Copping v State of South Australia & Lightbody No. DCCIV-94-41353 Judgment No. D3632
[1997] SADC 3632
•20 June 1997
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Robertson
Hearing
04/02/97 to 06/02/97.
Catchwords
Liability - personal injury - plaintiff 9 year old boy at the time of the accident - plaintiff suffered eye injury as a result of being struck by a stone in school grounds during recess - stone thrown by student aged between 16 and 17 years - plaintiff amongst a number of younger students who commenced throwing stones and bark at group of older students - whether first and second defendants liable for damages suffered by plaintiff - duty of care - whether adequate supervision provided by the school - breach of duty - contributory negligence - defendants liable for 85% of damages. INSURANCE Insurance policy - consideration of insurance policy exclusion clauses "deliberate or intentional acts" and "unlawful act" - whether clauses exclude third defendant from liability under the policy - meaning of "deliberate and intentional act" and "unlawful act" considered - third defendant contravened s51 of the Summary Offences Act - declaration refused. Wrongs Act, 1936, s27A; Criminal Law Consolidation Act, 1953, s39; Summary Offences Act, 1953, s7 and s51, referred to.
Materials Considered
• Williams v Eady (1893) 10 TLR 41;
• Edgecock v Minister for Child Welfare (1971) 1 NSWLR 751;
• March v E &; M H Stramere Pty Ltd (1990-1991) 171 CLR 507;
• J N Taylor Holdings Ltd (In Liquidation) &; J N Taylor Finance Pty Ltd (In Liquidation) v Alan Bond (1993) 59 SASR 432;
• Clayton v Mutual Community General Insurance Pty Ltd (1995) 64 SASR 353;
• R v Venna (1976) 1 QB 421;
• Daire v Stone (1991) 56 SASR 90;
• Stone v Ford (1993) 59 SASR 444;
• Pennington v Norris (1956-1957) 96 CLR 10, referred to.
• McHale v Watson (1966) 115 CLR 199;
• H v Pennell &; The State of S A (1987) 46 SASR 158;
• The Council of The Shire of Wyong v Shirt (1979-1980) 146 CLR 40;
• The Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258;
• Richards v Victoria (1969) VR 136;
• Geyer v Downs (1976-1977) 138 CLR;
• Carmarthenshire County Council v Lewis (1955) AC 549;
• Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1;
• MacPherson v Beath (1974) 12 SASR 177;
• Anderson v Fitzgerald (1853) 4 HLC 484;
• Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14;
• Rowe v Manevski (1994) 62 SASR 468;
• Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492;
• Barisic v Devenport (1978) 2 NSWLR 111;
• Commissioner of Railways v Ruprecht (1978-1979) 142 CLR 563, applied.
• Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121;
• Re United Insurance Co Ltd &; Absalom (1932) VLR 494, considered.
Representation
Plaintiff Ben Layton COPPING an infant by his next friend Susan Mary COPPING:
Counsel: Mr G. Holland - Solicitors: WALLACE, WESTLEY &; CO.
Defendant THE STATE OF SOUTH AUSTRALIA:
Counsel: Mr J. Telfer - Solicitors: CROWN SOLICITOR
Defendant Glen LIGHTBODY:
In Person
Defendant MUTUAL COMMUNITY GENERAL INSURANCE:
Counsel: Mr D. Greenwell - Solicitors: KELLY &; CO.
DCCIV-94-41353
Judgment No. D3632
20 June 1997
(Civil)
COPPING v THE STATE OF SOUTH AUSTRALIA & LIGHTBODY
Judge Robertson
Civil
The plaintiff brings this action claiming damages against the first two defendants for injuries suffered by him as a result of being struck in the left eye by a stone during the morning recess period at the Lucindale Area School ("the Lucindale School") on 20 August 1993.The plaintiff alleges that Glen Lightbody, the Second Defendant, ("Glen Lightbody") threw the stone which struck his eye.The plaintiff alleges that the injury to his left eye was caused by the negligence of Glen Lightbody and the First Defendant, the State of South Australia ("South Australia").It was not contested that the school was operated by the Education Department of South Australia.South Australia and Glen Lightbody have denied liability.They each allege that the plaintiff was guilty of contributory negligence.Neither of them seek contribution against each other.The plaintiff also seeks a declaration that the Third Defendant, Mutual Community General Insurance Pty Ltd ("Mutual Community") is obliged to indemnify Glen Lightbody by virtue of a contract insurance which was on foot at the time of the accident for any liability sustained by Glen Lightbody in consequence of a judgment being entered against him in these proceedings.With respect to the plaintiff's claim against Glen Lightbody and South Australia the plaintiff claims a declaratory judgment and an interim award of damages pursuant to Section 38 of the District Court Act 1991, as amended.As a result, the hearing of the action was confined, as against those defendants, to the issue of liability.It is alleged that the plaintiff has suffered a severe injury to his left eye with serious consequences.
At the time of the accident the plaintiff was 9 years of age.He was a student at the Lucindale School which was situated at Lucindale in the south east of South Australia.The Lucindale School was operated by the Education Department of South Australia.The school catered for students of varying ages on the same campus.In other words, the Junior Primary School, the Primary School and the Secondary School were all conducted on the same campus. Glen Lightbody was aged 16 or 17 years at the time of the accident.He was a secondary school student at the Lucindale School.
Before I come to consider the evidence I should comment on the witnesses who gave evidence.The plaintiff did not give evidence.However, the plaintiff called Tammy Kuhndt, Tammie Ewer and Ben Delfabro.They were all senior students at the school and all witnessed the accident.Glen Lightbody also gave evidence.South Australia called no evidence.It was apparent that each of the witnesses who gave evidence at times struggled to recall the events which took place with any degree of specificity.This is understandable because of the time lapse between the occurrence of the accident and the witnesses giving their evidence.Ben Delfabro commented that he only had "glimpses" of the events of that day.Tammie Ewer accepted that she had only a "fairly hazy recollection" of the incident.However, in my opinion, although there were problems with memory at various times each witness, including Glen Lightbody, gave their evidence honestly using their best endeavours to recall the accident.Having observed each of the witnesses during the giving of their evidence and having considered the evidence provided by each witness I have formed the view that Glen Lightbody was the most reliable.As I have said, I accept all the witnesses, including Glen Lightbody as being truthful.However, if there is any conflict between Glen Lightbody and the other witnesses then I prefer his evidence.Having said that, I should indicate that there was very little dispute between the witnesses regarding the circumstances of the accident.
