described the aftermath of the collision, including his role in re‑starting the Larson 'once everybody was accounted for' (par 53) and driving it to the foreshore near the Penrhos boat shed.  In doing so he noticed that the vessel had come to rest facing towards the City, ie, in the direction from which they had just come.

20. Matthew Suter stated that he was 19 years of age and a UWA student.  He met some friends (including Greg Wishart) at about 8.00 pm at the South Perth foreshore where he had one stubbie of beer.  He thought that Mr Wishart 'might have had a couple more' (pars 2 – 7).  He and Gregory Wishart decided to go to the tavern function, where they arrived at about 9.20 pm. There was a line outside.  They got inside about 10 or 15 minutes later.  He said that he, Murry Pattison, Gregory Wishart and Michael Roberts drank beer from jugs and were occasionally joined by Luke Woollard.  Mr Suter said that he was drinking 'quite fairly solidly' throughout the night and was 'drunk but not paralytic' (par 13).  In his view Michael, Murry and Luke 'appeared to be more drunk' than him (pars 14 – 15).  He said that the tavern closed at about midnight.

21. Mr Suter then referred to the circumstances leading to the second voyage.  He estimated that everyone was onboard the Larson 'about 12.40 am or so' (par 21).  He described the seating arrangements consistently with the other witnesses and then said:

    29.When we took off from Matilda Bay foreshore, Luke took the boat up to a speed of about 20 knots.

    30.We continued at this speed whilst we headed for Salter's Point and I remember the boat slowing down as we approached the Canning Bridge.

    31.Luke slowed the boat down to about 10 knots as we went under the Canning Bridge.

    32.I remember seeing two fishermen who were fishing from the Perth side of the top of the bridge.  I actually waved at one as we went under the bridge.

    33.After we have travelled under the bridge, Luke sped the boat up again.  The boat got onto it's plane and was doing just under 20 knots.

    34.He fairly significantly opened the throttle of the boat for a short time.  He then turned the boat slightly to the right and then more to the left.

    35.This action would have only lasted for about 5 seconds.  I was generally looking towards the Mount Pleasant foreshore area when the next thing, bang.

22. Mr Suter then described yelling and screaming and 'Greg, Michael and the brother to the other Kate … in the water' (par 38).  He could see the Raffles Hotel on his left and the Canning Bridge in the foreground.  He stated that Michael Roberts made a '000 call for help', Murry Pattison drove the boat to the shore and he assisted with the injured.  He recalls a helicopter being in the area as they did so.

23. Samuel Abbott stated that he was 19 years of age and a UWA student.  He spent the Friday afternoon from about 4.30 pm on the Larson with Daniel Thrift, Matthew Dawson, Murry Pattison and Luke Woollard.  They were all drinking beer except for Daniel Thrift.  Michael Roberts joined them sometime after 5.00 pm with two goon‑bags.  They then travelled to Matilda Bay, drinking wine from a goon-bag as they did so.  He recalled picking up two girls named Kate and Louise from a jetty near the university.  By that stage he was 'pretty drunk' and was unsure whether they went out in the boat again or just sat tied to a jetty drinking.  After a short time he and others went to the tavern but he was very drunk by this stage and his memory is poor.  He caught a taxi and went home between 9.00 and 9.30 pm.

24. Evidence was also given by Ms Campbell's mother, Mandy Campbell, which generally confirmed her daughter's evidence about her hospitalisation, recovery and rehabilitation.

25. David Mussen, a senior marine surveyor with the Marine Safety and Commercial Vessel Safety branch of the Department of Planning and Infrastructure prepared a report dated 27 November 2007.  He described the damage to the Larson and, amongst other things, noted that when the vessel's battery was re-connected its 'AM/AM [sic AM/FM] radio came on as the accessory switch [was still] in the on position'.  He found no navigation lights but allowed that these might have been removed after the collision.  No problems were found with the operation of the vessel's engine, but the steering wheel was badly distorted.

26. As to the Larson's speed at the point of the impact Mr Mussen said:

    [W]ithout in‑depth calculations regarding masses and the strength of the various components of the vessel's structure it is estimated that the vessel was running at a speed in excess of 20 Knots.  The vessel was most certainly running at a speed in excess of the eight knot speed limit in effect at Canning Bridge.

27. Mr Cridland also tendered the record of Luke Woollard's sentencing in the District Court on 11 December 2008, including the transcript.  This disclosed that his counsel, Mr Hylton Quail, made a number of explicit admissions which can be used as evidence in these proceedings, together with his convictions, in the absence of any rebuttal evidence (see Mickelberg v Director of the Perth Mint [1986] WAR 365). Mr Quail also made a number of submissions based on the evidence in the State brief. Some of those submissions are, at face value, supportive of Ms Campbell's claim. However, I am of the view that these can carry very little weight, if any, as they represented submissions rather than informed admissions and, in many cases, dealt with issues of law or touched upon matters which Mr Woollard said (then and now) he could not recall. I turn now to summarise his evidence.

28. Mr Woollard's version of events and evidence is comprised in the video record of interview which he gave to the police on 20 November 2007 (which was tendered by Mr Cridland – exhibit 17), his statement of evidence dated 6 February 2012 (exhibit 24) and his oral evidence.

29. At the relevant time he was 19 years of age and had more or less dropped out of the second year of his course at Murdoch University.  He testified that in 2007 he and some others were in the habit of binge drinking ie, drinking to get drunk at least once and sometimes twice a week (ts 368).

30. In exhibit 24 he said that between 4.00 and 5.00 pm on the Friday afternoon he, Murry Pattison, Matthew Dawson, Daniel Thrift and Samuel Abbott cruised in the Larson in the Aquinas Bay and Mt Pleasant areas of the Canning River.  Apart from Mr Thrift, they consumed a carton of full strength beer, of which he consumed four stubbies.  At approximately 5.00 pm Michael Roberts joined them, bringing two 4 litre casks of white wine.  They dropped off Daniel Thrift at Deepwater Point at some point before or after collecting Michael Roberts.  All of the remaining boys drank wine from one of the casks.  He poured his wine into an empty stubbie and drank from that.  He recalls drinking one and half stubbies at this stage.

31. The party travelled to Matilda Bay between 6.00 pm and 6.30 pm, but detoured to the South of Perth Yacht Club where they unsuccessfully sought out more alcohol.  They arrived at Matilda Bay at approximately 6.30 pm when Michael Roberts and Murry Pattison disembarked to meet Kate Campbell and Louise Cook.  He stated (par 18) that he had 'previously met Kate Campbell through my association with Michael Roberts'.  He said that they had 'attended at least two drinking sessions together' in which Kate Campbell used his nickname, namely 'Goonboy'.

