Daniel Russell Tillman v Kelso Australia Pty Ltd t/as Moree Hot Springs Health Resort

[2008] NSWDC 199

CITATION:	Daniel Russell Tillman v Kelso Australia Pty Ltd t/as Moree Hot Springs Health Resort [2008] NSWDC 199
HEARING DATE(S):	23 - 24 September 2008
JUDGMENT DATE:	30 October 2008
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in the sum of $358,719.
CATCHWORDS:	TORTS - Negligence - Duty of motel operator to family registered guest - Defences: contributory negligence - Defences: voluntary assumption of risk - Civil Liability Act - "inherent risk" - "obvious risk"
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Caterson v Commissioner for Railways (1973) 128 CLR 99 Sayers v Harlow Urban District Council [1958] 1 WLR 623 Romeo v The Conservation Commission of the Northern Territory (1998) 192 CLR 431 Harrison v Melhem [2008] NSWCA 67
PARTIES:	Daniel Russell Tillman (Plaintiff) Kelso Australia Pty Ltd t/as Moree Hot Springs Health Resort (Defendant)
FILE NUMBER(S):	6274 of 2006
COUNSEL:	L T Grey (Plaintiff) M Fordham (Defendant)
SOLICITORS:	Slater & Gordon Lawyers (Plaintiff) Curwoods Lawyers (Defendant)

JUDGMENT

1 HIS HONOUR: Daniel Tillman claims compensation for injuries he suffered when he fell while attempting to climb over a security fence to gain entry to the motel at Moree where he was staying. This was owned at the time by Kelso Australia Pty Limited trading as Moree Hot Springs Health Resort (Kelso).

The issues

2 The claim is expressed to be both in negligence and for breach of contract. If I find that the tort claim can be sustained, then I must consider issues of contributory negligence. If I find for him on liability, there are also contested issues as to the amount of damages to which Mr Tillman is entitled.

Factual background

3 Mr Tillman and his family had been invited to attend his nephew's birthday party in Moree on 8 May 2004. Mr Tillman was the master of ceremonies. He, his wife Michelle, his son, his daughter and his daughter-in-law had travelled to Moree from Brisbane in two cars on the afternoon of that day. Mrs Tillman had previously made a booking at the motel by phone. When they arrived, Mrs Tillman went to the reception desk, paid for the accommodation in a family room, and obtained a receipt.

4 The Tillman family left both their vehicles in the hotel car park. They went to the room, rested for a short time, changed, and then either Mr Tillman's brother collected them in his vehicle and drove them to the party or they took a taxi. The party was held some distance away in Moree. Mr Tillman did not drink any alcohol that night. Mr Tillman's brother and sister-in-law drove the family back to the motel. They found that the security gate to the motel was closed and secured with a chain and padlock.

5 Mrs Tillman rang the two telephone numbers that she found on the receipt, which was in her handbag. There was no answer. Mr Tillman's son climbed over the security fence to see if he could raise any staff or find an after hours telephone. There was apparently a telephone number displayed on the restaurant, and Mrs Tillman called this from her mobile phone, also without success. Mr Tillman's daughter and daughter-in-law also climbed the fence and sought to find someone who could open the gate. They were also unsuccessful.

6 Mr Tillman's brother then drove his vehicle into the right-angle corner of the security fence. Mr Tillman climbed onto the bull bar and then placed his foot on the horizontal rail at the top of the security fence.

7 At this point he lost his footing, and turned a forward somersault, landing on his back on the ground inside the motel. He suffered quite serious injuries including fractures to his shoulder and what Dr Cooke described as "traction fractures" to two vertebrae. He also damaged his head and wrist.

8 Mrs Tillman became extremely upset. She telephoned the police, and after about five minutes police, including Senior Constable Atkins, arrived. Senior Constable Atkins gave evidence that, before leaving the police station, he had tried unsuccessfully to contact the emergency number listed in police records for the motel, without success. He was also unable to gain entrance to the motel, and called for assistance. Shortly afterwards an ambulance arrived, and another police vehicle which brought bolt cutters. The bolt cutters were used to cut the padlock and the gate was opened. The ambulance officers treated Mr Tillman and took him to Moree hospital, where he was admitted and kept overnight. He was discharged the following morning and the family drove back to Brisbane.

Locking the gates

9 Mr McCarthy was the office manager of the motel at the time. No other officer or employee of Kelso was called, so I infer that they could not give evidence, which would assist Kelso. Mr McCarthy was not on duty on the Saturday or Sunday when the Tillman family stayed at the motel and could not give direct evidence of what happened. He said that the management had decided to lock the security gates at 11 p.m. as a trial precaution against break-ins, and that when this policy started operating there was, at all times, a notice in the window of the reception area of the motel, and that staff were instructed to advise patrons of this. He also said that two staff who lived in the motel compound had mobile telephones, and that the numbers of these phones were on the notice, a copy of which he identified. Mrs Tillman said that they did not seem to be the numbers on her receipt.

