Connolly v Burton

[2007] NSWSC 1484

CITATION:	CONNOLLY v BURTON [2007] NSWSC 1484
HEARING DATE(S):	2 - 8 October 2007 and 21 November 2007
JUDGMENT DATE :	18 December 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $1,018,253.20; 2. The defendant to pay the plaintiff's costs.
LEGISLATION CITED:	Superannuation Guarantee (Administration) Act (Cth) 1992
CASES CITED:	Baker v Willoughby [1970] AC 467 Cattanach v Melchior (2003) 215 CLR 1 DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 Faulkner v Keffalinos (1971) ALJR 80 Fox v Wood (1981) 148 CLR 438 Jobling v Associated Dairies Ltd [1982] AC 794 Minister Administering the Environment Planning and Assessment Act 1979 v San Sebastian Pty Ltd & Ors [1983] 2 NSWLR 286 MPB(SA) Pty Ltd v Gogic (1991) 71 CLR 657 Mt Isa Mines Limited v Pusey (1970) 125 CLR 383 Norris v Blake [No 2] (1997) 41 NSWLR 49 State of New South Wales v Moss (2000) 54 NSWLR 536
PARTIES:	Mark Joseph Connolly (Pltf) Billy Burton (Def)
FILE NUMBER(S):	SC 20422/99
COUNSEL:	P Greenwood SC/T Morahan (Pltf) J Maconachie QC/S Torrington/A Ketas (Def)
SOLICITORS:	A R Conolly & Company (Pltf) Moray & Agnew (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

TUESDAY 18 DECEMBER 2007

20422/99 CONNOLLY v BURTON

JUDGMENT

1 HIS HONOUR: The plaintiff sues for damages in respect of injuries he sustained on 7 June 1999 during the filming of a scene for the movie Mission Impossible 11 at Bare Island, La Perouse. The plaintiff was a stunt performer who had been engaged by Paramount (Australia) Pty Limited to play the role of a “gate guard.”

2 The defendant, Mr Billy Burton was the second unit director of the film and had responsibility for directing the action sequences. The defendant joined as cross-defendants Paramount Pictures (Australia) Pty Ltd and Douglas McDonald (Rocky McDonald) the Australian assistant stunt co-ordinator. However, each of those proceedings have been settled.

3 The accident occurred at about 4.30 pm during the filming of an action shot in which a motor cycle, suspended on wires, was launched from a ramp behind the plaintiff. The plaintiff had been directed to face away from the motorcycle and fire blank shots from a pistol at a helicopter which was hovering nearby. He was to be cued to turn away from the helicopter and shoot at the bike as it travelled past him in the air and at the same time he was to fall away from its path. It will be necessary to explore in detail the sequence of events and how it happened that the plaintiff remained in the path of the cycle which struck him causing severe injuries.

The plaintiff

4 The plaintiff was an experienced stunt performer at the time of the accident. He commenced his initial training in about 1986 with Mr Rangi Nikora, a New Zealand stunt co-ordinator and was particularly competent in martial arts and the handling of weapons. He had performed many stunts, including precision driving stunts and had acted as a double for the main actors. He is in excess of 6 feet in height and had a strong physique making him particularly suitable for roles in action movies.

5 At the time of the accident the plaintiff had completed full time training over a two year period with Mr Nikora so that he could obtain work as a stuntman. Ms Gilliam Statham, a stunt performer who also trained under Mr Nikora gave evidence that the training with Mr Nikora was “extremely hard”. Out of the 30 people who started the stunt training course with Mr Nikora, she and the plaintiff were two out of only six people to successfully complete the course. She recalls that the plaintiff performed the training tasks “just as well as anyone else in the group”.

6 Ms Statham says Mr Nikora’s training covered all areas of stunt work. She explained that Mr Nikora taught high-level skills that stunt performers usually only learn after they are graded as Stunt Action Personnel.

7 Ms Statham says the training allowed performers to come into the industry at a higher level than other stunt performers because Mr Nikora’s training covered skills that others coming into the industry would not have covered. Ms Statham believes that it was rare for performers who had not trained with Mr Nikora to have the high level skills that those who trained with him possessed. When asked by counsel for the defendant whether she thought the two years spent training with Mr Nikora had put her in a more favourable position as an employee, Ms Statham said “I definitely believe that”.

8 In 1998 the plaintiff was invited to join the Stunt Agency which was the then premier agency for stunt performers in Australia. At the time of the accident I am in no doubt that his career was on the ascendency. Although the industry is competitive and, as with principal actors the flow of work may not be consistent, but for the accident he would have continued as a stunt performer for the foreseeable future.

9 The plaintiff has recently been diagnosed with pancreatic cancer. Because of concerns with respect to his health arrangements were made for his evidence to be taken before Mr Menzies SC as Commissioner on 12, 13 and 14 June 2007. The transcript of these proceedings was tendered together with his written statement.

The defendant and others on site

10 Mr Billy Burton was engaged by Paramount Overseas Production Inc to be the second unit director for the movie. He signed a written contract in the form known as the Director’s Guild of America basic agreement of 1993. He also signed a Screen Actor’s Guild contract with Paramount pursuant to which he was to render services as a “utility stunt.” However, it was not intended that he perform a stunt and this agreement was entered into merely so that he could receive “residuals” on later earnings of the movie and sales of any DVDs. When he signed the latter agreement Mr Burton inserted the words “stunt coordinator 2nd unit” but these were deleted by the representative of Paramount. Although Mr Burton received wages as a “utility stunt” from at least November 1998 to July 1999 he did not perform any work in that role.

11 A second unit director is, as the name suggests, responsible for directing the action sequences of a movie. He or she is responsible for ensuring that those sequences when ultimately edited appropriately contribute to the completed movie. A movie set is controlled by a number of people and it is common to refer to their responsibilities as falling into particular “compartments.” On this site, on the relevant day apart from the actors and support staff there was Mr Brian Smrz who was the second unit stunt coordinator, his assistant, Mr Rocky McDonald and Mr Grant Page who was the designated safety officer and Mr Bob Donaldson who was the first assistant director.

12 In the ordinary course the director identifies the sequence which he wishes to be filmed so that it will effectively contribute to the final version of the movie. The stunt coordinator has responsibility for organising the stunt to achieve the director’s wishes. The safety officer has responsibility for ensuring that the stunt is carried out safely with authority to halt activities if safety concerns arise.