32. Mr Woollard stated (par 19) that Michael Roberts, Kate Campbell and Louise Cook embarked on the Larson (he omitted to mention Murry Pattison) from a jetty and they all proceeded on the first trip.  At about 7.00 pm they returned to the Matilda Bay foreshore where the boat was beached and moored to a nearby tree (par 20).  Everyone was drinking during the first trip.  The girls drank a bottle of 'champagne they had brought with them' while the rest drank from a goon-bag (par 19).  He testified that the empty beer bottles had earlier been placed in storage pockets inside the Larson, that is, they were out of sight.  The boat was skippered at all times by Matthew Dawson.

33. Mr Woollard said nothing in his statement about any socialising or drinking on the foreshore of Matilda Bay after they got off the Larson (although he mentioned it in the video record of interview – exhibit 17, pages 24 – 25). Nevertheless, he testified in his oral evidence that this did occur and that Ms Campbell was present whilst he and some others were 'goon‑skolling' (ts 321).  He said that he was 'reasonably drunk' at this stage and assessed his level of intoxication at 6 out of 10.  He stated that he was 'both physically and mentally impaired' but condescended to no particulars (par 20).

1. Mr Woollard testified that, having arrived at the tavern function, he 'was hanging around with Michael Roberts, Murry Pattison, Matthew Dawson, Sam Abbott, Kate Campbell and Louise Cook'.  He said that he 'generally walked around and was drinking beer and mingling with people' that he knew (par 21).

2. Later in the night he 'spent time with the people who had organised the event' including some time sitting 'at the front entrance of the tavern' collecting money from people attending the function.  He recalled 'drinking jugs of beer with Michael Roberts, Murry Pattison, Matthew Dawson and Sam Abbott' and he was 'drinking Vodka and Red Bull mix when I was seated at the front of the Tavern collecting the entrance fee' (pars 22 ‑ 23).

3. Mr Woollard stated that he could not recall 'having much contact with Kate Campbell' whilst he was at the tavern.  He said that by closing time he was 'very drunk' and assessed his level of intoxication at 10 out of 10.  He said he was 'both physically and mentally impaired', again without providing any particulars other than to say that was as drunk as it was possible to be without passing out and that (ts 322) he 'would have been slurring his words…[and] sort of walking funny' (which no other witness recalled observing).  He testified that his last recollection of the tavern function is of drinking vodka and Red Bull and he cannot recall making his way from the tavern to the Larson (par 27).  He stated that he has no memory from that point forward until after the collision, save for 'a vague recollection of trying to untie the boat from the tree and finding it difficult' and having 'a vague recollection of seeing glimpses of water' (pars 28 ‑ 30).  He told the police that he could remember hearing someone yell out after the collision (exhibit 17, page 4) but otherwise had very little recollection of what occurred.

4. He confirmed that there is no reason to attribute his lack of memory to any form of trauma and that he had, in effect, alcoholic amnesia.

5. I questioned Mr Woollard about the workings of the scale that he had used to assess his drunkenness.  It transpired that this was, in effect, a wholly subjective scale which is based upon his degree of memory loss and not any objectively ascertainable criteria.  So, in this case he rated his degree of intoxication early on the Saturday morning at 10 out of 10 because he had little or no recollection of what he had been doing.

The psychological and psychiatric evidence

1. Dr Rebecca Adams is a consultant psychiatrist who saw Ms Campbell for therapeutic purposes on 10 occasions between 26 August 2009 and 27 July 2011.  Reports and other correspondence from her dated 30 September 2009, 11 April 2011 and 19 June 2011 were tendered in evidence, together with her clinical notes.

2. Dr Adams' first report contained a comprehensive history and record of Ms Campbell's current symptoms.  She diagnosed 'moderately severe Major Depression' caused by 'the cumulative traumas of the boating accident and the subsequent multiple medical and surgical procedures she has had to undergo as a result'.  Dr Adams took into account that Ms Campbell 'has been struggling with the very real prospect of permanent loss of function (swallowing and speaking), and disfigurement and scarring'.  She noted that Ms Campbell's worst fears in relation to loss of function had been avoided but that she still faced 'further surgeries and the ordeal of a probable court case'.  She prescribed medication and weekly psychotherapy.

3. Ms Campbell presented to Dr Adams on 11 April 2011 with symptoms of depression and was referred to a clinical psychologist (Lisa Richardson) for therapy.  Dr Adams also prescribed medication.  In her report dated 19 June 2011 she stated that Ms Campbell re-presented on 10 June 'in a fragile mental state, clearly experiencing a recurrence of her major Depressive Disorder'.  She found Ms Campbell's symptoms to be 'quite concerning' and persuaded her to agree to resume her medication (which Ms Campbell had been reluctant to take because of her aversion to a pharmaceutical solution to her illness).

4. Ms Melanie Honnor is a clinical psychologist who saw Ms Campbell for medico‑legal purposes on the instructions of her solicitors on 7 May 2009.  She wrote a report on 19 May 2009 which included a comprehensive social, medical and occupational history, an account of the collision, a history of Ms Campbell's emotional and physical recovery and then an evaluation based on her subjective and empirical findings derived from tests which she administered. 

5. The Revised Impact of Events Scale is a self‑reported inventory of symptoms of post‑traumatic stress experienced by the subject in the seven days prior to doing the test.  In Ms Honnor's opinion Ms Campbell's score was of clinical concern and the Avoidance subscale was particularly elevated.

6. The Beck Depression Inventory is a questionnaire of symptoms of depression experienced in the two‑week period prior to undergoing the test.  In Ms Honnor's opinion Ms Campbell's score indicated that she experienced significant symptoms of depression.

7. Ms Honnor diagnosed Ms Campbell with post‑traumatic stress disorder ('PTSD') 'as a result of the life threatening nature of the accident, the horrifying nature of her injuries and subsequent hospital experiences, her distress at exposure to reminders [and] her avoidance of these …'.  She recommended medication and counselling comprising, amongst other things, cognitive behavioural therapy which she recommended to help Ms Campbell to 'challenge the unhelpful thoughts and self‑beliefs underlying her depressed moods'.  Ms Honnor indicated that the litigation and ongoing medical treatment made it difficult for Ms Campbell to put this matter behind her and make a 'psychological recovery'.  She said that even with treatment there was a possibility that Ms Campbell's symptoms 'will not resolve completely given the severity of the trauma and the permanent nature of the physical sequelae of the accident'.