The accident occurred during the morning recess period.Shortly after the recess period began Glen Lightbody, Tammy Kuhndt, Tammie Ewer and Ben Delfabro sat down on the lawn in front of the Junior Primary School classroom building. They would regularly sit down on this lawn during recess periods and lunch periods and talk.The area in front of the Junior Primary School building, including the lawn area, was regularly used by students in the plaintiff's age group during recess and lunch periods.These young students would indulge in a variety of games and other activities in that area.There were pat-a-tennis courts nearby.Immediately adjacent to the Junior Primary building were a set of toilets.There was a further toilet building a short distance from and opposite the toilet building adjacent to the Junior School classroom building. Beyond the two toilet buildings was the school oval which was also used by students for recreational purposes during recess and lunch periods.Near the Junior Primary School building were administration offices.A short distance from the administration offices were other Secondary School classrooms.
A short time after Tammy Kuhndt, Tammie Ewer, Ben Delfabro and Glen Lightbody sat down on the lawn area their attention was attracted to a group of young boys who were throwing pieces of bark and stones in their direction. Photographs admitted into evidence indicate the positions of the four older students relative to where the younger students were congregating for the purpose of throwing the objects.There is no evidence of the distance. However, as much as photographs can assist it appears to be a relatively short distance.Estimates by witnesses called by the plaintiff regarding the number of boys engaged in throwing the objects varied from five up to ten.It would seem that the source of the supply of bark and stones was a garden bed immediately adjacent to the Junior Primary building and on the other side of a pathway which divided the Junior Primary building and the lawn.
The younger students continued to throw pieces of bark and stones in the direction of the four older students for some time.Tammy Kuhndt and Tammie Ewer could not recall whether any of the objects thrown by the young boys hit any of the older students.However, Ben Delfabro said at one point during his evidence that he believed that some of the group were hit by pieces of bark. This is to be contrasted with earlier evidence given by him that the objects were landing around the group and not striking any of them.In view of the inconsistent evidence of Ben Delfabro and the fact that none of the others can recall being struck by any of the objects I am not prepared to find that any of the objects struck any of the older students.
The evidence of the witnesses called by the plaintiff indicate that during the course of the throwing of the objects Glen Lightbody and probably Ben Delfabro asked the younger students to cease their throwing.Unfortunately, the younger students continued to throw the bark and stones.After some time had elapsed Glen Lightbody picked up a small stone from the lawn area and threw it in the direction of the children.He threw it with a side ways motion.The plaintiff immediately cried out and clutched his eye.He began crying.Glen Lightbody and the other older students went to his aid.Thereafter, Glen Lightbody escorted the plaintiff to the school office.Ben Delfabro stated that he saw the stone thrown by Glen Lightbody strike the plaintiff.
As I indicated earlier, Glen Lightbody gave evidence.His evidence was in many respects similar to the evidence of the other three older students.He said that whilst the four older students were sitting on the lawn area in front of the Junior Primary classroom building a group of younger students commenced throwing stones and pieces of bark in their direction.This took place during the morning recess period.Glen Lightbody said that the group had sat down on the lawn shortly after the recess period commenced.He said that his attention was drawn to the young boys as a result of the stones and pieces of bark landing in their vicinity.He said that the young students continued to direct the stones and pieces of bark in the direction of the group for some time.He also said that during this time he and probably Ben Delfabro requested the younger students to desist from throwing the objects.The younger students ignored the requests and persisted with the activity.He could not remember if any of the objects struck any member of the group.He said that he found the continual throwing of the objects towards the group annoying.Glen Lightbody said that the throwing of the pieces of bark and stones continued for about five to ten minutes.He said that eventually he picked up a small stone the size of a ten cent piece and threw it towards the general direction where the younger students were gathered.He said it was a side arm throw.The stone was not directed specifically at any student.He said there was no intention on his part to hit any of the young boys in the group.He said the purpose of throwing the stone was to indicate to them that they should go away.He said he did not think about whether there was a risk that he might injure one of the young boys at the time he threw the stone.Glen Lightbody said that he did not observe the flight of the stone.However, shortly after he released the stone he heard the plaintiff cry out and he saw the plaintiff holding his eye.He said that he and the older students immediately went to the plaintiff's aid. Shortly after he said he took the injured plaintiff to the school office.
There were some differences between the various witnesses on a number of relevant factors.Estimates varied regarding the length of the recess period. Glen Lightbody could not recall the time allowed for recess.Tammy Kuhndt said it was twenty minutes.Tammie Ewer thought it was a half an hour.Ben Delfabro thought it was about fifteen minutes.Evidence also differed regarding the time period from when the young boys commenced to throw the stones and pieces of bark until the plaintiff was struck with the stone.Both Glen Lightbody and Tammie Ewer said it was about five to ten minutes.Tammy Kuhndt said two minutes and Ben Delfabro estimated four to five minutes. Estimates regarding the number of young boys engaged in the throwing activity varied from five to ten boys.I find that there were at least five young boys and no more than ten engaged in throwing stones and pieces of bark. Furthermore, I find that they were engaged in that activity for between five and ten minutes before the plaintiff was struck in the eye by the stone.
There was one matter of contention which arose between the evidence of Ben Delfabro and the other witnesses.Ben Delfabro said that he also threw a couple of stones in the direction of the young students.None of the other witnesses, including Glen Lightbody, recalled Ben Delfabro throwing any stones in the direction of the younger students.As the only direct evidence on the subject was that of Ben Delfabro I find that he did throw a couple of stones. He also said that the stones he threw hit one or more of the young boys in the body.However, there is no evidence that Glen Lightbody, prior to throwing the stone which struck the plaintiff, saw Ben Delfabro throw any stones or that he saw any stone thrown by Ben Delfabro hit any of the young students on the body.