The relevant events

13 Evidence was given by a number of persons who were present on the site on the day of the accident. Because a movie was being made there is film of the accident as it occurred. This was tendered in evidence. The film script called for a car to be driven onto a bridge which provided access to Bare Island. After it had moved onto the bridge it was to catch fire, explode and be hurled into the water. At the same time a motor-cycle was to emerge from Bare Island and pass over the gates at the end of the bridge and land on the bridge beyond two guards who were standing on the approaches to the bridge. The two guards were required to shoot at a helicopter which was hovering to the east of the bridge and on becoming aware of the motor cycle which was approaching them from the south, turn and shoot at the motor cycle. They were required to fall away from the cycle as it passed so that they were not injured.

The morning sequence

14 The arrangements to film these sequences were complex. The number of people on the site on this day exceeded 100. They arrived early in the morning. During the morning the sequence involving the car was rehearsed and attempts made to film its movement and ultimate explosion. Those attempts were not successful.

15 The plaintiff arrived onsite early that morning. He was called down to the set at about 11 am together with the actor playing the second guard whose name was Jon Heaney. They met the defendant and Mr Donaldson on the bridge. Mr Burton instructed the plaintiff that he was to position himself so that he could fire at the helicopter and then, on cue, turn at the last minute as the bike came over him, pull backwards and shoot as the rider passed over head. When the scene was being discussed it was anticipated that Mr Donaldson would give the cue by calling out “bike.” However, this was not possible due to the fact that the actors were wearing ear plugs and there was significant noise from the helicopters and the firing of blank bullets. The plaintiff understood that the cue would be given by Mr Page moving his hand down past his face at the appropriate time.

16 The scene was rehearsed a number of times. At one stage the helicopters were having problems and preparations were delayed when they had to refuel. At another stage the motor vehicle was having problems in being accurately positioned. There were also problems with the motor cycle including difficulties in setting up its fly rig.

17 At the same time as the explosion was being filmed the motor cycle sequence including the guards, was also being rehearsed. The cycle was suspended on wires between two cranes referred to as a rig which fires the bike down a device known as a traveller. The cycle was being ridden by another stunt actor. Apparently in the morning rehearsal the sling malfunctioned and the bike veered out of control. The rider became entangled in the wires and was fortunate to escape serious injury.

18 The plaintiff says as things went wrong the atmosphere on the set became extremely tense. This was not surprising. Given the number of people on site and the equipment being utilised the cost would have been significant.

19 Mr Burton gave evidence before me. He impressed me as a man prone to impatience with high expectations that his instructions will be obeyed. He described himself as a person who “makes things happen.” He said that his mood was “always of passion and get it done and sometimes I am a little loud and I am a little energetic and I talk loud and I make things happen.” I have no doubt that this is an accurate description of his behaviour on the relevant day. He was not in a mood to take no for an answer.

The afternoon sequence

20 After the problems of the morning activities were suspended for lunch. When the plaintiff came back onto the set after lunch he waited with Jon Heaney in the area where they had been marked to stand during the morning’s rehearsals. The plaintiff said that it was quite late in the day when Mr Burton came down onto the bridge and said to everyone around in a loud and aggressive manner: “We’ve got to get something in the can for today. We only have 20 minutes of usable light. We have to have something out of today.”

21 The plaintiff says that Mr Burton approached him and Mr Heaney and said: “We’re going to cheat you back 8 feet and bring you into the middle of the bridge to make it look like you’re talking. It’s going to be a reverse shot so we’ve got something in the tin.” When using the expression “cheating” Mr Burton was referring to the fact that although their physical location would be altered on the camera it would appear as if they were standing in the same place as in the original sequence. The plaintiff says that Mr Burton continued and said:

“Don’t turn around because you don’t know the motor cycle is there. Wait for Grant’s cue. Otherwise the shot will be ruined. Wait for Grant’s cue.”

22 The plaintiff says that Mr Burton was emphatic and said:

“Don’t turn around too soon. You don’t know the motor cycle is there. You’re shooting at the helicopters. You hear the motor cycle as it gets close to you and then you turn around and shoot at it.”

23 The plaintiff says that Mr Burton was stressed at this stage. He recalls that Grant Page was present but does not remember where Mr McDonald was. The plaintiff says that he was concerned about the safety of the proposed manoeuvre and said to Mr Burton:

“Sir, this is going to change the timing for us.”

24 The plaintiff had in mind that by moving closer to the point from which the motor cycle was moving toward them there would be less time between when it came into view and the time at which the cue to move away could be given. He said that Mr Burton threw his arms up into the air, turned as he walked away and said: “Just fucking work it out.” The plaintiff said that Grant Page then came over to him and said: “I’ll cue you earlier to make up for it.” The action with the guards standing in their new position was not rehearsed.

25 The plaintiff said that everyone took up their positions. Because the plaintiff and Mr Heaney had been moved more into the centre of the bridge they were in the line of the motor cycle. The action call was given and the plaintiff and John Heaney started firing at the helicopter and discharged a few rounds. He said he did not see any cue from Grant Page and he decided to turn away because he knew he was in a dangerous position with less time to react. As he started to turn he was struck by the motor cycle. He did not see the cycle before it hit him. The front wheel of the motor cycle hit his right arm, the blinker hit the right side of his face and the frame of the bike struck him in the right shoulder blade. He was thrown forward and hit the ground. One of his teeth fell out. He immediately knew that his arm was broken.

26 He said that Mr Page came over to him and said: “Didn’t you hear the cue?” The plaintiff says that he put his left arm up and pulled out his right ear plug and said to Mr Page: “What fucking cue?” The plaintiff says that with the attendant noise which required the use of ear plugs the only effective cue was visual.

27 I accept the plaintiff’s evidence.

Mr Burton’s evidence

28 Mr Burton gave evidence of the events. Although he clearly recalls some matters, in my judgment, his recollection of some of the events is clearly faulty and does not accord with the sequence of events confirmed from other evidence. This is not surprising given the lapse of time since the accident. Where his evidence differs from the plaintiff I prefer the plaintiff’s account.

29 Mr Burton recalls giving directions which altered the positions of the stunt guardsmen from the morning to the afternoon shoot. He said that together with the camera operators the stunt actors were given their positions that would be best for the camera. He said he was also concerned about the safety of the operation. He said that the shot was discussed amongst a number of people and the positions of the actors and cameras were worked out. Mr Burton has no recollection of the plaintiff expressing concern about being moved closer to the gate.

30 Mr Burton says that he does not recall walking away from Mr Heaney and the plaintiff and saying words to the effect: “you just work it out.” Notwithstanding his lack of recollection I am completely satisfied that this conversation occurred.

31 When cross-examined Mr Burton revealed that he had never wanted the motor cycle to be confined by cables. He thought that given the capacity of cyclists to perform tricks the cables and attachments were a waste of money. He denied that he was agitated or irritated but I am in no doubt that this was the case. He accepted that he may be aggressive and said “from the moment I get to the minute I leave I want every shot I can get.” He agreed that he told the stuntmen where to stand. He denied that he moved them closer together. In this respect I prefer the evidence of the plaintiff. It was put to him that the actors were moved so that they were just an arms length away from each other. Mr Burton said he did not recall this.