8. Dr Adams and Ms Honnor both gave oral evidence and were very respectful of each others' opinions.  Dr Adams accepted that Ms Campbell probably suffered from sub‑clinical symptoms of PTSD from time to time, whilst Ms Honnor accepted that a diagnosis of depression was open in addition to PTSD.  Ms Honnor said that she would defer to Dr Adams' views to the extent that they were more up‑to‑date than hers.

9. Dr Adams believed that Ms Campbell's symptoms of depression fluctuated from time to time and even went into remission, and considered that stressors such as medical treatment, reminders of her trauma, this litigation, university difficulties and the like, together with non‑compliance with prescribed medication, were relevant factors.  She is optimistic about Ms Campbell's prognosis, particularly if, or when, she can put this litigation behind her, but she warned that Ms Campbell is now pre‑disposed to further episodes of depression in the future irrespective of the causal circumstance (eg, post‑natal depression).

Analysis of the evidence and findings of fact

1. I propose to firstly address a number of relatively uncontroversial factual issues of circumstantial relevance to the ultimate issues.  I have condescended to considerably more analysis and detail about these issues than did the parties in their submissions.  I suspect that they did not do so because there was very little contest (if any) on the issue of negligence.  However, I am comfortable with making the necessary findings without the benefit of further submissions and it is necessary to do so because all of the relevant circumstances are relevant to the ultimate issues.

The Larson

1. There was very little evidence adduced as to the technical specifications of the Larson.  However, I make the following findings based on the evidence.

2. I accept Luke Woollard's evidence that the vessel was 5.3 m in length (since he is best qualified to proffer a view).  It was powered by a 125 horsepower inboard engine and, based on the photographs in exhibit 21, it had a fibreglass hull.  Its top speed was between 25 and 30 knots, depending on its load and configuration for skiing or skurfing.  I find that the vessel planed at high speeds (a design feature).

3. The Larson had an open cockpit for about one-third of its length and almost all of its width.  There was comfortable seating in the cockpit for two adults on single seats (for the skipper on the right and a passenger on the left) and for another three adults on a rear bench seat.  The single seats were separated by a narrow walkway which provided access to the bow section of the vessel, which had less formal seating for two people (one on each side, facing inwards).  The walkway also provided access to the rear bench seat.  There was a console with instruments and a steering wheel directly in front of the driver's seat, together with a T‑shaped throttle control to the right.  There was another console on the other side of the walkway and in front of the left passenger seat.  A windscreen traversed the entire width of the vessel above the two consoles and the walkway.  It was equipped with a hinged hatch above the walkway which provided access between the bow and cockpit areas.

4. The ignition and throttle were very straightforward to operate.  The skipper only needed to insert and turn the key in the ignition to start the engine.  The 'T' lever had to be squeezed slightly and pushed forwards or backwards to engage forward or reverse gear and control speed.

5. The Larson was equipped with a two‑way radio and some leisure‑related features, including a built‑in AM/FM radio which was controlled by an accessory switch independently of the ignition key.  There were also connections to attach ski ropes and the like.  Some water ballast had been placed underneath the rear seat to increase the vessel's weight, and hence wake at high speeds, which improved its suitability for skurfing (skiing the wake on a board).  There were no seat‑belts.

6. Based on the evidence of Michael Roberts (ts 176), read with the report of Mr Mussen, I find that the Larson was equipped with navigation lights which were removed after the collision.

7. I further find that the vessel had a shallow draft and could be easily beached on a sandy river bank, and had plenty of freeboard (hull above the waterline).

8. Based on the evidence as a whole (and particularly the statements of Michael Roberts at par 9 and Matthew Dawson at pars 23-24), I find that the Larson had 'perfect' response, the steering 'handled beautifully' and it was 'running fine' at the relevant time.

9. Overall, I find that the Larson was a powerful and very manoeuvrable speedboat or run‑about with straightforward controls which were simple for an experienced skipper to operate.  It was capable of providing a safe and comfortable ride on the Swan and Canning Rivers for seven seated passengers and another standing, but only at a relatively gentle speed in good surface conditions.  In this regard I have taken into account evidence that Luke Woollard and his friends regularly took the vessel across the open sea to Rottnest Island (as recently as the weekend before the tavern function – Michael Roberts: ts 156), but also the opinion of Michael Roberts that the vessel moved about too much when in motion to permit comfortable drinking to take place (ts 158,168).

Seating positions during the second trip

1. I accept Michael Roberts' basically uncontradicted evidence as to the seating positions during the second journey (see exhibit 11).

2. Thus, I find that David Kerr and Michael Roberts sat in the bow on the left and right hand sides respectively.  They were facing inwards and slightly cramped for leg room.  I further find that their presence may have impacted upon Luke Woollard's forward field of vision since the seating in the bow area appears to me (based on the photographs) to be at approximately the same height as the driver's seat.

3. Luke Woollard occupied the driver's seat and Kate Campbell sat in the front passenger seat to his left.  Murry Pattison stood (or crouched) between them, and Gregory Wishart, Kate Kerr and Matthew Suter sat across the rear seat from left to right.  They were cramped because there were some bags and other equipment located in that area.

Distances and navigation in the Matilda Bay, Melville Water and Canning River areas

1. I accept Michael Roberts' uncontradicted evidence that the second trip was planned to terminate on a sandy part of the Canning River foreshore  which is adjacent to a footbridge over the Kwinana Freeway that is slightly west of his family home.

2. I further accept Mr Roberts' evidence that the course actually taken by the Larson on the second trip is generally as depicted on exhibit 12.

3. Based on exhibits 7 and 12, and the evidence as a whole, I find that the section of Matilda Bay which is relevant to this matter is bordered in the east by Melville Water, in the south by two yacht clubs (Royal Perth and Mounts Bay) and to the north by the Perth Dinghy Sailing Club and the UWA Boat Club.  There were numerous pleasure craft moored in the bay on the Friday and Saturday and a number of buoys.  The foreshore where the Larson was beached was not illuminated and it was a dark night.

4. Relevantly, there were three illuminated beacons in Matilda Bay and Melville Water north of the Canning Bridge, namely the Knot, Point Heathcote and Como jetty beacons, which all flashed green.