I should also mention that at one point in his evidence Ben Delfabro said that he witnessed Glen Lightbody throw other stones before he threw the one which hit the plaintiff.Glen Lightbody said that he threw only one stone.Tammy Kuhndt said she only observed Glen Lightbody throw one stone.Tammie Ewer gave evidence of Glen Lightbody only throwing one object.She did not say whether the object was a stone.Ben Delfabro was recalled for further cross-examination.In his further cross-examination he resiled from his earlier evidence and accepted that Glen Lightbody had thrown only one stone. In any event, as I said earlier, I prefer the evidence of Glen Lightbody where it conflicts with any evidence of the other witnesses.Accordingly, I find that Glen Lightbody threw only one stone and that stone struck the plaintiff in the left eye.
In the context of the issues arising from the claim by the plaintiff against South Australia, the time during which the younger students were engaged in throwing stones and pieces of bark is relevant.I have already considered the evidence dealing with that factor.Furthermore, evidence regarding the presence of staff of the school in the area of the accident or in the near vicinity during the recess period on that day is also of primary importance. The evidence of each of the witnesses including Glen Lightbody is that they did not observe any teacher in the area where the accident occurred or in the near vicinity during the recess period when the plaintiff was injured.Tammy Kuhndt said there were usually two to three teachers to cover the school during recess periods.She saw none on yard duty on that day.Tammie Ewer indicated that sometimes she observed the teachers on yard duty during recess and lunch periods prior to this day.However, she did not see during the recess period when the plaintiff was injured.Both Ben Delfabro and Glen Lightbody gave evidence of observing teachers on yard duty during recess periods prior to the day of the accident.They also said that they did not see any teacher in the area of the accident during the recess period in which the plaintiff was injured.As I indicated earlier, South Australia did not call any evidence so the evidence given by the witnesses called by the plaintiff and the evidence of Glen Lightbody stands alone.In view of the overwhelming weight of evidence I find that there was no teacher present during the recess period in the area where the plaintiff suffered his injury or in the near vicinity.
Whilst I have, in the course of these reasons, made a number of findings, it is appropriate for ease of convenience I summarise some of those findings central to the issues to be determined and they are:-
ù during the morning recess period on 20 August 1993 a number of young male students at the Lucindale School commenced to throw stones and pieces of bark at a group of four senior students sitting on a lawn adjacent to the Junior Primary School classroom building
ù the plaintiff was one of the young students who were engaged in throwing the stones
ù the plaintiff was nine years of age at the time
ù Glen Lightbody was one of the four students sitting on the lawn when the young male students commenced to throw the objects
ù at that time Glen Lightbody was either sixteen or seventeen years of age
ù the area where the young boys were throwing the pieces of bark and stones was regularly frequented by students about the plaintiff's age during recess periods and lunch periods
ù the area was also frequented by students of other ages
ù games and other recreational activities were undertaken in the area during recess and lunch periods
ù near the area where the accident took place were two toilet buildings
ù immediately beyond the toilet buildings was the school oval on which students engaged in recreational activities during recess and lunch periods
ù during the recess period Glen Lightbody threw a stone which struck the plaintiff in the left eye
ù the young boys had continued to throw stones and pieces of bark at the senior students for between five and ten minutes before the plaintiff was struck in the eye
ù the stone was about the size of a ten cent piece and was picked up by Glen Lightbody from the lawn in the vicinity where he was sitting
ù Glen Lightbody threw the stone with a sideways motion in the general direction of where the young boys were congregated
ù Glen Lightbody did not aim his throw at any of the boys and had no intention of striking any of the boys with the stone when he threw it
ù at the time of throwing the stone Glen Lightbody did not think about the risk of injury to any boy when he threw the stone
ù during the recess period there was no teacher in the area where the accident occurred or in the near vicinity in a supervising capacity
ù that prior to this day teachers had been on yard duty during recess periods.
I now turn to the first question to be determined and that is whether Glen Lightbody is liable in damages for the injury suffered by the plaintiff.The plaintiff alleges that Glen Lightbody is guilty of negligence which resulted in the injury to his eye.The issue involves a determination of whether Glen Lightbody owed a duty of a care to the plaintiff, and if he did so then whether his conduct was in breach of that duty of care.In considering whether a 16 or 17 year old youth is negligent, the standard of care which the law demands is that expected of an ordinary person of the same age, intelligence and experience.That is the standard of care upon which Glen Lightbody is to be judged (see: McHale v Watson (1966) 115 CLR 199).As Olsson J said in H v Pennell & The State of South Australia (1987) 46 SASR 158 at 177:-
"What is essentially in issue in practical terms is the likely capacity of such a person to appreciate the existence of a relevant risk and the extent to which that person has displayed the judgment and behaviour appropriate to one with like general attributes.In the final analysis, the practical application of such a test involves considerations of fact and degree ... "
In determining whether a duty of care is owed it is necessary to first consider whether there is a relationship of proximity such that the reasonable man would foresee that his conduct may injure the plaintiff (see: The Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40 per Mason J at 44).It is not necessary to actually foresee that the conduct would involve a risk of injury specifically to the plaintiff.All that is necessary is that it was reasonably foreseeable that the conduct would involve a risk of injury to a class of persons including the plaintiff (see: Wyong per Mason J at 47).As White J explained in the case of H at page 161:-
"It is not necessary that the injury actually inflicted on the plaintiff should be foreseeable so long as the infliction of some injury of the same kind is readily foreseeable ... to any member of the endangered class ...
Foreseeability is relevant at two different stages of the inquiry whether a defendant was guilty of negligence.The first stage is when inquiring whether any duty of care was owed by the defendant to the plaintiff; the second stage is when inquiring whether the defendant was in breach of that duty of care.At the second stage, the likelihood of the risk occurring becomes more relevant."
In the context of this case (as it did in the case of H) the same evidence is both relevant as to the existence of the duty of care and the breach thereof. In my opinion, the evidence discloses that it was reasonably foreseeable on the part of Glen Lightbody that if he threw the stone in the general direction where the young students were gathered that the stone might strike one of them and cause injury.Having reached that conclusion it follows that Glen Lightbody owed a duty of care to the plaintiff.Furthermore, in my view, Glen Lightbody was in breach of that duty of care in throwing the stone.Applying the standard of care test laid down in McHale it was plainly foreseeable, as I have just said, that such an act could cause an injury to one of the young students.In throwing the stone Glen Lightbody was in breach of his duty of care to the plaintiff and is therefore liable for the damages suffered by the plaintiff as a result of the injury to his left eye.