10 Mrs Tillman said that, when she checked in, she was not given any instruction or information about gates closing after a specified time or about gaining entry after hours. Indeed, she was not given any other document, and I accept that no one indicated anything to her anything that would suggest any difficulty in obtaining access to the motel late at night.

11 Neither Mrs Tillman nor Senior Constable Atkins, who arrived shortly after the incident giving rise to this claim, saw any such notice.

12 Mrs Tillman spent most of the time between midnight and the next morning at the hospital with her husband. She did return to the motel for a couple of hours sleep, then went back to the hospital, but returned to the motel shortly before 10 o'clock to pack her belongings and check out. When she did check out she spoke to a blonde young man with an accent and asked him if he had noticed that the padlock on the gate was cut. He said that he had noticed. Mr McCarthy could not positively identify this person. She then told him that the police had cut the padlock because she and her family had been unable to get into the motel when they arrived back between 11.30 and midnight. He indicated that there was a sign. She said that she had not seen this, and asked him to point it out to her. He indicated that it was on the left of the entrance door to the reception area. Mrs Tillman then asked the man to show her. He came from behind the counter and looked in the place where he had indicated, but there was no notice. He admitted to her that the notice was not there.

13 I accept the evidence of Mrs Tillman and Senior Constable Atkins’ evidence that at the relevant times, there was no notice in the place indicated by Mr McCarthy. I also accept Mrs Tillman’s evidence that she was not given any information, oral or written, about the gates being locked at 11 p.m., even if there had been such a notice as Mr McCarthy described when he went off duty before this incident. Mr McCarthy, I find, was not aware of precisely who was attending the reception desk at the time Mrs Tillman checked in, and was not in a position to give evidence that whoever it was would advise patrons that the gates would be closed at a specified time. I also find that no written flyer was given to Mrs Tillman when she checked in. Mr McCarthy was able to say who this person was, yet Kelso neither called him nor explained his unavailability. I infer that his evidence would not have helped Kelso. This reinforces my view that Mrs Tillman’s evidence was correct.

14 However, even if the notice had been placed in the reception window, as Mr McCarthy described, this would not have been sufficient to discharge the duty of a motel operator planning to lock the gates late at night. Because a commercial motel operator undertakes to make accommodation available to the public if it is proposing to deny access to that accommodation, it must make alternative arrangements for access, which would require at least either the provision of a gate key to each guest or the posting of the after-hours access telephone numbers in a position where they were clearly visible to guests locked out of the motel.

Mr Tillman’s work and medical history

15 Mr Tillman is now over 50. He has had a number of health problems in the past, but at the time of the Moree accident, he was in good physical health and was working full-time for a body associated with Anglicare organising employment for refugees.

16 Mr Tillman was born in Moree to an aboriginal family. He was a member of the stolen generation and was brought up by the Tillman family. He went to high school until he was 18 years old and completed his Higher School Certificate. After working for a year in advertising, he joined the New South Wales police and also joined the Army Reserve. He was a police officer for 4 years and a member of the Army Reserve for 7. After that he worked as a supermarket manager, a manager of caravan parks and luxury units and then in various types of community work and as a labour hire manager. Twenty-five years ago he married Michelle and they have three children. Both Mr and Mrs Tillman have a strong interest in community development and welfare work. In the mid-1990s they moved to the Northern Territory where Mr Tillman did a number of things. In 1996 he became a branch manager for ESP Indigenous Careers and Development and subsequently became national manager. He lost everything in the Katherine Floods of 1998. He worked as a volunteer for, and then obtained a position with, Mission Australia. From 1998, much of his work has been with aboriginal people, either in community development or in human resources. From 1998 until 2000 he worked for Centrelink, in relation to the employment of aboriginal people, an area in which he had some expertise. In the course of this employment he had a conflict with his supervisor, and as a result of that suffered a number of work-related stresses leading ultimately to him leaving Centrelink. He successfully brought compensation proceedings as a result of this. In the course of those proceedings he was examined by two psychiatrists in Darwin, and their reports are in evidence. In 2001 he started his own ecotourism business and also did community development work. About 2001 he suffered some heart problems, and he and his family moved to Brisbane, so that he could get medical attention for those problems. He also started to see Dr de Leacey, a psychiatrist, because he was still suffering from depression triggered by the stresses he had experienced while working for Centrelink. Between 2003 and the date of the accident he worked for non-government organisations and welfare or community groups. He was recruited for the position he held at the time of the Moree incident by Anglicare, and did not apply for the position himself, and held that position as a project coordinator, working with refugees and immigrants.

17 Before the fall in Moree, Mr Tillman described himself as active and committed. In his evidence in court he demonstrated considerable enthusiasm for various positions he had occupied, particularly those involving aboriginal people and refugees. It is clear that with his experience and background he has knowledge and skills, which would be extremely valuable to those groups of people.