32 Mr Burton was asked about whether on more than one occasion he had instructed the stunt actors not to turn around. Initially, he said: “I deny that. I don’t recall that. Don’t recall it.” He was then asked:

“Q. And you said to them, wait for Grant’s cue otherwise the shot will be ruined, wait for Grant’s cue”, didn’t you?
A. I don’t recall that either.”

33 Mr Burton was asked:

“Q: Do you say firstly that you believed at the time that what you were doing was safer for them?

A: Put it this way, it was not unsafe for them.

Q: Did you think about whether it was safe or less safe for them at the time, Mr Burton?

A: I always think about safety. I always think about – nothing has to be unsafe if you know where to put the cameras and you know your angles and I am an expert at angles.”

34 Mr Burton admitted that he knew that Mr Page had been designated to give the cue. However, because Mr Page was the safety officer on the set he should not have been given this task. Mr Burton knew this and agreed that Mr McDonald should have had this task.

35 It is obvious from the film of the accident that neither of the actors saw the bike as it was approaching. The plaintiff does turn to look at it immediately before impact which is consistent with his evidence that he was concerned that he was in a position of danger. However, there is no indication on the film that he turned in response to seeing the bike even out of the corner of his eye.

36 There was a discussion with Mr Burton about whether he had positioned the stunt men so that it was impossible for them to see the bike approach them in their peripheral vision. Evidence was given of the original position of the stunt actors, and Mr Page, which indicated that the actors would be looking south of east with a capacity to see the bike approaching out of the corner of their eyes. When the actors were moved closer to the gate Mr Page’s position was altered so that the actors were now required to look north of east if they were to see Mr Page’s cue. I am satisfied that this denied them any effective capacity to see the approaching bike.

37 Mr Burton says that he recalls telling both actors to keep the bike in their peripheral view. This may have been the case in the morning but the altered positions in the afternoon made this impossible. Although Mr Burton says that he considered at the time that the actors would be able to see the bike out of their peripheral vision, the film of the event confirms that this could not have been the case. When Mr Burton said: “I wouldn’t do it any other way” he confirms the approach which should have been adopted. However, I am satisfied that it was not adopted on this occasion.

38 In an accident witness report dated 7 June 1999, Mr Burton said:

“It was one of three set ups left to do that day. It was the same scene we had been on all day. It had been rehearsed and shot previously”
“They (the gate guards) were supposed to dive out of the way. The individual that got injured did not move and was struck by the motorcycle. He stood there frozen and did not move. The other guy moved and was not hurt”

39 In saying that “It had been rehearsed and shot previously” it is unclear whether Mr Burton was referring to previous rehearsals in the morning or was saying that there had been a rehearsal after lunch. In any case, it is inconsistent with the evidence in Mr McDonald’s accident report.

40 Mr Burton recalls there being a rehearsal after the actors were repositioned. His evidence is that there had to have been a rehearsal because the actors and cameras had been moved. The plaintiff says this was not the case. I accept his evidence. The scene was not rehearsed with the “stuntmen in their changed positions.”

Positioning of the stuntmen

41 The film of the incident was taken from a camera positioned slightly toward the western side of the bridge. The plaintiff was positioned on the western side with Mr Heaney to the east of him. The film shows the motorbike making direct contact with the plaintiff as he turned. This would suggest that rather than travelling down the centre of the bridge the bike was off line and had moved to the west. However, whether this is what actually happened or is the impression given because of the camera angles and the actual positioning of the actors cannot be determined. However, Mr Heaney does not move and the motorcycle does not impact upon him. This may have been because he was positioned away from the mid line of the bridge rather than because the bike had veered to the west.

42 The scene was reshot on the day after the accident. On this occasion the actors were positioned further apart and taken clearly out of the path of the bike. Mr Burton said:

“After the incident I wasn’t about to put anybody anywhere near the, that motor cycle and the traveller.
…
I made a change so I wouldn’t hurt somebody else with a faulty rig.”

43 This statement suggests that Mr Burton believes that the plaintiff’s accident was caused by a faulty traveller. Mr McDonald was of the same view. Whether or not the traveller was faulty it is apparent that the plaintiff was positioned in a location where, unless adequate warning, which allowed him to fall out of the way, was given, he was at significant risk of being hit by the motorcycle.

44 Mr Burton was asked:

“Q: There was absolutely no need for the stunt men to be put in the path of the motor cycle in order to get the shot you desired or the impression you wanted, correct?
A: You know, you know, you’re asking me a question that, that is highly – yes, it was. It was very much so. It’s a creative thing. You have to make it exciting and keep it safe and you, you’re saying it wasn’t necessary does not mean it’s not necessary.
Q: I am putting to you, Mr Burton, that you created …
A: It was necessary.
Q: … the effect you wanted the very next day without having people in the path of the motor cycle, didn’t you?
A: No. I compromised.
Q: Just as you could have the day earlier in the interests of safety, correct?
A: No.
Q: Why do you say no Mr Burton?
A: Because I made a compromise the second day after the accident. I had no idea that the man was going to stand there and not move out of the way.
Q: Because you thought …
A: He saw the …
Q: … the motor cycle was coming?
A: He saw the bike coming, as you just said, and elected to stand there instead of jump out of the way as the other man did. I don’t mean to be mean, you have to take some, when – as a stunt man you have to take responsibility to get out of the way and if it is ahead of the cue you’ve got to leave. That responsibility is yours.
…
Q: Mr Burton you admit do you not that you had some responsibility to ensure the safety of this stunt?
A: As I do with all stunts and all action on all of the movies that I do. Yes I have responsibility.”

45 Mr Burton’s response that the other stuntman, Mr Heaney, got out of the way of the motor cycle is not consistent with the action which can be observed on the film of the event. Mr Heaney had not moved by the time the plaintiff had been hit.

The evidence of others about the accident

46 Mr Rocky McDonald gave evidence. He was mainly located on the left side of the bridge facing Bare Island during the afternoon shoot. He says that in the afternoon he saw Mr Burton “running around shouting at people, performers, crew, all sorts of people, telling them what to do, moving people physically, moving cameras physically, and just basically ignoring protocols and shouting at people”.

47 He said that the plaintiff and Mr Heaney were placed in positions that were different to those they had been in earlier in the day.