5. The jetties of the South Perth Yacht Club projected up to 250 m into the Canning River from the foreshore north‑west of the Canning Bridge.  The northern‑most of these jetties projected approximately 100 m towards the north‑east and terminated with a green‑flashing beacon.

6. The width of the Canning River under the Canning Bridge was approximately 90 m.

7. There were 12 permanent buoys on, or close to, the course of the second trip.

8. There were two unlit beacons approximately 100 m apart in the Canning River south of the Canning Bridge.  The Larson collided with the pylon of the port (red) beacon, which was approximately 175 m south of the bridge on the Salter Point side of the river and slightly east of a line through the centre of the bridge.  As such, the skipper of a south‑bound vessel would be obliged to be aware of it and consider adjusting course after passing through the bridge.  The pylon itself protruded approximately 2 or 3 m above the water and was built of white‑painted timber, topped by the beacon which comprised two pieces of red‑painted metal set at right angles to each other.  A sign was located on the southern side of the pylon signifying the limit of a ski area, but there was no similar sign on the northern side (from which the Larson approached on the second trip).  Based on the evidence as a whole, I am satisfied that Luke Woollard was very familiar with these waters, on which he had regularly boated.

9. There were three navigation buoys and two more unlit pylon‑style beacons further to the south of the port beacon in the general path of the second trip.

10. I find that all of the abovementioned beacons and buoys would have been visible on a dark night to the skipper of a vessel such as the Larson, provided that he or she was travelling at a restrained speed and keeping a careful lookout.  I find that the buoys were less visible than the beacons but, because of their buoyancy, they presented a quite different hazard.  Whilst it would not have been advisable to collide with one, I find that the real risk which they posed lay in a skipper leaving it too late to take evasive action to avoid hitting one which, in turn, posed the risk of introducing a sudden and dangerous swerving motion.

11. The legal speed limits which applied to the second trip were as provided in the statutory instruments referred to above (at [25]).  Speed limits are shown for various waters on exhibits 7 and 12.  Exhibit 7 is described as a 'Notice to Mariners' and was issued by the Department for Planning and Infrastructure in October 2008, ie, after the collision.  Exhibit 12 is a photocopy of a detail from what appears to be a version of the same 'Notice to Mariners' that was in force in November 2007.  (It was shown to witnesses by the police investigators.)  In the absence of elucidation from the parties, I intend to proceed on the basis that the speed limits on exhibits 7 and 12 were included for advisory purposes only and that the legal requirements themselves must be ascertained by applying the statutory provisions to the prevailing river conditions.  My findings about those conditions have been derived from the survey data shown on the exhibits and the oral evidence.

12. Having said that, I note that the 'speed restriction areas' (8 knots at all times) shown on exhibits 7 and 12  include the area of the Canning River between the Canning Bridge and a line between Point Heathcote and the outer end of the Como jetty.  Exhibit 7 goes further and shows an 8 knot speed limit for most of Matilda Bay.  I surmise that such waters may fall within the purview of the 8 knot speed limit because of the presence of moorings, mooring areas, jetties and water having a depth of less than 3 m. 

13. Based on the evidence given in the trial  and the survey data in exhibits 7 and 12, I find that the legal speed limits during the second trip were 8 knots in much of Matilda Bay (where there were moorings, jetties and water less than 3 m in depth) and for much of the waters of the Canning River north of the Canning Bridge (where there were jetties and shallow water), and 10 knots elsewhere including the site of the collision (where the depth of the water as shown on exhibits 7 and 12 was not less than 5 m and as much as 10 m). Mr Mussen erred by stating that the speed limit was 8 knots in that area.

14. By reference to exhibits 7 and 12, I find that the distance from the beach on the Matilda Bay foreshore to the foreshore at the Salter Point footbridge is 7.125 km calculated as follows:

    (i)From a point on the Matilda Bay foreshore west of the '45 Crawley' buoy to a point equidistant between the '63 Addison' buoy and the foreshore adjacent to South Street, Como:  2.825 km.

    (ii)Thence in a direct line through the centre of the Canning Bridge to a point in the middle of the Canning River due west of the Salter Point footbridge:  4.075 km.

    (iii)Thence to the shore adjacent to the footbridge:  0.225 km.

15. Using the same methodology, I have calculated that the distance from the Matilda Bay foreshore to the site of the collision was 5.5 km.

Kate Campbell's credibility

1. I have no doubt that Ms Campbell is an honest person.  Her chosen profession requires high standards of probity, her family and friends think very highly of her and Dr Adams and Ms Honnor expressed no concerns as to her honesty, even though there were some inconsistencies in her subjective history which are mentioned below.  She made concessions in her evidence.  For instance, she admitted her own liberal consumption of alcohol on the Friday evening.

2. However, there were many problems with her evidence about the events of the Friday and Saturday and it became apparent during cross‑examination that she actually has very little recollection of the events after she arrived at the Matilda Bay foreshore.  To her credit she acknowledged this.  She said that her memory was:

   very hazy from the time I got put in the passenger seat to the time I woke up in hospital (ts 96; see also ts 95);

   and that:

   To be honest, from the time getting to the foreshore to waking up [in hospital] I remember very, very little (ts 97)

   and that she only had ' a few memories' but could 'certainly not say' about 'time frames and everything' (ts 117).

3. The inconsistencies to which I referred included the following.

4. In her evidence Ms Campbell stated that there was 'no indication that the boys on the boat, including Luke, were intoxicated' during the first trip.  She said everybody 'was in high spirits due to the end of exams, but nobody was noticeably drunk' (exhibit 2, pars 53 and 54).  On the other hand, in her police statement she said that from what she could remember 'the boys on the boat appeared to have been drinking alcohol as they appeared happy and slightly under the influence', and Sam Abbott 'appeared very drunk …'

1. There are many problems with Ms Campbell's evidence on this issue.  I ruled during the trial that the opinion in her police statement that Luke Woollard appeared to be drunk was admissible because it was a statement against interest.  (At that time she knew that the police had plenty of evidence with which to incriminate Luke Woollard and, in my opinion, she could not have conceived it to be in her interests to falsely acknowledge that she had accepted a ride from a person who was visibly drunk).  However, in my opinion the weight of this admission is problematic given Ms Campbell's poor recollection of the relevant part of the evening and her belief that her police statement was informed by information that was given to her by the police about Luke Woollard's blood-alcohol concentration.  I intend to proceed on the basis that she would accept that she believed at the time of the second trip that Mr Woollard could have been intoxicated, but in my opinion she cannot offer a reliable opinion about it now.