18 At the time of the fall, Mr and Mrs Tillman lived in rented accommodation in Brisbane. Both gave evidence and said that during their marriage both had always worked and they had shared the household responsibilities. Mr Tillman did most of the lawn mowing, and garden work and he maintained the vehicles, but he also assisted with house work and shopping, although Mrs Tillman did most of the cooking. Mr Tillman was particularly keen on camping in the bush and in using the skills of traditional aboriginal people, which he had learnt.

Medical treatment after the fall

19 As a result of the Moree fall, Mr Tillman was admitted to Moree Hospital, where he received, to put it as objectively as possible, cursory treatment. He was not X-rayed until he returned to Brisbane. His main complaint was injury to his head, hips, ribs and leg. Hospital records say he was keen to go home. Mrs Tillman drove him back to Brisbane.

20 After the family returned to Brisbane, Mr Tillman spent two to three weeks immobilised in bed. During this time his wife and other members of his family had to assist him in all his activities, including showering, dressing, and even cutting up food. He gradually recovered some strength but complained of pain, particularly in his shoulder.

21 Mr Tillman consulted a GP, Dr Doolan, the day after his return, and was X-rayed the next day. In January 2005, he was referred to Dr Cooke, the orthopaedic surgeon from Brisbane who treated him. Dr Cooke provided a report and was cross-examined upon it. Dr Cooke’s evidence, both written and oral, was that initially Mr Tillman's complaint was primarily of pain in his shoulder and immobility in his left arm as a result of the fall. Ultimately Dr Cooke performed a surgical procedure on the shoulder and was very pleased with the results.

22 Dr Cooke was aware of Mr Tillman's lower back pain. He had available to him a variety of radiographic material, and he concluded from this that there was a traction fracture of two vertebrae, but he did not think that this injury had caused any impact on the spinal nerves. He formed the provisional view that Mr Tillman's lower back pain did not have an organic cause. His view was that if Mr Tillman lost weight and developed his fitness, particularly bulk in his spinal muscles, his pain would be relieved. He referred him to a physiotherapist for supervised hydrotherapy exercises and told him to lose weight.

23 Mr Tillman in fact did do a number of courses of hydrotherapy and did consult a dietician.

24 During one consultation with Dr Cooke, at which Mrs Tillman was present, Dr Cooke described Mr Tillman as "morbidly obese" and Mrs Tillman objected to this. There was a strong difference of opinion and Mrs Tillman left the consulting rooms. Not unsurprisingly, Mr Tillman did not return to Dr Cooke.

25 Mr Tillman says that as a result of the surgical procedure his shoulder is much better, although not completely recovered.

26 He has subsequently seen another orthopaedic surgeon in Darwin, Dr Sharland, but at this stage the future course of treatment is not clear, and Mr Tillman continues to suffer lower back pain, some paraesthesia, and pain in his left buttock radiating to the front of his legs.

27 Mr Tillman also says that his depression is much worse since the Moree incident. He continued to see Dr de Leacey, a psychiatrist, who had been treating him for a depressive condition for some time. Dr de Leacey said that Mr Tillman tended to react badly to any physical injury. His opinion was that the Moree injuries had a strongly adverse affect on Mr Tillman's mood, but did not produce any new psychiatric condition.

28 In January 2008, Mr Tillman fell down the steps of his house and re-fractured his left shoulder. He does not attribute that injury to the fall at Moree, and he does not deny that as a result of that injury, his depression has become worse.

29 He also received treatment, between March 2004 and the date of the hearing, for a number of conditions that, he agrees, are not related to the Moree fall.

Contractual liability

30 It is not disputed that the contract with Kelso to provide accommodation for the Tillman family was made by Mrs Tillman. She made the arrangements over the telephone, she paid by credit card and she received the receipt from the counter staff. In his submissions, counsel for Mr Tillman conceded that the limited exception to the doctrine of privity of contract recognized by the High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 would not extend to Mr Tillman in this case, even though the contract made by Mrs Tillman was made to his benefit and that of other members of the family.

31 Mr Tillman contends that because of the contract, Kelso had a general duty of care to him and to the other members of his family who were staying at the motel. Because it is quite clear that the accommodation booked was not just for Mrs Tillman, but a “family room, intended also for other members of the family, Kelso must have known that not only Mrs Tillman, but also other members of her family, would be staying at the motel. This contention is correct. Kelso did have a duty to take reasonable care for all people who, to its knowledge, would be accommodated in the motel as paying guests, even if it did not have a direct contractual relationship with such persons.