“They were closer to each other and closer to the gate…I would say within an arms distance (from each other)”

48 Mr McDonald said that early in the morning before rehearsals he heard Bob Donaldson, the first assistant director say to Grant Page that it would be a good idea if he gave the cue. He could not remember whether Mr Burton was present when this occurred. He could not recall anyone else other than Mr Page doing the cuing after this. He did not recall Mr Burton saying something like “you all fucking work it out”. He could not recall hearing anyone say that the changes would change the timing of the cue.

49 Mr McDonald also completed a witness accident report that was dated 7 June 1999 in which he said that:

“Both guards were supposed to turn and see the bike as it cleared the ramp and jump out of the way – from a cue given by Grant Page the safety officer … There was no rehearsal of the action. The action of the two guards was being directed and co-ordinated by Billy Burton with Bob Donaldson.”

50 The plaintiff, Mr Burton and Mr McDonald were the only witnesses called to give evidence. Mr Page was not called by either of the parties nor was Mr Smrz.

Factual conclusion

51 I have already indicated that I accept the plaintiff’s evidence. I am completely satisfied that both the plaintiff and Mr Heaney were repositioned for the afternoon shoot closer to the gate to Bare Island than previously. They were moved approximately “8 feet.” This would have reduced the time between when the motorcycle came into view and when it passed over them. The plaintiff submitted that that difference was significant but in the scheme of this event I am satisfied that this difference in timing did not materially contribute to the accident.

52 However, I am satisfied that the actors were moved closer together. The plaintiff was placed in a position where it was clearly foreseeable that unless he was able to move out of the way he would be hit by the motor cycle as it came across. He had been instructed to look away from the direction of the bike which he could not see in his peripheral vision. Accordingly, if he was to avoid injury he was entirely dependent upon an accurate cue which had to be given visually. Mr Woodward who has worked in the stunt industry since 1981 gave evidence that placing a stunt person in this position made the stunt more dangerous. In the plaintiff’s case that danger materialised when the visual cue was not given. There may have been an oral cue but because of the noise on site that would have been useless. The risk to the plaintiff was increased by the fact that the sequence was not rehearsed.

53 Although Mr Page was the safety officer on site and there were other people who played part in the events on the day of the accident it was the defendant who directed that the plaintiff be positioned in the path of the motor bike. In his role as a director he required this position to be adopted. To my mind he both exercised his authority as the second unit director but he also in part took upon the role of stunt coordinator. He demanded that the scene be configured as he required it, leaving it for others to work out the detail. His personality and manner on this occasion were such that it was unlikely that any one on the site would have questioned his direction or argued that the proposed sequence created unacceptable risks.

Stunt Industry expert evidence in relation to liability
Mr Scott Leva

54 Mr Scott Leva has over 29 years experience working as a stuntman, stunt co-ordinator and second unit director. He examined the documents including incident reports and viewed the footage of the incident and concluded that the defendant had no responsibility for the accident.

55 Mr Leva believes that Mr McDonald should have been in charge of cuing the gate guards, making sure they could see the bike and rehearsing the scene. “Even if the Director was to ask the stunt performers to turn their backs to the bike, the stunt coordinator should have re directed his performers to make sure they did have a visual on the Bike.”

56 He says the Stunt coordinator is responsible for ensuring that stunts can be safely performed. “Some directors will ask for extremely dangerous set ups. In most cases they do not know better when they are looking at their shot. It then falls to the Stunt coordinator to tell them what can and cannot be done.”

57 Mr Leva does not believe that the Second Unit Director can assume the role of stunt coordinator unless contracted to do so or there is no other qualified stunt coordinator on set. He says in this case there was nothing to suggest that Mr Burton was contracted to be a stunt coordinator or assumed such a role.

58 In relation to cueing, Mr Leva says “the cues should have been visual, not verbal. With explosions and gunfire going on at the same time, the chances of hearing a verbal cue were extremely limited. Further, I observed the Mr Connolly wore ear plugs, which would have severely inhibited his ability to hear the verbal cues.”

59 In Mr Leva’s opinion, “… the stunt performers should have had some visual perspective of the bike. They could have been placed in a way that looks as though they are not seeing the bike, but can actually see it from take off to landing. This was proven when the bike went out of control during rehearsal. They saw the bike and were able to get out of the way.”

Mr Brett Anderson

60 Mr Anderson has worked as a director, stunt coordinator, safety officer and stunt performer. His opinion was based only on the DVD footage. Mr Anderson agrees with Mr Leva that Mr Burton was not responsible for the accident. However unlike Mr Leva, he believes that as the main stunt coordinator, it was Mr Smrz and not Mr McDonald who had the final say and responsibility for the set up and execution of action sequences.

Mr Lawrence Woodward

61 Mr Woodward has worked as a stuntman, stunt safety officer and stunt coordinator since 1981. He examined documents relating to the accident including accident reports and viewed the footage of the accident.

62 In his opinion “it is within the power of the Second Unit Director to assume the role of stunt co-ordinator and my observations of the video tapes indicate this is what Mr Billy Burton did…my observations are that by his actions Mr Burton took responsibility as stunt co-ordinator early on the day of the shoot. In my opinion, Mr Burton’s conduct replaced the designated roles of the Stunt Co-ordinators, Mr McDonald and Mr Smrz.”

63 Mr Woodward disagrees with Mr Leva’s view that the Second Unit Director cannot have dual roles and assume the role of stunt coordinator unless contracted to do so or unless there is no other qualified stunt coordinator. In his opinion, Mr Burton assumed the role of stunt coordinator when he personally gave instructions to the stuntmen.

64 In cross-examination, Mr Woodward explained that a director can have a say in stunt sequences. He says that while it is appropriate for a director to direct stunt performers in terms of the “emotive action” it is not appropriate for the director to give directions on the physical performing of the action.

65 Mr Woodward also said that it was wrong to designate the safety officer instead of the stunt coordinator to cue the guards. He explains that for a production the size of Mission Impossible II “the safety officer is responsible for the overall safety on set of the cast and crew and therefore cannot be a performer, director or anything else.”

66 Mr Woodward also said the scene where the plaintiff was injured should have been performed on the day of the accident in the same manner as it was performed on the following day. He said that it was wrong to move the stuntmen closer together into the trajectory of the motorcycle and to direct them not to look around at the oncoming bike. He also considers that it was wrong for Mr Burton to change the stunt without a rehearsal. He agreed with Mr Leva that there should have been a rehearsal after the guards were moved, and that placing the guards closer together made the stunt more dangerous.

Findings in relation to liability

67 Consideration of the relevant evidence leads me to the conclusion that the defendant breached the duty of care which he owed to the plaintiff and that breach materially contributed to his injury. I accept that in the ordinary course of a film set the second unit director’s responsibilities are confined to defining the scene he wishes to capture and it is for others, especially the stunt coordinator, to organise the set so that the second unit director’s requests can be met. The safety officer has responsibility for the safety of the sequence and should intervene if an unreasonable or unnecessary risk is being created.