2. Drawing all of these circumstances together, I find that Luke Woollard was intoxicated when the collision occurred and that, because of the enjoyable mood of the occasion, his condition contributed to the collision by impairing his judgment and disinhibiting his behaviour to the point where he began to speed and skylark. In other words, he forgot himself. As such, and with the benefit of hindsight, I find that he was too intoxicated to safely skipper the Larson.

3. However, I find that Mr Woollard was not seriously intoxicated in the sense of being drunk.  I primarily base that finding on the observations of Greg Wishart who was probably the most sober of all of the witnesses, the fact that Mr Woollard exercised full control of the Larson and for the most part uneventfully navigated it until he began to skylark approximately 5.5 km into the trip, and the lack of any evidence of prior unruly or antisocial behaviour of any kind, apart from being a little loud and brusque on the occasion when he took control of the vessel for the second trip.  Actually, his insistence upon skippering could be construed as evidence of the presence of a modicum of self-responsibility.  Further, there was no evidence of some of the typical symptoms of extreme and acute intoxication such as vomiting, physical collapse, unconsciousness or the like.

Kate Campbell's level of intoxication

1. Kate Campbell admitted that she was 'a little intoxicated' late on the Friday evening.  Having regard to that admission, the amount of alcohol which she consumed (which she regarded to be her limit before becoming 'legless' – ts 74), her argument with Michael Roberts and the fact that she was noticeably upset at closing time (ts 32, 34),  I am satisfied that she was affected by alcohol by the end of the evening.  That finding is consistent with her having consumed the better part of half a bottle of wine and numerous full‑strength beers (middies by her account) over a period of approximately three and a half hours.  However, I accept her evidence that she had her last drink at about 10pm, since it is common ground that she spent much of her time after then dancing, speaking with Michael Roberts, Murry Pattison and others and making her way to the Larson.

2. I am not satisfied that Ms Campbell drank enough alcohol to become very intoxicated and, having regard to her thought-processes and the absence of any evidence at all of any physical or spoken impediment, I am satisfied that she was at worst mildly intoxicated by the time the Larson came to depart.

Kate Campbell's knowledge of Luke Woollard's intoxication

1. My reasons for my findings about Luke Woollard's intoxication at the time of the second trip include findings of fact which provide evidence of Ms Campbell's means of knowledge of the same, but they are not conclusive of that issue, to which I now turn.

2. I find that Ms Campbell was aware that Luke Woollard had been drinking for hours, and that he was somewhat intoxicated.  My reasons are as follows:

   (i)She was aware that Luke Woollard had been drinking wine during the afternoon, since she witnessed that on the Larson.  She was not aware that he had also been drinking beer since the empty stubbies were out of sight (Luke Woollard, ts 360) and there is no evidence that she saw them or heard anything about them.  I am satisfied that the quantity of alcohol which Luke Woollard consumed before the tavern function was sufficient for him to be somewhat impaired and uninhibited whilst Ms Campbell was onboard, but whether or not those effects were noticeable to her at that stage is problematic given that he was only a passenger at that stage and he was not called upon to exhibit any greater motor-skill than to drink from a goon‑bag (problematic as that might have been having regard to Michael Robert's evidence about the difficulties of  doing so whilst the vessel was in motion).  There is no evidence that his speech was impaired and, in particular, Ms Campbell had very little interaction with him at that time.  Moreover, any signs of merriment or disinhibition were potentially attributable to the occasion.

   (ii)She was not present during any goon‑skolling on the Matilda Bay foreshore, but had no reason to believe that Luke Woollard stopped drinking wine on or about the Larson after she disembarked.

   (iii)Similarly, she was unaware how much he drank at the tavern function.   Having said that, I find that she must have known that he had been drinking during the night since he and his friends attended for that purpose and Michael Roberts and Murry Pattison were, I find, visibly quite drunk by the end of the function.  As to that issue, Michael Roberts testified that he was 'very intoxicated' (ts 160), and Gregory Wishart equated his intoxication with that of Murry Pattison (par 31).  Mr Pattison himself stated that he was 'pretty drunk' (par 43) which Michael Roberts confirmed (par 23).  Ms Campbell also believed that Michael Roberts was 'quite drunk' (ts 73, 78) but believed that Murry Pattison 'appeared fine' insofar as he did not slur his words or stumble in his movements (ts 78).

   (iv)Ms Campbell noticed Luke Woollard having trouble untying the Larson and also saw his brusque behaviour towards Murry Pattison shortly afterwards.  This sort of behaviour was sufficient for her to accept that Mr Woollard was intoxicated to some extent (exhibit 2, par 113).

3. However, I find that Ms Campbell did not know that Luke Woollard was as intoxicated as he actually was.  In addition to the circumstances which I have just mentioned, I accept her evidence that she did not know him well (and thus could not have been well acquainted with his propensity for binge-drinking).  This finding is consistent with her evidence, which I also accept, that she became upset with Michael Roberts at the tavern function because she believed that he had failed to reciprocate the effort which she felt that she had made earlier in the evening to get to know his friends.  In short, there was simply nothing to disclose the true position to her until shortly before the collision and she did not enjoy the benefit of hindsight and/or a formal investigation.  At the most, there were grounds for suspicion on her part, but that is not the same thing as knowledge and I am unable to infer that it is more probable than not that she had the requisite knowledge.

Ms Campbell's appreciation of Luke Woollard's level of impairment or intentions regarding the second trip

1. I propose to commence this part of my reasons by addressing what the passengers on the Larson should be taken to have expected of the second trip when it began.

2. First, I find that no-one could have expected the trip to be a quick one.  Michael Roberts estimated that in normal circumstances (ie, travelling at high speed in daylight) the voyage from Matilda Bay to the collision site would take about 7 or 8 minutes (ts 180).  However, having regard to the number of people onboard and their cramped accommodation, and the darkness, no-one could have expected Luke Woollard to drive at anything like that speed, and certainly no skylarking could have been anticipated. Indeed, Mr Woollard confirmed that he had driven the Larson at night on previous occasions and that it was necessary to 'go slow' in order to keep a proper lookout, amongst other reasons which he did not elaborate upon (ts 335).  This finding is supported by the facts that the Larson was driven in a leisurely and safe manner during the first trip, the radio was switched on for the trip and almost everyone was in a good mood.  At an average speed of 9 knots (or 16.7 km per hour) the second trip would take approximately 25 minutes.  That speed allows for manoeuvring the vessel in Matilda Bay and later at Salter Point, and passing through the Canning Bridge, but otherwise travelling at the maximum allowable speed.  I am not saying that the passengers' reasoning followed these exact lines, but I do find that no-one could have expected the duration of the trip to be as quick as 7 or 8 minutes, or anything like that brief.