Kelso’s negligence

32 Kelso asks me to accept the evidence of Mr McCarthy that the management of the motel had decided to lock the gates at 11 p.m. to prevent break-ins and thefts. It says that this was a reasonable measure. In some circumstances I would be prepared to accept this contention. However, Kelso also asked me to accept that it took reasonable measures to notify guests that the gates would be closed, and that they could obtain entry after 11 p.m. by calling one of two mobile telephone numbers listed on a sheet of paper. Kelso's case is that this piece of paper was affixed to the window of the reception area, and that copies were also given to guests on check in.

33 As I have already indicated, I accept Mrs Tillman's evidence, and that of senior Constable Atkins, that at the time of this incident there was no such notice posted in the reception area. Further, I find no written notice was given to Mrs Tillman or any member of her party. Even if this had been the only advice given to guests, I consider the exercise of reasonable care and skill by a motel operator, who locked the gates for security reasons to motel guests, required either the provision of (preferably) a key to the lock for all guests, or alternatively written advice handed to each guest on check in, stating that there was an after-hours number and what this number was. It would also have been necessary, while the gates were locked and the motel continued to offer overnight accommodation without allowing access to the motel rooms, if Kelso were to lock the gates in the way it did, to display the after-hours phone number clearly at the entrance of the motel so that those outside the gate could see it. It did not help that the only visible phone number displayed in the motel was a number that, like the emergency numbers recorded by the police, did not answer when either Mrs Tillman or Senior Constable Atkins called it.

34 As I have indicated, I do not accept Mr McCarthy's evidence that all staff were properly instructed. Mr McCarthy could not identify at least one staff member described by Mrs Tillman, and the inference I draw is that when he was not personally on duty, the owners of the motel or their resident representatives made their own arrangements for attendance at the reception desk. It is significant that the evidence was that the motel has subsequently closed down, and Mr McCarthy left shortly afterwards. That would be consistent with the sloppy management disclosed by the consistent evidence of, and called by, the plaintiff, which I prefer to the imprecise evidence of Mr McCarthy.

35 I find therefore that Kelso was in breach of the duty owed to Mr Tillman and others in his position to provide proper means of access to the motel after 11 p.m., because it did not exercise reasonable care and skill for alternative arrangements for guests to enter the motel while it operated its policy of locking the gates.

36 That leads to the question of whether Kelso had a duty to take care to prevent the risk that a person locked out of the motel might attempt to climb over the fence. At common law, the principle established in such cases as Caterson vCommissioner for Railways (1973) 128 CLR 99, and possibly more pertinently, Sayers v Harlow Urban District Council [1958] 1 WLR 623 would almost certainly impose on Kelso a duty of care to a person in the position of Mr Tillman.

37 Those cases establish that where a person is kept confined to a particular space without reasonable means of leaving, the person responsible for so confining them owes a duty to provide a reasonably safe method for the person to leave, because it is reasonable in such circumstances for a person to try to escape, even if the escape clearly involves risk. Thus in Caterson, the operator of a train was liable to the father of the child left stranded on the platform in circumstances where the father left the train after it had commenced moving. The majority of the Court had no difficulty in finding that it was not unreasonable that a person would attempt to leave the train in such circumstances. See particularly the remarks of Gibbs J (as he then was) at 109-110 and the English authorities he considered. Mrs Sayers was entitled to compensation from the Council when she was locked in a lavatory cubicle and injured herself while trying to climb over the door after she had waited for some time. No doubt the Council would have said that alternatives were open to her, such as waiting until some other user came into the toilet block.

38 Both the cases to which I have referred concerned attempts by people to escape from places in which they had been confined. In the particular circumstances of this case, I can see no distinction from a situation where a person has a legitimate expectation of being able to gain entry to a place and is excluded from it, especially where there are particular reasons connected with the person's health, which I shall discuss, for him to require entry to that place. The operator of such a place has a duty to provide reasonable alternative means of access.

39 In this case Kelso says that Mr Tillman had alternatives open to him, but, for reasons that I shall mention, in the circumstances facing him late at night, I find that Kelso did not provide reasonable alternative means of access and that there were no reasonable alternatives open to him, so that he was forced to take a risk which, like the risk facing Mrs Sayers, was clearly obvious.

40 Kelso argues that Mr Tillman should not have attempted to climb over the fence, but rather, should have sought alternative accommodation. To expect a person, let alone a large family, to find alternative accommodation in a relatively small country town late on a Saturday night is neither reasonable nor realistic. Mr and Mrs Tillman gave evidence that they were only staying at the motel because their relatives did not have accommodation for them, and that other “family” accommodation of the type they required was not available in Moree at the time. Their vehicles were locked in the motel compound.

41 At the time they were both employed and they could afford to stay in the motel. It is quite reasonable to accept that Mr Tillman's relatives simply did not have accommodation for them, because other family members were staying there.