I now come to consider the question of whether South Australia is liable for the damages suffered by the plaintiff.In essence the plaintiff's claim against South Australia is that the school was in breach of its duty of care in failing to have a teacher supervise the activities of the students during the recess period in the area adjacent to the Junior Primary School classroom building where the accident happened.In The Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258 Mason J at 269 made the following observation in relation to the duty of care a school owes to a student:-
"The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability.A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance."
A widely accepted formulation of the duty is that expressed by Winneke C.J. in Richards v Victoria (1969) VR 136 at p 141:-
"The duty of care owed by [the teacher] required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to [the pupil].This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect [the student] against risks of injury which ex hypothesi [the teacher] should reasonably have foreseen."
(See also: Geyer v Downs (1976-1977) 138 CLR 191 per Murphy and Aickin JJ at 102.
There can be no doubt that the Lucindale School owed the plaintiff a duty of care in terms of that expressed in Introvigne and Richards.The question is whether the Lucindale School was in breach of that duty of care.As I stated earlier in these reasons the question is whether, in the circumstances which present here, the nature of the duty of care required that the Lucindale School provide adequate supervision of students during the recess period in the area where the plaintiff was injured or in its near vicinity.The law does not require a school to keep students under constant supervision.Whether there is a duty to provide supervision and if there is what is adequate or inadequate supervision depends upon the circumstances of the case (see: Carmarthenshire County Council v Lewis (1955) AC 549 at 566).Is the nature of the duty of care here such as to have required the Lucindale School to provide supervision during the recess period?If the duty of care does require supervision then the further issue which often arises regarding whether there was adequate supervision does not arise here as I have found that no supervision was provided by the Lucindale School.If the duty of care required that the students be supervised during the recess period then the Lucindale School was in breach of that duty of care in failing to provide supervision.
As I have previously mentioned, whether supervision should have been provided depends upon the circumstances.The accident occurred during the recess period.It occurred close to the Junior Primary School classrooms.It was an area where younger children frequently played during recess and lunch periods. Close by were pat-a-tennis courts.There were also two toilet buildings in close proximity to the lawn in front of the Junior Primary School classroom building.These toilets could be expected to be used regularly during recess periods.The school oval was only a short distance from where the accident occurred.Again it could be expected that some of the students using the oval during recess period would be likely to leave the oval to either use the toilets or to use the recreational facilities and open area close to the lawn in front of the Junior Primary School classroom building.In my view, the regular presence of students and in particular young students at or near the site of the accident during recess periods and other periods from class obliged the school to provide a teacher to undertake supervision in that area or its near vicinity.What Olsson J said in H at page 181 is of assistance in this case:-
"A school authority is not an insurer.Its duty, in relation to students under its control and supervision, is to take reasonable care for their safety, that is, it is one of affirmative action to take reasonable steps to protect them against risks of injury which reasonably ought to be foreseen: Richards v State of Victoria [1969] VR 136 at 138.That test predicates a risk of some injury, not necessarily the very injury actually sustained by the plaintiff in the way he sustained it, but a risk of injury of some kind to someone as a result of disobedient horseplay or foolhardiness in the absence of adequate supervision: Bills v State of South Australia (1982) 32 SASR 312 at 319."
(See also: Williams v Eady (1893) 10 TLR 41 at 42; Edgecock v Minister for Child Welfare (1971) 1 NSWLR 751 at 758).
In my view, this was a prime site where horseplay or foolhardiness was likely to take place and that injury could follow from such conduct.Such foolhardiness or horseplay was not likely to be confined to younger students. The area attracted students of other age groups. The regular presence of younger students in my view, placed an obligation on the Lucindale School to provide teacher supervision.Furthermore, in my opinion the mix of students of differing ages made it even more pressing that the school provide adequate supervision.Age mix was a likely catalyst for conflict between age groups. Lucindale School owed a duty of care to the plaintiff to provide adequate supervision in the area of the accident or its near vicinity during recess periods.Accordingly, the Lucindale School was in breach of its duty of care to the plaintiff in failing to provide supervision during the recess period when the plaintiff was injured.
For the plaintiff to succeed in his claim against South Australia he not only has to establish that there has been a breach of a duty of care owed to him by the Lucindale School but that it was more probable than not that if there had been adequate supervision then the injury would have been prevented.As Murphy and Aicken JJ said in Geyer at 102:-
"As examination of the many cases on this topic which have been reported both in Australia and in England shows that the plaintiffs have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question, notwithstanding that no supervision at all was attempted in the particular case."
The test of causation in the law of negligence is laid down by the High Court in Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 2:-
"For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience."
(See also: March v E and M.H. Stramare Pty Ltd (1990-1991) 171 CLR 507 at 515-519; 522-524).
I have found that the young students were throwing stones and bark at the four older students for a period of five to ten minutes before the plaintiff was injured.In my opinion, if there had been supervision of the area, in the form of a teacher's presence, then it is more probably than not that the teacher would have ordered the young students to cease throwing the pieces of bark and stones.If that had occurred then Glen Lightbody would never had thrown the stone which struck the plaintiff.I therefore conclude that the injury suffered by the plaintiff is causally linked to the breach of the duty of care by the Lucindale School.It follows that I find that South Australia is liable in negligence for the damages suffered by the plaintiff as a result of his injury.