3. Next, the Larson was a well‑found, easily driven and very manoeuvrable vessel.

4. Also, Luke Woollard's remark about the boat belonging to his father disclosed some acceptance of responsibility on his part and an appreciation of the need for caution – ie, that he did not want risks taken with the boat.

5. There were, indeed, obvious risks associated with the second trip.  I find that these included the risks of a collision with a static object or another vessel, running aground, or capsizing because of misadventure (eg, upon taking sudden evasive action to avoid a collision) but not capsizing due to the number of passengers, all of whom had a seat except for Murry Pattison who took up a safe, standing position.  To a lesser degree the obvious risks also included the Larson sinking or being stranded (with or without a fire) owing to a mechanical or structural failure.

6. A typical person weighing up these risks would also be aware that the Larson would not be travelling at high speed and that none of the static hazards on the river were concealed.  Whilst not all were illuminated, there is no evidence that any of them could not be seen at a safe distance by a skipper who was paying attention and driving at a slow or even modest speed, even one who had been drinking. 

7. I find that this was the thinking of the passengers on the Larson other than Kate Campbell (to whom I shall return). Both Michael Roberts (statement par 56 and ts 178) and Katherine Kerr (ts 261) summed up the position when they frankly said that they regarded complacency as having contributed to them undertaking the journey.  That is entirely consistent with the purpose of the second trip. In short, there was nothing to indicate that any risks would be taken other than the risks associated with an unrushed, leisurely cruise on the river at night. On that basis, the risk of a static object being completely missed, or picked up too late to be avoided in the protected waters of the Swan and Canning Rivers, was very minimal.  Moreover, on those premises there was nothing to indicate that any great harm could come to anyone even if anything went wrong, as Ms Kerr said to her friend Jess.

8. As for Kate Campbell, having regard to what I ascertained during her evidence, and from other evidence about her (including the expert evidence), I have formed the impression that she was at the relevant time a 'stickler' about many things.  She agreed that she was constitutionally a sensible and cautious person (ts 60) and I sense she had a very structured (or black and white) attitude to life and decision‑making generally (and she still does).

9. It is apparent from her evidence that at the relevant time she perceived a difference between the risks associated with accepting a lift in a motor vehicle driven by an intoxicated person and the risks associated with accepting a lift in a pleasure craft with such a person (as did Katherine Kerr), but she did agree that accepting a ride from a skipper who was known to be drunk would be 'risky' (ts 87) and that it could be said that she understood that navigating on the river at night required a high degree of skill (ts 90).  She was, in fact, a little more worried about the second trip than was Ms Kerr, who basically laughed off her own concerns.  In other words, I am satisfied that Ms Campbell's instincts about safety were more aroused than those of the other passengers.  I find that she did have misgivings, as she told Ms Honnor (although I have not overlooked the possibility that those instructions were another reconstruction or rationalisation, as Ms Honnor herself suspected ‑ ts 285).  However, I find that her main concern related to travelling in darkness, rather than the capacity of Luke Woollard to drive (ts 89).  I accept her evidence that her decision to join the trip was partly based upon her belief, based upon what she had previously gathered, that Luke Woollard, Murry Pattison and Michael Roberts were experienced at boating at night on the river and would know what they were doing.  I also accept her evidence that she 'did not have serious concerns' for her safety (ts 90).

10. It must be remembered that Ms Campbell had no relevant experience of boats or of travel on the river at night or day.  So, whilst she might not have been as complacent as the others about the second trip, she was very naïve about it.

11. Moreover, and critically, I find that there was insufficient evidence available to her before the second trip commenced to place her on notice that Luke Woollard was too intoxicated to control the Larson if he drove as expected.  In this regard, I have taken into account my findings and reasons at [248] and [249] above. 

12. I further find that there was nothing to indicate to Ms Campbell that the trip would be undertaken in any way other than as expected, namely without any haste and at a comfortable speed, and with a proper lookout being kept.

Ms Campbell's options

1. I find that Ms Campbell had time to assess the general situation and weigh up her options before the second trip got underway, as she accepted herself (ts 98).

2. Mr Cywicki submitted that Ms Campbell had a number of viable, safe options besides accepting a ride on the Larson.  It was suggested that she could have taken a taxi (with Murry Pattison's assistance) or sought the assistance of the UWA security office.  Ms Campbell rejected those proposals, and rightly so in my opinion.  I am satisfied that she was justified in not trying to catch a taxi alone at night in a quiet place like Matilda Bay.  Curiously, no‑one seems to have considered the possibility that someone (such as Michael Roberts) might have waited with her and/or shared a taxi with her.  However, I am not satisfied that was a viable option for her, as it would have placed her in an invidious position with the group as a whole and in particular with Mr Roberts with whom she was trying to patch things up.  It would have been churlish for her to expect the others to have changed their plans, especially once Luke Woollard took the helm, given the happy mood of the others.  At that point everyone was settled and the vessel was ready.

3. Moreover, I find that Luke Woollard started the Larson and began to set off almost immediately after he took the helm, which left no time for her to assess his fitness and her options in the light of the fact that he would be driving.

4. I find that Ms Campbell had no reason to change her mind as the Larson left Matilda Bay or as it crossed Melville Water.  I am satisfied that it would have been open to her to put her foot down and insist on something being done if any skylarking or anything else that was worrisome occurred (remembering that she could rely on Murry Pattison and probably Michael Roberts to take up her concerns) but, on my findings, there was no occasion for anything of that kind until immediately before the collision when the skylarking (ie intoxication) kicked in.

5. I turn now to apply my findings to the law.

Application of the facts to the law

1. Having taken into account the matters set out in s 5B of the CLA and the navigation risks which I have mentioned, I am satisfied that Luke Woollard's duty of care during the second trip required him to drive at a modest speed and at no more than the speed limit, on a careful course and to keep a proper lookout. Based on my findings I find that he breached that duty of care.

2. I therefore find that the collision was caused by Mr Woollard's negligence.

3. I turn now to consider Mr Woollard's common law defences, commencing with the defence of 'no breach of duty'.

4. I have found that Luke Woollard was intoxicated.  I have also found that his intoxication contributed to the occurrence of the collision because it was instrumental in him speeding and swerving.  However, I have not found that he was seriously intoxicated (drunk) in the sense countenanced by the principles relating to this defence.  In any event, I have further found that whilst Kate Campbell knew that Luke Woollard was intoxicated to some extent, she could not have known, and thus did not know, the actual extent until it was too late, namely when he began to skylark.