42 The Tillman’s vehicles were locked in the motel compound, so that they could not have driven their vehicles to any other accommodation. Mr Tillman’s brother in law may have driven them, but even so it is not reasonable to expect a person who has booked and paid for motel accommodation to seek an alternative at midnight, or to sleep in a vehicle.

43 The fact that Mr Tillman is an insulin-dependent diabetic, and was also taking other medication is significant. An insulin-dependent diabetic who does not take insulin regularly may well be endangering his or her life. Mr Tillman's evidence was that he left his medication, including his insulin in the motel room and reasonably expected to have access to it.

44 The evidence is that Mr Tillman's son, daughter-in-law, and daughter all climb the fence (without, I should say, the need to step on a vehicle to get over the fence). It is very well for Kelso to say that one of those people could have obtained medication from the motel room, but it is equally reasonable for Mr Tillman, having seen them climb the fence with ease, to attempt to do the same thing.

45 That is not to say, that if I find that Kelso's breach of duty caused the injury to Mr Tillman, he may not have taken reasonable care for his own safety.

46 It is agreed that in this case the relevant provisions of the Civil Liability Act 2002 govern this issue. Kelso’s contention is that this legislation has changed the common law. Section 5B provides:

General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm , the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm ,
(c) the burden of taking precautions to avoid the risk of harm ,
(d) the social utility of the activity that creates the risk of harm .

47 I find that the risk that a guest excluded from the motel late at night would attempt to gain entry by climbing over a fence was reasonably foreseeable. It is clearly obvious from the photographs of the fence in question that anyone seeking to climb over the fence ran a risk of falling. It follows that Kelso had an obligation to take precautions that guests who had checked into the motel would not be excluded from the motel, even though it might well be reasonable to lock the gates as a precaution against crime. I have already indicated what those precautions should be, and that Kelso did not provide them. That is not to suggest that it was necessary to warn anyone of the risk of falling in an attempt to climb the fence. That risk was obvious.

48 Those who operate motels or similar accommodation do so on the basis that those who make arrangements to stay in that accommodation will have unrestricted access to it. It is reasonable, if access is to be restricted, to warn registered guests and members of their family that the access will be restricted, but, more importantly, to provide reasonable alternative means of access to them. In this case I find that Kelso did neither of these things. The risk of harm where a person attempted to climb over the security fence was significant. The burden of taking proper precautions, along the lines that I have already outlined was very slight. Whether there was any social utility in locking the security gate is a matter I cannot decide, but any utility of taking security measures must be balanced against the obligation that a motel operator undertakes to provide guests with the accommodation they have paid for.

49 In the circumstances, the position under the Civil Liability Act, s 5B, in circumstances such as this (and, I should add, in my view, the circumstances of Sayers’ case) is the same as that under the common law and Kelso was, within the meaning of the Act, negligent.

50 The fact that a risk is obvious does not mean that there is no duty to take steps to prevent harm from that risk occurring. The effect of section 5F is simply to relieve a person from the obligation to warn of the risk. If that person creates the risk in circumstances that amount to negligence, the person remains liable if the risk causes harm.

Causation

The Civil Liability Act 2002 provides as follows:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation"), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( "scope of liability").


(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation , the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability , the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

51 The construction of this section brings the Court to virtually uncharted waters. It encompasses much of the common law relating to the scope of duty of care and also the notion of "proximity". It also requires a court to make a value judgment as to whether and why responsibility should be imposed on a wrongdoer.

52 There is no doubt that the locking of the security gate to the motel was a significant factor leading to Mr Tillman's fall. If proper warning or access had been given, and the gate had not been locked, he would not have attempted to climb the fence. In that sense "factual causation" is clearly established.

53 The real issue is whether it is appropriate to impose liability on Kelso in the circumstances of this case. The operator of a motel or other public accommodation generally undertakes to make that accommodation available to registered guests on payment of an agreed price. Once the guest has made the payment, it is at least an implied, if not an express, term of the contract that all persons who are registered guests, and within the contemplation of the accommodation operator as being guests, should have access to the room and use of the facilities therein, for which they have paid, without any impediment. I have indicated that if proper warning facilities for access had been provided, there could be no question that the motel operator was entitled to lock the gates for security reasons. I have found that neither a proper warning that the gates were locked at 11 p.m. nor proper arrangements for alternative access was provided. The question then becomes, in what circumstances should the motel operator be made liable for the consequences of its breach of duty in failing to provide proper warning or access.