68 However, on the day of the accident Mr Burton took control of the set to such an extent that the others on the site were required to accept that the plaintiff would be positioned so that, unless the cue was given at precisely the right time, it was highly likely that the plaintiff would be injured. The morning rehearsal very clearly indicated the potential for the motorcycle to get out of control, or at the very least diverge from its intended path. By requiring the plaintiff to stand closer to the midline of the bridge the defendant required him to stand where he was exposed to considerable danger. That danger was greatly enhanced by the command by Mr Burton that the stuntmen were to look away from the approaching motor cycle denying them an opportunity to see it approaching in their peripheral vision. This meant that the plaintiff’s safety depended entirely on the effective cue from Mr Page. When that cue was not given, or perhaps was given orally, the danger which Mr Burton’s instructions had created became a reality and the plaintiff was severely injured.

69 I am satisfied that whatever may have been the contracted responsibility of each person and their usual role on a film set it was Mr Burton who took charge of the set. It was his demands which created the danger. Furthermore, he was aware of the danger, he had witnessed the morning accident, knew that he was requiring the plaintiff to stand in the path of the motorcycle and that in that location the timing of the warning to the plaintiff to fall out of the way would have to be precise if injury was to be avoided. When the plaintiff raised concerns about his safety Mr Burton, already exasperated by the day’s events, effectively ignored them merely indicating that the others on site should work out those matters.

70 I accept that Mr Burton was not entirely to blame for the accident. However, his emphatic direction that the plaintiff be positioned at a point of very considerable danger materially contributed to his injuries. As the person with primary responsibility for the situation, having taken control of the detailed arrangements for the stunt, he owed a duty of care for the plaintiff’s safety. The accident which occurred was entirely foreseeable and as the events of the next day demonstrated the scene could have been shot without danger to the plaintiff. At the very least Mr Burton should have required a rehearsal so that cueing signals and the timing of movements in a safe manner could be practised. His determination to capture some footage from what would otherwise have been a wasted day made this impossible.

Malfunction of the motorbike

71 The defendant submitted that I should conclude that the accident was caused by a malfunctioning traveller which deviated from its intended path. As I have indicated the impression given by the filming of the event is that the bike may not have travelled down the centre of the bridge. However, whether this is an illusion or reflects the real situation I could not determine. In any event it seems to me to be of little relevance. The defendant instructed the plaintiff to stand at a point where the bike could hit him unless he fell out of the way before it arrived even without any malfunction of the traveller. The bike had deviated from its correct path in the morning and it was entirely foreseeable that this would happen again. The accident was relevantly caused by the instruction that the plaintiff should stand where he could be hit if he was not able to get out of the way before it arrived.

Contributory negligence

72 The defendant submitted that the plaintiff was guilty of contributory negligence. It was submitted that he should have been aware that he had been put in a position of danger which was exacerbated by the lack of a rehearsal and his inability to see the bike in his peripheral vision. It was submitted that in these circumstances he should have withdrawn his services and refuse to take part in the stunt.

73 I reject this submission. The plaintiff was employed as a stunt actor and required by the defendant to stand in a position of considerable danger. He was concerned about the danger and raised the matter with the defendant who brushed his concerns aside telling others to “work it out.” The plaintiff understood that notwithstanding the danger a cue from Mr Page would protect his safety. In these circumstances it is entirely unreal to expect the plaintiff, having been engaged for his first big break in the film industry and under the direction of a high level Hollywood director, to have walked off the job.

Damages

74 The plaintiff claims damages identified in a schedule under the following headings:

i. General damages
ii. Interest on general damages
iii. Past economic loss
iv. Interest on past economic loss
v. Loss of superannuation benefit
vi. Future loss of earnings
vii. Past out-of-pocket expenses
viii. Future out-of-pocket expenses
ix. Griffiths v Kerkemeyer
x. Domestic assistance
xi. Fox v Wood

i. General damages

75 The plaintiff claimed $250,000 for general damages. The defendant submitted that an appropriate sum was between the range of $80,000 to $100,000. The difference between the figure suggested by the plaintiff and the defendant is partly explained by the fact that the plaintiff alleges injuries to his right shoulder and arm as well as his neck and left arm were all caused by the accident.

76 The plaintiff was born on 5 October 1962 and was 36 years of age at the time of the accident. He is now 44 years of age. He gave evidence that before the accident he was a happy and outgoing person who was very active and enjoyed a variety of sports. He said that after the accident he could no longer enjoy these activities because of the pain and that this made him depressed.

77 The plaintiff was aware almost immediately following the impact that he had fractured bones. He said he was in intense pain and was given morphine injections within a short period. He lost a second tooth when he vomited at the hospital. He suffered a severely comminuted fracture of his right clavicle, a comminuted fracture of the radius and ulnar, facial lacerations, bruising, neck pain and lost two teeth. He was operated on to position his fragmented bones and allow healing. He required a bone graft from his right leg with the insertion of screws and plates. It was a delicate and difficult operation. The plaintiff spent about a week in hospital during which time he suffered severe pain. He returned later for further operations to remove plates and screws.

78 Although the plaintiff undertook a rigorous program of exercise and physiotherapy he was not able to recover his previous physical capacity. He has continued to suffer pain and the loss of his hoped for career as a stuntman has significantly affected his sense of well being. His years of training and hard work led to the significant opportunity presented by a role in Mission Impossible II. From the day of the accident his chosen career has been denied to him.

79 After the plaintiff left hospital he continued to carry his arm in a sling for about 3 months. The pain would wake him at night and for many weeks he was taking up to 12 Panadene Forte tablets per day. He was cared for by his girlfriend of four years after the accident but that relationship ended about a year later. The plaintiff said that his depression and irritability after the accident caused the break up.

80 From the time of the accident the plaintiff reported that he had a stiff neck. He gave evidence that about two years after the accident the pain in his neck increased followed by a tingling sensation down his left arm. The plaintiff was referred to Dr Cree, a spinal surgeon who performed an MRI scan and diagnosed cervical damage. There was an issue as to whether these problems on his left side were due to the accident.

81 The hospital records do not show an injury to the neck or left shoulder and arm at the time of the accident. Counsel for the defendant referred to a drawing of a human body in the hospital records which shows a line towards the neck and shoulder region accompanied by some unclear words. It was suggested that those words said “not tender”. The plaintiff gave evidence that although he did not experience pain or tingling down his left arm before June or July 2001 he did experience stiffness in the neck. He said that since the accident he always had a stiff neck and had told his medical carers about this problem. The plaintiff also recalls telling Dr Solomon, Dr Little and his physiotherapist Mr Neville shortly after the accident of a problem of veering to the left when walking.