Both South Australia and Glen Lightbody have alleged that the plaintiff was guilty of contributory negligence.As I previously stated, at the time that the plaintiff was injured he was nine years of age.In dealing with the question of contributory negligence of a child Kitto J in McHale at 214-215 stated:-
"It is true that contributory negligence is not a breach of legal duty; it is only a failure to take reasonable care for one's own safety.But I must respectfully disagree with those who think that the deficiencies of foresight and prudence that are normal during childhood are irrelevant in determining what care it is reasonable for a child to take for the safety of others though relevant in determining what care it is reasonable for a child to take for himself.The standard is objective in contributory negligence no less than in negligence, in the sense that an ordinary capacity for care is postulated, and is notionally applied to the circumstances of the case in order to determine what a reasonable person would have done or refrained from doing, regardless of the actual capacity for foresight or prudence possessed by the individual plaintiff or defendant.The competition as to efficiency of causation is between 'a breach of duty by the defendant and the omission on the part of the plaintiff to use the ordinary care for the protection of himself or his property that is used by the ordinary reasonable man in those circumstances' ...
It seems never to have been doubted in any reported case from Lynch v Nurdin onwards, that contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age ... In these words, as it seems to me, the whole matter is summed up: the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age - the child there was sufficiently described as of tender years - not that which is to be expected of an adult; and the child's blamelessness, by the standard so determined, is treated as saving his conduct from being regarded as such a cause of his injury as to affect the question of the defendant's liability".
Whilst there is no duty of care owed to another person in contributory negligence it is clear that the standard of care depends upon foreseeability. As Mason J said in The Commissioner of Railway v Ruprecht (1978-1979) 142 CLR
563 at 570:-
"Contributory negligence differs from negligence.There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co. Ltd); and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk.None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury - see, e.g., Sungravure Pty Ltd v Meani."
It follows that the "reasonable and prudent man" here in considering the question of foreseeability that is an ordinary child of comparable age to the plaintiff, namely a child of nine years.
In determining whether the plaintiff has been guilty of contributory negligence the first question that arises is whether a nine year old boy engaged in throwing stones and pieces of bark in concert with other young boys should have foreseen that one or more of the older students may have responded by throwing a stone or piece of bark with the attendant risk of injury.If the answer is positive, then having foreseen the risk of injury the nine year old boy should have foreseen that to avoid the risk of injury he should have left the immediate vicinity of where the "throwing" activity was being undertaken.
In my view, the plaintiff should have foreseen that one of the senior students would have responded as Glen Lightbody did and that such a response may have caused injury.In that event the plaintiff, in the exercise of taking reasonable care for his own safety, should have left the immediate vicinity of where the younger students were throwing the stones.The plaintiff failed to do so.I therefore find the plaintiff guilty of contributory negligence.
I now turn to the question of apportionment.The High Court has directed that apportionment between a plaintiff and defendant involves a comparison of culpability and the relative importance of their acts in causing the damage (see: Pennington v Norris (1956-1957) 96 CLR 10 at 16; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494).The question which arises here is how is that exercise undertaken where there are two defendants whose disparate negligent acts have caused the plaintiff to suffer the damage.This question needs to be considered bearing in mind the common law principle that in an action against a number of tort feasors the judgment should be in the same amount.This problem was considered by the New South Wales Court of Appeal in Barisic v Devenport (1978) 2 NSWLR 111.There the Court was considering the apportionment legislation contained in Section 10 of the LawReform (Miscellaneous Provisions) Act 1965 (NSW).That provision is similar in terms to the apportionment legislation contained in Section 27A(3) of the Wrongs Act 1936, as amended except for the provisos.Those differences are not relevant for present purposes.In undertaking the exercise of apportionment in circumstances such as present here Barisic indicates that what is required is comparing the plaintiff's fault with that of the defendants taken as a unit. The exercise is not to compare fault between the plaintiff and each of the defendants separately (see: Barisic per: Hope J A at 131-132; Samuels J A at 151-154).
Applying the principle identified in Barisic I assess the plaintiff's share of responsibility for the injuries he suffered at 15%.
I now turn to the claim by the plaintiff against Mutual Community.As I mentioned at the commencement of these reasons, the plaintiff seeks a declaration that Mutual Community is obliged to indemnify Glen Lightbody, by virtue of a contract of insurance which existed at the time of the accident for any liability incurred by him in consequence of a judgment entered against him in these proceedings.It was not disputed that the Court has power to make such a declaration (see: J N. Taylor Holdings Limited (In Liquidation) and J.N. Taylor Finance Pty Ltd (In Liquidation) v Alan Bond (1993) 59 SASR 432).
At the time of the plaintiff's accident there was on foot a contract of insurance between David Lightbody and Wendy Lightbody, the parents of Glen Lightbody ("the parents") and Mutual Community.The contract of insurance is described as a home insurance policy ("the policy").Whilst the policy provided insurance with respect to the parents property, it also provided a number of additional benefits.One of the additional benefits contained in the policy was as follows:-
"Family legal liability
Where your contents are insured by us, we will cover you against your legal liability in respect of bodily injury (including illness and death) and damage to property occurring whilst the policy is in force and caused by an event or series of events for which you have become legally liable to pay compensation and/or damages.The maximum sum insured is $5,000,000 which includes all costs and legal fees associated with the liability.The cover applies anywhere in Australia."
The policy contained the following definition in the definition section of the policy:-
"You, Your, Family
Means the person or persons named as the insured in the current policy schedule and all members of your family including your spouse or legally recognised defacto and children who normally reside in your home"
It was not disputed that Glen Lightbody was a child of the parents and residing with the parents who were the persons named as the insured in the policy schedule.Mutual Community denies that it is liable to indemnify Glen Lightbody pursuant to the policy.Mutual Community accepts that Glen Lightbody numbered among the class of persons who were covered by the insurance provided pursuant to the "Family legal liability clause".However, it denies liability on the basis that the conduct of Glen Lightbody in throwing the stone is excluded from cover under the policy by reason of two separate exclusion clauses contained in the General Exclusion section of the policy.The first of those exclusion clauses reads:-
"This policy does not cover:
Unlawful act
Loss, damage or liability arising from any unlawful act or omission by you or any other person insured by the policy or from the enforcement of any act, ordinance or law."
The second exclusion clause upon which Mutual Community relies provides:-
"This policy does not cover:
Deliberate or intentional acts
Loss of or damage caused by the deliberate or intentional acts committed by you."
I will deal first with the clause excluding cover for:-
"Loss of or damage caused by the deliberate or intentional acts committed by you."