54 The common law cases, including Caterson and Sayers, establish that it is far from unreasonable, and totally foreseeable, that a person confined in a space against his or her wishes will attempt to escape from that confinement, even where, in other circumstances, the means of escape chosen would involve undue risk or otherwise would not be reasonable. I have already determined that, in circumstances such as applied in this case, similar reasoning applies to the case where a person is wrongly excluded from a place to which he or she is entitled to be admitted. It follows that a motel operator, who, without giving proper warning or alternative access arrangements, wrongly excludes guests from the motel, ought reasonably to foresee that those guests who are wrongly excluded may attempt to gain access by climbing a fence. A commercial operation offering accommodation undertakes certain obligations to its guests, and it is reasonable to impose liability on it in a case where people wrongly excluded from that accommodation act reasonably to attempt to gain access. Kelso’s submission as the scope of the duty, based on Romeo v The Conservation Commission ofthe Northern Territory (1998) 192 CLR 431, [123-129] is simply not relevant to the circumstances of this case. The High Court was there considering the question of what steps ought a person reasonably take to prevent foreseeable risk, especially in view of public resources allocated to that purpose. Here Kelso was undertaking the provision of accommodation for its own profit. The resources involved in providing extra keys, or posting a suitable notice, were minimal.

55 In these circumstances it is not necessary to consider any statement made by Mr or Mrs Tillman, or indeed, whether there were any reasonable alternatives available to them, in order to determine whether or not Kelso’s negligence caused the harm to Mr Tillman. I find that it clearly was reasonable for them to attempt to gain access to the motel in the way that they did. I therefore find, for the purposes of s 5D, that Kelso's was negligent and that this negligence caused the harm to Mr Tillman.

Contributory negligence and assumption of risk.

56 The test for contributory negligence established by the Civil Liability Act 2002 is in Part 1, Division 8, particularly s 5R. The test is whether a reasonable person in Mr Tillman's position had failed to take precautions against the harm. I have already found that the risk of falling while climbing a security fence such as that at the motel was an obvious risk. While it is not unreasonable for a person in Mr Tillman's position to attempt to climb the fence in those particular circumstances, Mr Tillman did what was reasonable in the circumstances by seeking some help by getting his brother-in-law to move his vehicle so that it could be used to assist climbing the fence.

57 The question is whether a reasonable person in Mr Tillman's position would have done what he did. Kelso says that he would not. If the issue was only one of access to medication, one of Mr Tillman's children could have gone to the room collected the medication and passed it through the fence to Mr Tillman. That, however, was not the issue, although undoubtedly it was a significant factor in leading Mr Tillman to decide to try to climb the fence. A reasonable person probably would not have climbed the fence if the sole aim had been to gain access to the medication. However, that was not the sole aim. The Tillman family had driven for several hours from Brisbane to Moree to attend a family function. They had attended the family function, and it was late at night. They had paid for accommodation in the motel and were entitled to access to that accommodation. If proper warning had been given that the gates would be locked at 11 p.m. or suitable alternative access arrangements had been made and Mr Tillman had decided to climb the fence, rather than waiting for someone to open the gate after they had been reached by telephone, it would be a simple matter to find that it was unreasonable for him to do so. Mr Tillman, however, was faced with a situation where he was wrongly excluded from the motel, took reasonable steps to obtain entry without climbing the fence, and, after doing so, had no reasonable alternative, as I have found, available to him. The circumstances were highly unusual, but made it such that a reasonable person in Mr Tillman's position would, I find, have done exactly the same thing. Therefore there is no contributory negligence.

58 Similar considerations apply to the defence of voluntary assumption of risk. Mr Tillman knew that climbing the fence involved a risk, and indeed, this risk was obvious. When he decided to climb the fence, he assumed this risk. However, he did not do so voluntarily. The negligence of the defendant in failing to provide reasonable alternative means of access to the motel after the gates were locked left him with no reasonable alternative action in the circumstances.

59 Kelso also submits that the risk of falling while climbing a fence was an "inherent risk" within the meaning of the Civil Liability Act, s 51. Subsection (2) provides, 'An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.' In the circumstances of this case, the exercise of reasonable care and skill by Mr Tillman is irrelevant. Kelso failed to exercise reasonable care and skill, by forcing Mr Tillman into the position where he had no choice other than to do as he did. That is the point of cases like Sayers and Caterson. There is no suggestion that Mr Tillman did not exercise proper care and skill when he was trying to climb the fence. The question of what skill might have been relevant if, for example, there were evidence that Mr Tillman was intoxicated, or was not looking where he was going. There is no such evidence. In the circumstances I find that although the risk of falling while climbing offence was obvious, it was not "inherent" within the meaning given by s 51(2), and s 51 does not apply.

Quantum of damages - the harm to Mr Tillman

60 Mr Tillman claims that he suffered the following harm:

a. Blow to head.

b. Injury to cervical spine with fracture of transverse processes of vertebral bodies.

c. Trauma to left shoulder, especially left acromio-clavicular joint and associated tendons of left shoulder.

d. Loss of function in left shoulder.

e. Strain of right wrist.

f. Injury to lumbar spine, including tearing of inter-spinous processes of lumbar spine (L2 and L3) and trauma to the L3/L4, L4/L5 and L5/S1 regions.

g. Injury to left sacroiliac joint.

h. Trauma to left hip.

i. Aggravation and worsening of pre-existing depressive condition, leading to tendency to erectile dysfunction.