82 He said that he did not complain to the Prince of Wales Hospital on 7 June 1999 of any pain in his left arm but only that he had a stiff neck. He said that he did not complain to Dr Solomon about his left arm on 9 June 1999 because “I was more concerned with the rest of my body at the time, it took over the pain I was having anywhere else, the shoulder and the forearm.” The plaintiff said that he complained to his doctors when the symptoms of his left arm became more severe in June or July 2001 which was the first time his pain had “progressed from pain in the neck to pain in the arm.”

83 In cross-examination the plaintiff maintained that he had a stiff neck from the time of the accident. He said that it was not his primary concern because it was overshadowed by the pain he was experiencing in his right shoulder and right arm.

84 The plaintiff was asked:

“Q. Had you had pain or a sensory change in your left arm or left hand whilst you were in hospital at Prince of Wales private hospital you would have told nurses or doctors about that would you not?
A. It depends what I was in the most pain from at the time. You tell ‘em what’s hurting at the time, what the main pain is at the time so they can either give you morphine or put a pack on you or do whatever, so you prioritise where the pain’s coming from and that’s what I would’ve done, that’s what I’ve always done.”

85 It was put to the plaintiff that he had not experienced neck pain immediately after the accident because the hospital examination notes had recorded “full ROMC spine” which is said to mean full range of movement. The plaintiff did not recall an examination of his spine at the hospital.

86 Counsel for the defendant also submitted that the plaintiff’s assertion that he suffered left arm pain from the date of the accident is inconsistent with the report of Dr Darveniza, neurologist who examined the plaintiff on 18 December 2006 and reported that he had become aware of his neck and left arm pain after the injuries to his right side had improved. The plaintiff was cross examined about this:

“Q. As the injuries to his first right forequarter improved with time he became aware of persistent neck pain radiating down the outside of the left arm to the hand and fingers.” Do you remember saying that to Dr Darvenzia?
A. I don’t remember but it’s not unreasonable.
Q. Certainly that’s inconsistent with you suffering left arm symptoms from the date of the accident isn’t it?
A. It’s not – it’s not from having it been stiff. Now stiff is stiff. Stiff is stiff neck, stiff body. You can imagine I got hit by this motorcycle. My entire body was to the point it was not my body anymore, right. The shoulder pain, the forearm pain, that was to the forefront. The rest of the body felt like I was in someone else’s body and it was foreign to me. I was stiff, I was like I said I was like I was in somebody else’s body. What was most concerning one day may be not as concerning the next day because something else felt wrong.

Medical evidence

87 There was no evidence that there was a direct impact injury on the spine at the time of the accident. A number of medical reports were tendered in relation to the plaintiff’s neck and left arm problems. Drs Solomon, Bowers, Cree, Little, Reneke, Scarf and Pillemer all agreed that the accident caused the plaintiff’s cervical problems. Dr Spira was the only doctor who thought otherwise. His opinion was that he would have expected the plaintiff to have made complaints about his neck and left arm problems earlier than he did.

Dr Solomon

88 Dr Solomon is an orthopaedic surgeon who treated the plaintiff after the accident and performed surgery on his right shoulder and clavicle. He recorded bruising around the plaintiff’s clavicle but did not record any complaints by the plaintiff about his left arm and neck until 28 February 2003 where he noted that the plaintiff had been experiencing some left arm pain. His opinion was that the plaintiff “has signs of a cervical radiculopathy causing left-sided symptoms, which, I believe has a direct relationship to the injury as outlined by the reports from the neurosurgeons”.

Dr Bowers

89 The plaintiff was examined by Dr Bowers, a specialist rehabilitation physician on 1 March 2000. Neck or left arm pain was not mentioned on this occasion. Dr Bowers qualified his opinion in his report of 19 January 2007 where he said:

“Mr Connolly did not complain significantly of neck pain when I saw him in March 2000. It is however possible that he sustained disc tears in the subject incident which gradually deteriorated with the passage of time to now cause more obvious disc prolapses with a left C6 radiculopathy as evidenced on electrical studies and MRI scanning.”

90 In a follow up opinion provided on 16 May 2007 he concluded that:

“In summary of all this information leads me to conclude that Mr Connolly did in fact injure discs in the cervical spine in the subject incident. Complaints from this were overshadowed by the more severe pain in the right shoulder when I saw him in March 2000.”

Dr Cree

91 Dr Cree recorded symptoms of neck pain in September 2001. In his report of 24 January 2002, he says:

“On the basis of the history, it would seem that his pathology does relate to the incident in 1999. It is interesting to note however that from the triage notes and the subsequent reports from Dr Solomon, there is no mention of neck pain or left cervical radicular pain. Nevertheless, the mechanism of injury is consistent and certainly such symptoms might be given less prominence in the setting of multiple fractures requiring urgent attention. Therefore, it would be my opinion that Mr Connolly’s employment with Paramount Pictures has been a substantial contributing factor in the causation of his cervical radiculopathy.”

92 In his report of 14 August 2006, Dr Cree confirms:

“… that whilst the initial triage notes and early orthopaedic reports do not specifically mention the neck pain or left cervical radiculopathy it is not unrealistic to assume that in the setting of more pressing fractures about the right upper extremity that this may not have immediately come to attention. Certainly Mr Connolly’s employment with Paramount Pictures has been an essential contributing factor to the causation of his cervical radiculopathy.”

Dr Reyneke, Dr Little, Dr Millar, Dr Scarf and Dr Pillemer

93 Dr Reyneke, a neurologist examined the plaintiff on 12 September 2001 regarding pain and numbness affecting the left shoulder and left hand. In her report of 5 December 2001 she says:

“In my opinion the accident should be considered to have a significant contribution to his current condition. Disc generation commonly occurs as part of aging but is greatly influenced by mechanical stresses or injury. The changes seen…would seem to be accelerated for his age”

94 Dr Little, a neurosurgeon saw the plaintiff on 27 November 2001 and recorded complaints of neck and left arm pain.

95 Dr Millar, a general practitioner who saw the plaintiff on 20 March 2002 says in his report of 14 June 2006:

“He is suffering from cervical spine damage which is due to his accident. There are some degenerative changes in the cervical spine which have been aggravated by the accident.”

96 Dr Scarf, a general surgeon who examined the plaintiff on 2 April 2002 at the defendant’s request says “the physical examination reveals a stiff neck.” He concluded that “aggravation of pre-existing degenerative changes in his neck has also occurred as a direct consequence of the injury.”

97 Dr Pillemer, the defendant’s orthopaedic surgeon examined the plaintiff on 5 March 2005. His view is that, “Mr Connolly’s ongoing symptoms in his right upper limb, his neck and his left upper limb are due to his injury in June 1999.”