The construction of a similarly worded clause was considered by the Full Court in Clayton v Mutual Community General Insurance Pty Ltd (1995) 64 SASR 353.In submitting that Glen Lightbody's conduct was excluded by terms of this clause in the policy Mr Greenwell, counsel for Mutual Community, relied upon the comments of King C.J in Clayton at page 356:-
"I consider that the act contemplated by the phrase 'deliberate and intentional act' is the act of causing the damage.There must be a deliberate or intentional causing of the damage to the insured premises.
Generally speaking, to say that a person deliberately or intentionally causes damage imports that that person desires to cause that damage.Intention in law, however, is not equated with desire.There is an intentional act of causing damage when a person who has no desire to cause the damage, deliberately does so because of a desire to achieve some collateral purpose. Neither is intention equated with recklessness.The act of causing damage is reckless in contra distinction to deliberate or intentional where the person realises the risk that damage will probably result but proceeds irrespective of that risk.
Although intention and recklessness are distinct states of mind and the latter is not within the policy exclusion, there is a point at which the risk of damage to the insured premises, as it exists and as it is realised by the insured to exist in consequence of the insured's actions is so high that the insured's state of mind, notwithstanding that the damage was not designed or planned by him, is indistinguishable from intention.
It is difficult to formulate a satisfactory test for the determining when unplanned and undesigned damage is to be regarded as intentional.In the American cases cited above the test adopted is that the insured believes that the damage is 'substantially certain to result' from his actions and MacGillvray refers to embarking 'upon a course of conduct in which there was a clear risk of the loss occurring'.I do not think that the adoption of a precise formula would be useful.It must be a question for the tribunal of fact whether the risk, as realised by the insured, of the unplanned and undesigned damage was so high that his state of mind should be equated with intention because it amounted to imposing on the insurer a risk which it could not reasonably be thought to have intended to assume".
Mr Greenwell submitted that Glen Lightbody must have realised when he threw the stone that the risk of injury to one of the young boys was very high. Therefore, said Mr Greenwell, in accordance with the approach laid out in Clayton, Glen Lightbody's state of mind, notwithstanding that the injury was not planned by him, was indistinguishable from intention.As a result, submitted Mr Greenwell the "deliberate and intentional" exclusion clause applies.I did not understand Mr Greenwell to submit that the evidence indicated that Glen Lightbody intended to hit one of the young boys when he threw the stone and as a result the exclusion clause applied.In any event such submission is not supported by my findings and therefore could not succeed.What Mr Greenwell submitted, as I just mentioned, was that Glen Lightbody realised that the risk of injury was high and that as a result his state of mind was tantamount to having an intention to hit one of the boys with the stone (Clayton at 356).
It was submitted by Mr Holland, counsel for the plaintiff, in the first instance that the word "you" in the "deliberate and intentional" exclusion clause was referable only to Glen Lightbody's parents.He submitted that the word "you" did not include within its meaning Glen Lightbody.As a result, so Mr Holland said, the exclusion clause did not operate to exclude Glen Lightbody from the cover provided by the policy.Counsel for the plaintiff submitted that whilst the definition of "you" in the definition section of the policy included all members of the parents family including children who normally resided with them, that meaning of "you" did not have that meaning consistently throughout the policy.Counsel pointed to the use of "you" in other parts of the policy where the wider meaning provided by the definition could not apply. He also referred to the word "your" in the same definition clause and pointed to sections of the policy where the word "your" was used in a more confined sense than that provided by the definition clause.In other words, Mr Holland demonstrated that the word "you" when used in some other parts of the policy could only mean the parents of Glen Lightbody.In other parts of the policy the word "you" took the meaning provided in the definition clause.
Mr Holland submitted that the obligation of an insurer is to make the terms of an insurance policy as clear as possible to an insured.He said that where the insurer fails to do this then in the event of some ambiguity arising the policy should be construed in accordance with the "contra proferentem" rule ("the Rule").Accordingly, so Mr Holland submitted, as the word "you" appearing throughout the policy on occasions has the wider meaning provided in the definition clause and on other occasions had the restricted meaning of referring only to the parents then the word "you" in the deliberate and intentional" exclusion clause should be construed against Mutual Community and be confined to mean only the parents and not Glen Lightbody.
True it is that the law requires an insurer to produce an insurance policy which makes its terms as clear as possible (see: Anderson v Fitzgerald (1853) 4 HLC 484 at 510-511; Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14 at 25).If the policy fails to make the meaning of a word or term clear and as a result an ambiguity arises then the "contra proferentem" rule will be applied and the ambiguity will be resolved in favour of the insured against the insurer.However, it is important to recognise that for the Rule to be applied there must be an identifiable ambiguity.It is a rule of construction.The clause under consideration here is the "deliberate and intentional" exclusion clause.If the definition of "you" in the definition section of the policy is applied to the word "you" in that clause no ambiguity arises.In my opinion, if the definition of "you" is applied in the context of the "deliberate and intentional" exclusion clause the meaning of the clause is clear.There is no ambiguity.The exclusion clause applies to the parents and the children who normally reside with the parents.Accordingly, in my view, the exclusion clause applies to Glen Lightbody being one of the persons identified in the definition of "you".
The fact that the word "you" used in other parts of the policy applies to the parents solely is not relevant in considering the construction of the "deliberate and intentional" exclusion clause.It would be relevant if there was ambiguity regarding the meaning of "you" in this exclusion clause. However, there is no ambiguity.As I have said, the application of the definition of the word "you" in the exclusion clause provides an unambiguous meaning of the word "you" in that clause. In my opinion, the "deliberate and intentional" exclusion clause applies not only to the parents but also Glen Lightbody.Accordingly, I reject the submission of counsel for the plaintiff that it applies only to the parents.