61 He claims the cost of past treatment and medication and also future treatment and medication. He also claims for loss of past income, for loss of future earning capacity, and for past and future domestic care.

Non economic loss

62 Dr Cooke’s opinion is that Mr Tillman suffered a quite severe injury to his shoulder, which required surgical treatment, and that he also suffered a "traction" fracture to two vertebrae. These injuries clearly rendered Mr Tillman unfit to work for some time and caused him severe pain. He required hospitalisation for the procedure on his shoulder. Most of the other injuries were treated conservatively or by physiotherapy or similar treatment.

63 After the surgery to the shoulder, Mr Tillman says that his shoulder has improved, and Dr Cooke regards the shoulder condition as a virtually complete recovery.

64 Mr Tillman suffered some injuries to his head, wrist and ribs, but these resolved quite quickly. The other matters of which he complained did not.

65 Mr Tillman also complained of pain in his lower back, radiating to his leg. This is now his main complaint. Dr Cooke cannot find an organic cause of this pain; neither can Dr Sharland, another treating doctor, who is currently caring for him in Darwin. The complaint of leg pain (as opposed to left hip pain) is relatively recent. Both Dr Cooke and Dr Sharland formed the view that the fall at Moree probably caused the traction fractures, which resulted in some minor exacerbation of a degenerative condition of the spine. The fall at Moree was causal, but the result, while a factor in determining non economic loss, does not affect Mr Tillman’s capacity to work. Dr Davies considers that this is a factor, which impedes his capacity to work. I prefer to rely on the evidence of Dr Cooke and Dr Sharland, the treating doctors, who take a contrary view, rather than the medico-legal experts who examined him for Kelso, and of Dr Davies.

66 Dr Cooke, in particular, cannot be said to be particularly favourably disposed towards Mr Tillman, but he certainly acknowledges that Mr Tillman has suffered a severe injury as a result of the fall at Moree, and some exacerbation of lower back problems. Dr Cooke considers that Mr Tillman’s lower back problem would resolve if he lost weight and continued with physiotherapy. He does concede that the damage to the spinal vertebrae could be related to the pain Mr Tillman complains of. Dr Cooke is unable to say conclusively that the fall at Moree is unrelated to Mr Tillman's current pain. He is the plaintiff's witness, and I cannot find that the current back pain is a result of the fall at Moree because the plaintiff is unable to discharge the burden of proof of that fact.

67 Dr Cooke considers, as do Dr Blue and Dr Sekel, Mr Tillman is capable of teaching or computer work, and I accept this opinion. Dr Davies, after reviewing the radiological material, considers that the back is unlikely to improve, and will probably deteriorate. I prefer the opinion of Dr Cooke to that of Dr Davies, who I note, examined Mr Tillman before his fall in January 2008.

68 Early in the 2007, Mr Tillman had CT-guided injections to the L4/L5 and L5/S1 facet joints in a hospital in Brisbane, but these did not assist him.

69 Before this accident, Mr Tillman suffered from diabetes, high cholesterol, and heart problems. The heart problems were the reason for his moving from the Northern Territory to Brisbane, and after he moved to Brisbane he began to see Dr de Leacey for psychiatric treatment. Dr de Leacey was unable to attribute any new psychiatric condition to the Moree fall, although he did say that Mr Tillman could not cope well with pain and physical adversity. I can summarise his evidence by saying that he found some exacerbation of Mr Tillman's depressive disorder as a result of the fall at Moree. While this exacerbation would found a head of general damages or damages for non economic loss, it did not, in my view, affect Mr Tillman's ability to work.

70 No doctor was prepared to say that any consequence of the Moree fall was a causal factor in Mr Tillman falling down the stairs in February this year.

71 The medical evidence from both Dr Cooke and Dr de Leacey does not support a finding that the fall at Moree was a significant factor in producing Mr Tillman's sexual problems, although both he and Mrs Tillman said that those problems were not apparent before the Moree fall. It is well known that age and diabetes, let alone depressive psychiatric disorders, can affect sexual activity, and all these factors affected Mr Tillman before he fell at Moree. However, because on the evidence of both Mr and Mrs Tillman his sexual dysfunction became apparent only after the fall at Moree, I find on the balance of probabilities that the fall was a significant cause of his current sexual problems. That, of course, sounds only in damages for non economic loss.

72 I find that Mr Tillman did suffer significant non economic loss and I would assess him, as a result of the Moree fall at 35% of a most extreme case. He is therefore entitled to damages of $157,500 for non economic loss.

Economic loss - past earnings

73 After the accident, Mr Tillman could not work at all for some weeks, and then attempted to return to work with Anglicare, but found that he could not work full-time because of his injuries. His employment was terminated in November 2004.