Dr Spira

98 Dr Spira, the defendant’s neurologist first examined the plaintiff on 1 December 2006. He also examined the plaintiff’s medical history and the reports of his medical carers. Dr Spira says that if the condition had existed before 2001 he would have expected the plaintiff to have complained about his neck and left arm pain before the middle of 2001. He stated that:

“Overall it seems the contemporaneous notes do not mention cervical discomfort and it is only post-hoc reconstruction by Mr Conolly which attempts to link the neck symptoms with an onset in 2001 with the accident of 1999. I believe that had Mr Conolly suffered a significant cervical injury in the accident of June 1999 he would have had active symptoms from that time and would have sought therapy for that component earlier than August 2001. At the very least he would have mentioned the complaint to at least one of his medical carers. The delay in onset of symptoms of over two years essentially breaks the nexus between the accident of June 1999 and Mr Connolly’s cervical symptoms.”

Counsel’s submissions

99 Counsel for the defendant submitted that the plaintiff’s left side problems were not related to the accident because, although Dr Solomon had given precise attention to the plaintiff and his injuries, he did not detect left side problems until some time after the accident. It was also suggested that the opinion of Dr Bowers, contained in his report of 1 March 2000, should be regarded as weak evidence because contrary to the hospital records which revealed no actual injury to the neck, Dr Bowers had found that the investigations performed at Prince of Wales Hospital demonstrated soft tissue injury to the neck.

100 The defendant relies on the evidence of Dr Spira who was primarily concerned with whether there was an observable impact injury at the time of the accident or some direct relationship between the impact and later symptoms. However, the other doctors accepted that the initial impact may not have given rise to symptoms which immediately materialised but rather put stressors on the spine which leading to an accelerated deterioration.

101 I am satisfied to the relevant standard that the plaintiff’s problems with his neck and left side were as a result of the accident. No other cause can be identified. Although natural deterioration was a possibility I accept the evidence of the doctors who believe that the severity of the collision with the motorcycle was the cause of the deterioration. In my view the accident was the cause of the problems in the plaintiff’s left arm.

102 There is no doubt the plaintiff suffered severe and painful injuries. Apart from his physical problems he suffered the psychological impact from the loss of his chosen occupation. In my opinion an appropriate award of general damages is the sum of $140,000. The plaintiff would have experienced the greatest pain and endured frequent hospitalisation and rehabilitation treatments during the years immediately following the accident. Regrettably as I discuss below, his life will almost certainly be shortened by his cancer. In these circumstances, I attribute $120,000 of general damages to the past and $20,000 to the future.

ii. Interest on general damages

103 The plaintiff is entitled to interest on this amount. It was submitted by the plaintiff that the figure of 4% per annum as adopted by the High Court in MPB(SA) Pty Ltd v Gogic (1991) 71 CLR 657 at 663 was an appropriate uniform rate to be applied to the whole of the period between the date of injury and trial. In that case, the High Court considered that, although “somewhat arbitrary”, the interest rate of 4% was “more likely to achieve fair and reasonable compensation for plaintiffs than the use of the real rate of interest figure”. The defendant suggests that interest should be calculated by taking the amount allowed x 0.5 x 2% x 8.33 years.

104 The defendant’s approach is generally correct. Interest must be calculated over the period. Because of the manner in which I have apportioned past and future general damages the defendant’s approach must also be modified. I propose to allow interest on past general damages ($120,000) at the rate of 2% per annum for 8.52 years. The parties are to agree the appropriate calculation.

iii. Past economic loss

105 The plaintiff claims $664,907 (after tax) for past economic loss. Alternative proposals were put on behalf of the plaintiff, and on behalf of the defendant as to the appropriate method of calculating the plaintiff’s past loss. The plaintiff relied on the reports of Mr Ivey, chartered accountant and business analyst. It was submitted by counsel for the plaintiff that the appropriate method was to consider the earnings of three stuntmen considered comparable to the plaintiff, they being Mr Paul Doyle (also known as Paul Franklin), Mr Brett Praed and Mr Nash Edgerton. The plaintiff’s past economic loss claim was based on the average net earnings (including residuals) of these men for the relevant periods of time.

106 The defendant took a different approach. It was submitted that the calculation should be made by taking the plaintiff’s taxable income for the year ending 30 June 1999, being $46,788 per anum ($899.79 per week) and deducting one third for tax. This would leave $600 net per week or $249,600 for 8 years to be further reduced by 50% for residual earning capacity. That would leave $124,800 not including reductions for other relevant industry considerations.

107 The assessment of the lost earning capacity and the chance of a plaintiff achieving an identified level of earnings is notoriously difficult. The court is required to do the best it can to achieve a fair result: State of New South Wales v Moss (2000) 54 NSWLR 536. In Norris v Blake [No 2] (1997) 41 NSWLR 49 the plaintiff’s earning capacity as an actor was completely destroyed. Although he was young at the time of his injury, he had already established himself as an actor with a promising future. The issue at trial and on appeal was how the value of his lost earning capacity was to be assessed given that his injury had occurred at an early stage of his career where his potential had not translated into concrete earnings.

108 As in Norris, the plaintiff’s earning capacity in the present case was interrupted before a pattern of actual earning could be established. It is not possible to point to the income which his earning capacity was yielding and use that as the basis to calculate what his earning capacity would have been. The Court of Appeal in Norris explained (at [73]) that the proper approach to compensation for the loss of earning capacity in this situation would be to assess what the plaintiff would have most likely earned during the rest of his working life, and make an adjustment for contingencies which may include the possibility that the plaintiff might have done far better.

109 I am satisfied, having regard to the medical evidence that because of the accident the plaintiff lost all capacity to work as a stuntman. But for his supervening illness, an issue to which I will return, I am satisfied that but for the accident the plaintiff would have been able to work as a stuntman for an indefinite period and would, as happens with many people in the industry have progressed to be a stunt coordinator. However, progress beyond performing as a stunt actor would have been unlikely prior to this trial. I consider the plaintiff’s lost earning capacity in detail below.

Residual earning capacity

110 The accident not only destroyed the plaintiff’s capacity to work as a stunt performer, it seriously affected his capacity for any permanent employment. The plaintiff submitted that having regard to his age, geographical location, injuries and disabilities, he was and is unemployable and has had no residual earning capacity since the accident. The evidence indicates that the plaintiff engaged in significant attempts to rehabilitate his body with a view to returning to his pre-injury employment. He was not able to do this. He has made other efforts to obtain employment and has undertaken courses to try and retrain himself to work in the film industry. The plaintiff’s attempts to obtain employment which was compatible with his physical injuries have failed. I accept his evidence that he has been unable to successfully obtain employment as a sales person, property manager, real estate salesman, safety inspector or valuer. I accept the plaintiff when he says that his injuries have limited his capacity to drive and if he sits still for any length of time receives severe pain in his neck and back.