The second string to counsel for the plaintiff's bow in his submissions regarding the "deliberate and intentional" exclusion clause is that the evidence demonstrates that the injury to the plaintiff was not caused by the deliberate or intentional act of Glen Lightbody.Furthermore, Mr Holland submitted that the risk of injury to one of the boys was not at such a high level here that the conclusion could be reached that his state of mind was indistinguishable from intention as that proposition is understood in Clayton. It was submitted, that the "deliberate and intentional" exclusion clause did not operate to exclude the act of Glen Lightbody from cover under the policy. In Clayton, King CJ said that no test could be adequately formulated to determine "... when unplanned and undesigned damage is to be regarded as intentional ..." (page 356)His Honour indicated that it was for the tribunal of fact in each case to determine ... "whether the risk, as realised by the insured, of the unplanned or undesigned damage, was so high that his state of mind should be equated with intention because it amounted to imposing on the insurer a risk which it could not reasonably thought to have intended to assume" (page 357).(Emphasis added).
As I said earlier, I accept that Glen Lightbody did not intend to strike any of the young boys with the stone when he threw it.He threw the stone in the general direction of the group of boys. I accept that it did not pass through his mind at the time that the stone may strike and injure one of the boys. Having accepted that it did not pass through his mind that the stone may strike one of the boys then that excludes the possibility of any finding that his state of mind should be equated with intention.Apart from that finding there was nothing in his action in throwing the stone or his evidence which suggests that Glen Lightbody realised that the risk of injury was so high that it could be considered that his state of mind was indistinguishable from intention. Whilst the conduct of Glen Lightbody was negligent there is no evidence to suggest the negligent act should be elevated to an "intentional" act for the purposes of the exclusion clause.I therefore conclude that the "deliberate and intentional act" exclusion clause does not exclude Mutual Community's liability under the policy.
I now turn to the "unlawful act" exclusion clause which Mutual Community submits applies to exclude it from any liability to indemnify Glen Lightbody under the policy.It was submitted by counsel for Mutual Community that the act of Glen Lightbody of throwing the stone and striking the plaintiff was a contravention of each of the following statutory offences:-
ù Section 39 of the Criminal Law Consolidation Act 1935, as amended.
ù Section 7 of the Summary Offences Act 1953, as amended.
ù Section 51 of the Summary Offences Act 1953, as amended.
Accordingly, the act of throwing the stone was unlawful and as a result Mutual Community is not required to provide indemnity to Glen Lightbody by virtue of the policy.
Counsel for the plaintiff, Mr Holland, submitted that on its proper construction the clause only excludes Mutual Community from liability where the act is a serious breach of the criminal law which carries with it some moral turpitude.He submitted that on its proper construction the meaning of "unlawful act" in the exclusion clause does not include a negligent or inadvertent act here.
In the course of his submissions counsel for the plaintiff relied upon the decision of the majority of the New South Wales Court of Appeal in Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121 in support of his submission regarding the meaning of "unlawful act" in the exclusion clause.In that case a policy of personal accident insurance covered the insured for death caused by accident but excluded death which resulted from "an insured person's own criminal act".Hope J A at pages 124-125 made the following observations regarding the terms of the exclusionary provision:-
"It is trite that in construing insurance policies as in construing any other contract, words should generally be given their ordinary meaning.There are however many well-known exceptions to this rule, and one overriding qualification is that it is necessary to have regard to the context in which the words appear ... In these circumstances, looking not merely at the language in exclusion 3 but looking at the context of the whole policy, some limitation should be read into the ordinary meaning of the words 'from an insured person's own criminal act'.Indeed the question which arises for decision is rather what limitation should be read in rather than whether any limitation should be read into these words.
I have had the advantage of reading the reasons prepared by McHugh J A in which he concludes that any act punishable by law which ordinary people would regard as serious wrongdoing is a criminal act for the purpose of the exclusion and his Honour rejected the view adopted by Ducker DCJ.While recognising the strength of the reasons expressed by his Honour in reading his conclusion it seems to me that a limitation excluding negligent and inadvertent criminal acts is a proper construction to be put upon the words, whether or not any further limitation involving the seriousness of the offence is also to put upon them."
Mr Holland submitted that the decision had application to policies of insurance where an exclusion clause included expressions such as "criminal act" or an "unlawful act".In my opinion, the decision turned entirely on its own facts and cannot be relied upon to support the argument presented by the plaintiff. The exercise undertaken in Australian Aviation was an exercise in the construction to be placed on the exclusionary words in the context which they appeared in the policy under consideration.That is precisely the exercise which is to be undertaken here.
The ordinary meaning of "unlawful act" is, in my opinion wider than expressions such as "criminal act" which was part of the term under consideration in Australian Aviation.As much was said by McHugh JA in Australian Aviation at 129:-
"However, the meaning of the term 'own criminal act' in this case has to be determined in the context of an insurance policy.If the parties had intended that the term should cover any breach of the law, a different form of words might have been expected to be used.It would have been easy enough to exclude any 'unlawful act' or 'any act or omission occurring in the course of an offence punishable by law'.The introduction of the element of criminality by means of an adjective suggests that the exclusion clause was not directed to any act which was a breach of the law but to an act which had some quality which ordinary persons would regard as criminal." (Emphasis added).
The meaning of the words "unlawful act" in the context of an accident policy were considered by Lowe J in the Victoria Supreme Court in Re United Insurance Co. Ltd and Absalom (1932) VLR 494.The policy insured against bodily injury but excluded injuries sustained by the insured "by or while performing any unlawful act or otherwise exposing himself to unnecessary danger or risk".The insured sustained injuries from which he died as a result of a collision between a buggy being driven by him and a motor vehicle.At the time of the accident the insured did not have any lighted lamp fitted to his buggy.This was in contravention of Section 18 of the Police Offences Act.In considering the meaning of "unlawful act" in the context of the policy Lowe J said at 500:-
"But I still have to consider what is meant by the words 'performing any unlawful act'Does this include any breach of what may be called police provisions, or is it limited to graver offences such as indictable offences? Does it include all unlawful acts, whether civil merely or criminal in any degree, or is it limited to those which are manifestly unlawful?It is difficult as a matter of construction to deny this language its most general meaning, and I feel that I should be on unsafe ground if I attempted to restrict it so as to exclude cases like the present."
Like Lowe J in United Insurance there is nothing in the terms of the policy under consideration here to deny the language its general meaning.In my view the expression is of wide import.There is nothing in the "unlawful act" exclusionary clause or real in the context of the entire policy which suggests that the term should be confined to serious breaches of the criminal law. Furthermore, there is nothing to suggest that the term does not include "unlawful acts" which such acts were negligent ones.