5. In these circumstances, the 'no breach of duty' defence fails.

6. I turn now to consider the defence of voluntary assumption of risk.

7. I have found that Ms Campbell was aware of some of the risks of going on the second trip, relevantly the risks of a collision or mishandling due to a combination of darkness and the possibility of Luke Woollard being intoxicated (ie, the possibility of having impaired judgment and handling ability).  However, I find that Ms Campbell was not aware, and had no means of knowing, that Luke Woollard would speed, fishtail or skylark in any other manner or that he would fail to ensure that a proper lookout was kept (by himself or anyone else for that matter).  In other words, I find that Ms Campbell was not aware of the risks which manifested themselves.

8. Accordingly, the voluntary assumption of risk defence also fails.

9. I turn now to consider the 'dangerous recreational activity' defence.

10. The obvious risks associated with the second trip are set out at [254] above. Clearly, the collision occurred as a result of the occurrence of one of those risks, namely a collision between the Larson and the port navigation beacon.

11. The issue for me to decide is whether the plaintiff, Kate Campbell, was engaged in a 'dangerous recreational activity' at the time.

12. Mr Cridland accepted that the use of the Larson as a speedboat for the purpose of skiing or a similar activity would be a 'recreational activity' within the defined meaning of that term, but submitted that such was not the case during the second trip because the Larson was simply being used as a means of transportation.  I accept the principle which underlies that submission, but it is not applicable to this matter. 

13. In this case the Larson was used for enjoyment, relaxation or leisure during the second trip even whilst serving another purpose, namely transportation, as was the case with the trip between Mt Pleasant and Matilda Bay on the Friday afternoon.  In my opinion it is not a requirement of the statutory definition that an activity be solely for the purpose of enjoyment, relaxation or leisure.

14. Mr Cwyicki referred me to Nicol v Whiteoak (No 2) [2011] NSWSC 1486, the facts of which are superficially similar to this case. The plaintiff was seriously injured and her skipper was killed in a collision between two pleasure craft at dusk on the Georges River, a popular waterway near Sydney. The plaintiff sued the estate of the skipper who had an alcohol concentration of 0.114 g/100 ml and cannabis residue in his blood when the collision occurred. The trial judge (Adamson J) found that the collision was caused by the deceased's negligence insofar as he drove his vessel at an extremely high speed whilst intoxicated and whilst the vessel was not illuminated. His Honour found that the deceased was engaged in a dangerous recreational activity at the time.  He said (at [49], the numerals are mine);

    The recreational activity in question can be viewed at various levels of generality.  Travelling on a motor vessel in a protected waterway such as the Georges River may not be dangerous at all if the driver of the vessel is not intoxicated and is taking due care.  However where, as here, (1) it was dusk, (2) the boat was not illuminated, (3) it was travelling at [a very high] speed … and (4) … the driver is intoxicated, the recreational activity of boating on a river had become, by those circumstances, dangerous.

1. Mr Cywicki submitted that all of the factors which I have enumerated (1) ‑ (4) were present in this case.  That is not entirely so since I have found that the navigation lights of the Larson were illuminated, but that it is irrelevant since their presence or otherwise made no material contribution to the collision and, on the evidence, there is no basis to find that Ms Campbell was mindful of this aspect.  Otherwise, I accept that Luke Woollard was engaged in a dangerous recreational activity when the collision occurred insofar as he caused the Larson to swerve or fishtail at an excessive speed on a darkened river with fixed hazards.

2. However, that is not decisive of this matter as Nicol demonstrates.  In that case Adamson J held that the plaintiff herself was not engaged in a dangerous recreational activity since, on the evidence, there was nothing to suggest that she 'went along with' the deceased's dangerous driving. His Honour said (at [73]):

   In the absence of any evidence to implicate the plaintiff in the dangerous aspects of the otherwise relatively safe recreational activity of travelling on a boat in a protected waterway such as the Georges' River, I find that the first defendant has not discharged the burden of proof of establishing a defence under s 5L of the Act.  (Emphasis added)

3. In my view, it is apparent from Nicol and the other decisions to which I have referred that differing findings might be open in respect of different participants in a recreational activity because the notion of 'engaging in' a recreational activity predicates a degree of willing participation by the plaintiff.  Mr Cywicki did not challenge that proposition, but submitted that the factors which made the second trip dangerous in this case were present from the outset and that Kate Campbell was aware of them.

4. I have found that all of the participants in the second voyage (save for Kate Campbell to some extent) were complacent as to the risks of travelling on the river at night, notwithstanding the presence of factors such as the darkness and Mr Woollard's drinking.  Those factors were insufficient to defeat the plaintiff's claim in Nicol and such is also the case in this matter because, in my opinion, Luke Woollard's excessive speed and swerving introduced unexpected, unforeseeable and previously unknown factors which Kate Campbell did not go along with.  In that respect, I have not overlooked the circumstance that, based on my findings, she did not attempt to do anything to induce Mr Woollard to desist. However, the material element of danger was not introduced into the trip until shortly before the collision.  There is no evidence that from its outset the 'adventure' (to use Michael Roberts' phrase) could or would change from what Ms Campbell expected (see [261] above) into dangerous skylarking until it was too late for anyone to do anything about it (when the warning of Katherine Kerr was to no avail anyway).

5. I therefore find that Luke Woollard engaged in a dangerous recreational activity which was unexpectedly imposed on Ms Campbell very late in the second trip. There is no evidence to implicate her in anything other than a safe recreational activity and she did not engage in a dangerous recreational activity. Therefore, Mr Woollard's defence under s 5H fails.

6. I turn now to address the allegation of contributory negligence.  The court's statutory power to reduce an award of damages by reason of a plaintiff's contributory negligence is conferred by s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution Act) 1947.  When apportioning liability the court is required to determine what is 'just' having regard to the culpability of the plaintiff and defendant.

7. Section 5K of the CLA provides that the standard of care that applies to determining whether a plaintiff has been guilty of contributory negligent is the same as that which applies to the defendant's duty of care (see s 5B). As such, the standard of care is determined objectively by reference to a reasonable person of similar age who knew what the plaintiff knew or should reasonably have known in the circumstances which applied at the time. It is to be noted that this is a partly objective test, unlike the defences of 'no duty of care' and 'voluntary assumption of risk' which direct attention to the subjective circumstances of the plaintiff.