111 The plaintiff was able to obtain a job as an administration assistant and was employed for 7 months. The hours of the job varied. The plaintiff says that having a job made him feel worthwhile although it was physically hard for him. He was unable to sit at a computer for more than 30 minutes at a time and would suffer pain in his neck, right shoulder and right forearm. He was only able to work if he took up to 10 Panadene Forte per day. Ultimately he became intolerant of the pain and was unable to continue his employment.

112 Because of the plaintiff’s physical strength and capacity it has been understandably difficult for him to accept the severe limitations which his accident has imposed. I am satisfied that he has made genuine efforts to gain employment but in the ultimate they proved unsuccessful. In my opinion the accident caused him to entirely lose his capacity for gainful employment.

Stunt residuals

113 When considering his lost earning capacity it is important to have regard to the somewhat unusual remuneration pattern in the “stunt business.” In addition to his earnings for appearing in front of the camera, the plaintiff would have received residual payments from Mission Impossible II and other movies in which he would probably have appeared.

114 According to the Ivey report residuals are generally paid to performers based on a percentage of the producer’s profits from worldwide sales for ancillary rights. There was a clause in the plaintiff’s contract for Mission Impossible II, which provides for the payment of residuals.

115 Mr Norris who has considerable knowledge of stunt performers (I discuss his evidence in greater detail below) said in his affidavit that the plaintiff would have been on a similar residual structure to Mr Doyle and Mr Praed. Mr Norris’s evidence was that a stunt performer often makes more money in ancillary rights flowing from DVD sales than they make from the film being shown in cinemas. He said that the residuals a stunt performer receives for working on an Australian production would be less than for work on international movies. According to Mr Norris, “A conservative estimate for residuals paid in a year to a stunt performer is between $20,000 and $50,000.”

183 As I indicated, the parties are agreed that I should receive the evidence and hear argument in relation to the plaintiff's application for an order for indemnity costs having regard to offers which were exchanged in correspondence which is now in evidence. The plaintiff in that correspondence, in a letter dated 5 October 2007, suggested, through his solicitors, that his claim should be assessed at $1,370,548. Notwithstanding that assessment the plaintiff offered to settle at a sum of $990,000. The offer was left open for two days. It was rejected by the defendant, who made a counter offer in a substantially lesser sum.

184 As I have indicated, the offer was made after the evidence and submissions in the case had closed. However, in the course of preparing my reasons for judgment it became plain to me that there were at least two issues turning upon the entitlement to further residual payments upon which I did not have satisfactory submissions and required further assistance from the parties. That assistance was obtained and I was able to provide my reasons in the manner which I have previously indicated. It seems to me that, at the point at which an offer was made, complexities in the proceedings remained, and those complexities needed the assistance of further submissions and, ultimately, resolution by me. The plaintiff, not having made an offer pursuant to the rules, I must determine whether or not it was reasonable for the defendant to have rejected the offer in the circumstances of this case. The relevant principles were discussed by the Court of Appeal in Dunstan v Rickwood (No 2), [2007] NSWCA 266.

185 Having regard to the history of this matter and its inherent complexities I am not persuaded that it was unreasonable for the defendant to have rejected the offer that was made. The evidence in relation to liability was complex and required considerable analysis and thought before I reached a conclusion. Furthermore, there were a number of significant issues in relation to damages which arose in this case for the first time, as far as I am aware. In my opinion, those complexities were such that in the circumstances I am not persuaded that an order other than order for party/party costs should be made.

186 Accordingly, if it be appropriate, I would now reinstate the orders which I made on Friday in relation to costs, which was that the defendant is to pay the plaintiff's costs. It may be that after probate has been granted, or some other step has been taken, it may be necessary, Mr Conolly, for you to approach me to confirm that order but I suspect that the defendants, in the circumstances, would abide by what I just said.

187 BRAHAM: In fact it occurred to me that, perhaps, your Honour would vacate the orders your Honour made earlier today vacating the orders on Friday.

188 HIS HONOUR: That's what I've just done. In so far as I have the power to do it that's what I have just done. If there was any issue in so far as the defendant was concerned you will, no doubt, talk to Mr Conolly and, if needs be, approach me at some later date, but I would assume the defendant would not see that as necessary.

189 BRAHAM: I would make the same assumption, your Honour.

190 HIS HONOUR: There's nothing further I need to do, is there?

191 BRAHAM: Yes there is, your Honour; orders on the cross-claims. I have signed consent orders from the defendant and cross-defendants disposing of the cross-claims.

192 HIS HONOUR: I can just make those orders, can I?

193 BRAHAM: Yes. They don't involve the plaintiff.

194 HIS HONOUR: Yes. There were various cross-claims filed in the matter, the detail of which it was unnecessary for me to examine. However, I understand that the parties have been able to agree to those cross-claims. Accordingly, I make orders on the cross-claims in accordance with the consent orders, which I have initialled and dated. A copy of these orders is attached.

195 BRAHAM: Yes, if your Honour pleases.

**********

SHORT MINUTES OF ORDER

ORDERS

1. Verdict and judgment for the plaintiff in the sum of $1,018,253.20.

2. The defendant to pay the plaintiff’s costs.

3. If any party wishes to make any application for a special costs order, then they should file any application within 7 days.

CONSENT ORDERS


BY CONSENT and without admission of liability the court makes the following orders:

1. Verdict and judgment for the cross claimant on the first cross claim in the sum of $585,495.59, such sum being 57.5% of any verdict and judgment entered in favour of the plaintiff against the cross claimant on the first cross claim.
2. In the event the cross claimant is ordered to pay any part of the plaintiff’s costs of the proceedings, the cross defendant to the first cross claim is to contribute 57.5% of the amount of any such costs.
3. Verdict and judgment for the cross claimant on the second cross claim in the sum of $152,737.98, such sum being 15% of any verdict and judgment entered in favour of the plaintiff against the cross claimant on the second cross claim.
4. In the event the cross claimant is ordered to pay any part of the plaintiff’s costs of the proceedings, the cross defendant to the second cross claim is to contribute 15% of the amount of any such costs.
5. The third cross claim is dismissed.
6. The fourth cross claim is dismissed.
7. Each party to the first, second, third and fourth cross claims is to bear his or its own costs of the cross claims.
8. The cross claimant to the first and second cross claims is authorised to deduct from its contribution toward payment of any judgment to the plaintiff such monies as are authorised, required or justified by statute or otherwise agreed.