I now turn to consider the offences which Mutual Community assert were committed by Glen Lightbody in throwing the stone which struck the plaintiff. The first is a claim that he was in breach of Section 39 of the Criminal LawConsolidation Act 1935, as amended.Section 39(1) provides:-
"39(1) A person convicted of common assault is liable to be imprisoned for a term not exceeding two years or, where the victim was at the time of the commission of the offence a family member of the offender, for a term not exceeding three years.
In my opinion, Glen Lightbody has not contravened Section 39.For the offence to be committed it is necessary to prove that a person intentionally or recklessly applied force to the person of another (see: MacPherson v Beath
(1974) 12 SASR 174 at 177; R v Venna (1976) 1 QB 421 at 429).I have found that Glen Lightbody did not have any intention of striking the plaintiff or any other of the young boys when he threw the stone.Furthermore, I am of the view that whilst his conduct was negligent it was not reckless in the sense required for the commission of an offence of common assault.
The second offence which Mutual Community alleges Glen Lightbody committed was the contravention of Section 7 of the Summary Offences Act 1953, as amended. Section 7 provides:-
"7.(1) A person who, in a public place or a police station -
(a)behaves in a disorderly or offensive manner;
(b)fights with another person;
or
(c)uses offensive language
is guilty of an offence.
(2)A person who disturbs the public peace is guilty of an offence.
(3)In this section -
"disorderly" includes riotous:
"offensive" includes threatening, abusive or insulting:
"public place" includes, in addition to the places mentioned in section 4 -
(a)a ship or vessel (not being a naval ship or vessel) in a harbor, port, dock or river;
(b)premises or a part of premises in respect of which a licence or permit is in force under the Liquor Licensing Act, 1985."
I did not have the advantage of hearing full submissions regarding the elements of this offence.In view of the approach I take to the third offence alleged to have been committed by Glen Lightbody it is not necessary to reach a conclusion on this submission.However, I should indicate that I doubt whether Glen Lightbody had an intention, as it is understood in the cases, to commit the offence (see: Daire v Stone (1991) 56 SASR 90; Stone v Ford (1993) 59 SASR
444).Furthermore, I doubt whether the place where Glen Lightbody threw the stone was a public place within the meaning of that term in the section.
The third offence which Mutual Community alleged that Glen Lightbody committed was a contravention of Section 51 of the Summary Offences Act 1953, as amended. Section 51 provides:-
"51(1) A person who discharges a firearm or throws a stone or other missile, without reasonable cause and so as to injure, annoy or frighten, or be likely to injure, annoy or frighten, any person, or so as to damage, or be likely to damage, any property, is guilty of an offence.
(2)In this Section -
"firearm" means a gun or device, including an airgun, from or by which any kind of shot, bullet or missile can be discharged:
"throw" includes to discharge or project by means of any mechanism or device."
In my opinion Glen Lightbody in throwing the stone and striking the plaintiff committed an offence under Section 51 of the Summary Offences Act.It is not necessary to prove an intent to injure for a person to be found guilty of contravening the section.It is only necessary to prove an intention to throw a stone (see: Rowe v Manevski (1994) 62 SASR 468).If the stone strikes a person then the person throwing the stone strikes another person then the "thrower" has contravened the section unless it can be established that the "thrower" had reasonable cause to throw the stone.In considering the question of reasonable cause Perry J in Rowe said at page 477:-
"In my opinion, a person charged with a breach of s51(1) might, nonetheless, prove reasonable cause, even if he or she was to be guilty of a failure to exercise reasonable care.To hold otherwise, would be to expose a person to the risk of conviction for a criminal offence on the basis of a mere want of due care.To do so would be to ignore the fact that the level of misconduct leading to criminal culpability (except in the case of absolute offences) is generally higher than that giving rise to civil liability.A penal statute should be construed consistently with that distinction.
It would be neither wise nor profitable to attempt the task of offering a definition of 'reasonable cause' which would be apt to provide an answer to every possible case.The circumstances in which there may be an act or omission having the potential of constituting a breach of s51 of the SummaryOffences Act are so varied that no single formula could possibly provide an answer in every case.What might amount to reasonable cause in one case may not amount to reasonable cause in another.
In addressing the question whether the appellant discharged the onus of proving 'reasonable cause', it is necessary to have regard to all of the surrounding circumstances proved in evidence.Having done so, it is then necessary to determine objectively whether those circumstances amount to proof on the balance of probabilities, of the existence of reasonable cause.In making that determination, the considerations to which I have referred should be borne in mind.
Where it has been suggested that there was a lack of due care, that becomes a relevant matter in determining whether the appellant discharged the onus of proof of 'reasonable cause'.But the want of care required before it could be said that the onus was not discharged, must be more serious than a departure from the standard of care which would result only in a finding of liability in negligence."
In the circumstances of this case I am of the opinion that Glen Lightbody has not shown reasonable cause in throwing the stone in the direction of the young students.The persistent throwing of the stones and pieces of bark at the group of older students was annoying.However, that fact and the failure of the boys to cease their activity upon being requested to do so does not establish that Glen Lightbody had a reasonable cause to throw the stone. Therefore, in my opinion, as I earlier stated, Glen Lightbody was guilty of contravening Section 51 of the Summary Offences Act.It follows from what I have said earlier regarding the meaning of the term "unlawful act" that I am of the opinion that by contravening Section 51 of the Summary Procedure Act in throwing the stone that Glen Lightbody committed an "unlawful act" within the meaning of that term in the "unlawful act" exclusion clause of the policy. Therefore, in my view, the "unlawful act" exclusion clause applies and excludes Glen Lightbody from cover under the policy.As a result I refuse to make the declaration sought by the plaintiff.
With respect to the action by the plaintiff against South Australia (the first defendant) and Glen Lightbody (the second defendant) I make the following orders:
(1)A declaratory judgment finally deciding the question of liability in favour of the plaintiff against the first defendant and second defendant for 85% of the plaintiff's damages to be assessed;
(2)That the assessment of the plaintiff's damages be adjourned.
I will hear parties on the question of costs and any other orders.
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