8. Section 5L provides for a rebuttable presumption of contributory negligence in a case in which the plaintiff was voluntarily intoxicated (as that word is defined in s 5L(4)) but the presumption has not been pleaded in this matter.  A plaintiff may still be proved to have been contributorily negligent whilst intoxicated without reliance upon the presumption.

9. I have found that Ms Campbell was intoxicated to some extent, but in no way did she place herself at risk. On the contrary, she was alert to the need to take care for her own safety.

10. I have also made findings as to Ms Campbell's knowledge and means of knowledge of Luke Woollard's alcohol consumption, level of intoxication and fitness to drive the Larson.

11. In my opinion the level of risk associated with Mr Woollard's objectively discernible intoxication and impairment was very low having regard to the expected nature of the second trip and barely different from the risks if he had not been intoxicated.  Unlike the driving of a motor vehicle, the proposed second trip was expected to be a leisurely cruise in a suitable vessel over known and basically deserted protected waters and, from both a subjective and objective point of view, none of the passengers were negligent in accepting a ride.  In my opinion the defence of contributory negligence fails.

Assessment of damages

1. I move now to address Ms Campbell's damages for pain and suffering, loss of the amenities of life and loss of the enjoyment of life.

2. From an orthopaedic point of view Ms Campbell is restricted by her ankle injury and has pelvic and cervical injuries.

3. She has made a good recovery from her respiratory and throat injuries, but I find that she must still carefully coordinate functions such as breathing, swallowing and speaking.  I further accept that her voice is now weak, has a low pitch and is inclined to fade with tiredness, all of which I noticed during her evidence.  Ms Campbell testified that these disabilities have restricted her ability to take part in high level competitive sport and other physically and aerobically demanding leisure activities.  She is now very limited in terms of public speaking, drama and the like, to which she was attracted before being injured. I accept her evidence which was unchallenged and supported by the evidence of Ms Cook and Mandy Campbell.  I accept that this loss has been very significant to Ms Campbell who was a very competitive, active and sports and leisure‑minded person before being injured and, I further find, would have remained so if she had not been injured.

4. From a dental point of view, Ms Campbell's implants have been a great success both functionally and cosmetically.  However, they do need to be carefully maintained and it is agreed that her 14 titanium implants will need to be replaced at 10 to 15 year intervals.  The exact nature of the surgery on each occasion cannot be predicted at this stage, but there is no doubt that it will require surgical intervention either in a hospital or a dental clinic.  This procedure will be painful, although not as painful as the original bone graft and installation.

5. Ms Campbell has been left with noticeable scarring on the right lower side of her face and on her lower throat.

6. I accept Ms Campbell's evidence and the expert opinion to the effect that Ms Campbell's psychiatric illness (ie, depression with sub‑clinical PTSD) has in the past impacted on her psychological wellbeing very significantly and that she has at times had suicidal ideations.  I am not satisfied that such is the present position, since she has not needed to see Dr Adams for some months.  In other words, she is slowly on the mend.  The prognosis is favourable, but dependent on the elimination of stressors which include this litigation and her compliance with medication and therapy as required.  In my opinion, one of the goals of that therapy will need to address Ms Campbell's unhelpful and, at times, totally misconceived thought-processes, as Ms Honnor said.  Also, based on Dr Adams' evidence I find that because of her illness Ms Campbell will be at an elevated risk of a relapse in the future for a reason which may, or may not, be related to this matter.  For example, she now has an elevated risk of suffering from post‑natal depression.  I am satisfied that any future relapse could involve very serious symptoms and require substantial medical and therapeutic intervention.

7. In my opinion Ms Campbell's residual injuries will also adversely impact on her enjoyment of life from a vocational point of view (which is not to be confused with diminution in her earning capacity of which there will be none).  I find that Ms Campbell must now accept less variety in her employment horizons which, in turn, potentially impacts on sources of enjoyment, self‑esteem and the non‑financial advancement in life which is provided by a fulfilling career.

8. Lastly, but not least, I take into account Ms Campbell's pain and suffering, loss of amenities of life and loss of enjoyment of life between the date of the collision and the trial.  Initially, Ms Campbell suffered from some very painful and frankly ghastly experiences as she underwent a lengthy, painful and frustrating rehabilitation process from which there was no real relief until the completion of her dental reconstructive surgery.  And, as I have said, she suffered periods of great psychological sickness in the past.

9. Drawing all of these matters together I am satisfied that Ms Campbell is entitled to a very substantial award of damages for pain and suffering, loss of amenities of life, loss of enjoyment of life and bodily and mental harm.  To look at her one could be excused for believing that she has survived her injuries with very little residual harm.  However, she has suffered and will continue to suffer harm in a number of respects and one must remember she was only 19 years of age when she was injured and had ambitious plans for herself.  She is now, quite frankly, a different person to what she would probably have been and has achieved much of her recovery by sheer courage and willpower which she will also need in the future.

10. Given the unusual circumstances of this case, I found that very little direct assistance was to be obtained from a consideration of awards in other cases, but I have not ignored them.

11. An assessment of damages is a matter of practical common-sense based on the facts of a particular case and is not a precise science.  Ultimately, it is an intuitive exercise (see Paul v Rendell (1981) 34 ALR 569, 571, Judicial Committee of the Privy Council, Van Gervan v Fenton (1992) 175 CLR 327, 343 Deane and Dawson JJ, and Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497, (Buss JA) [28] ). In this respect it is the combined impact of the various disabilities that must be assessed.

12. Having regard to all of these matters, I am satisfied that an appropriate award of damages for pain and suffering, loss of amenities of life, loss of enjoyment of life and bodily and mental harm is $80,000.

13. The restrictions on damages for non‑pecuniary loss provided for in CLA s 9 are not applicable since the award of $80,000 exceeds the combined total of Amounts A and C, namely $70,500 ($17,500 plus $53,000: see the Government Gazette, 28 June 2011, p 2566).

14. I therefore find that Ms Campbell is entitled to damages, including interest, in the sum of $229,626.80, comprising agreed special damages, general damages and interest in the sum of $149,626.80 and general damages for pain and suffering, loss of amenities of life, loss of enjoyment of life and bodily and mental harm in the sum of $80,000.

Conclusion

1. For these reasons Ms Campbell's claim succeeds and she is entitled to judgment in the sum of $229,626.80.