74 At one point, Mr Tillman was offered a return to part time work, and he signed a copy of a written offer, but in fact did not work in accordance with the terms of the document. There was a dispute about the intention of the parties in relation to this letter. This dispute I find to be irrelevant to the issues I have to determine in this case. I accept that during 2004, and up until the time when Mr Tillman had surgery on his shoulder, he was not able to work full-time. As a result of this injury, there is no doubt that Mr Tillman's capacity to do household tasks and any type of work has been reduced. This injury also affected his psychiatric state, and because of increased pain he has increased his intake of analgesics, including narcotic analgesics at times. Before the fall in January 2008, he was occasionally taking Panadeine for pain relief, but nothing stronger. On the evidence, I could not find that any of his current analgesic medication is taken to relieve any symptoms that relate to the fall at Moree.

75 Mr Tillman has developed significant skills with computers. In December 2004, he began casual work as an administration officer at the Queensland University of Technology. He also obtained a job as a part-time teacher of computer studies in the TAFE system, but gave that work up when he was admitted to hospital for his shoulder operation. In June 2005 he began work as an IT Help Desk consultant at QUT, and he continued to work in this capacity on a part-time basis until he returned to the Northern Territory at the end of 2007. Although he was originally working 35 hours per week at QUT, his evidence was that he rarely completed these hours and was working for about 20 hours per week for most of the time. His tax returns are consistent with this evidence.

Future earning capacity

76 On 19 January 2008, Mr Tillman fell down the back stairs of the house at Humpty Doo and injured his left shoulder again. He does not claim in respect of that injury, and I could not find, on the balance of probabilities, that they had any causal relation with the fall at Moree. Subsequently Mr Tillman had a further injury to his left shoulder, which caused him to refuse employment that had been offered to him earlier. He said in his evidence that he had not sought work during 2008.

77 Although Dr Davies, who examined Mr Tillman in September 2007, found that he was not able to work at all, it is clear that he does have considerable skills, both in relation to the employment of aboriginal people, and with computers. His evidence was that there was suitable work in the Northern Territory if he was physically able to do it, and that he wanted to work. Because of his injuries, between the beginning of 2008 and the date of hearing, he said he had not been able to find suitable part-time work.

78 Kelso suggests that he is now capable of returning to work full-time, if that work does not involve physical work, such as lifting or walking long distances.

79 I find on the balance of probabilities that if he had not injured his shoulder and exacerbated his back condition in the fall at Moree, he would now be able to do some work on a full-time basis. I accept that any work he did, because of his own preference, would probably be in the non-government or community sector, and would not have a particularly high rate of remuneration. I find that, once he has recovered from the trauma to his shoulder suffered early in 2008, he should be able to work 40 hours per week.

80 If his psychiatric condition prevented him from working, the exacerbation of that condition resulting from the fall at Moree is not such as to impact on his capacity to earn, either in the past or in future. The plaintiff's case is that his condition has become significantly worse during 2008, but I cannot attribute any deterioration to the fall at Moree. Any loss of earnings must be regarded as a consequence of the fall in January 2008 or Mr Tillman's choice to live in a rather remote part of the Northern Territory.

Calculation of damages

81 I find that Mr Tillman was unable to work at all for 3 months from 9 May 2004. After that, until March 2005 when he had his shoulder operation, he was able to work for 20 hours each week. He was also unable to work for a period of 3 months in 2005 after his shoulder surgery. From June until December 2005, he was capable of working 20 hours per week. After that, I find he has been fully fit, in a physical sense, for full-time work.

82 In future, disregarding, as I must, the subsequent injury to his shoulder in January 2008, I find that he will be capable of working 40 hours per week until he turns 65. There is no loss of future earning capacity as a result of the Moree fall.

83 Before the Moree injury his payments from Anglicare amounted to $627 per week net. In the tax year ended 30 June 2005 his income appears to have been $328 per week net, and in the following year, approximately the same, that is a loss of approximately $290 per week.

84 I propose to award him damages for lost earnings of the past from 9 May 2004 for three months at $627 per week (12 X 627=$7524); from 9 August 2004 until 6 March 2005 at $290 per week (30 X 290= $8700); from 7 March 2005 until 7 June 2005 at $627 per week (12 X 627=$7524), and from 7 June 2005 until 31 December 2005 at $290 per week (25 X 290=$7250). The total damages for loss of past earnings are $30,998. He is also entitled to superannuation at 9% on this amount ($2790).

Domestic assistance

85 I find that for the three-month period immediately after the fall at Moree, and for a similar period following the operation on his shoulder, Mr Tillman required assistance in virtually every aspect of his life, including showering, dressing and eating. For this period he would, but for the Civil Liability Act 2002, s 15, be entitled to damages for six hours per week of gratuitous assistance provided by his wife and family. However, in Harrison v Melhem [2008] NSWCA 67, the Court of Appeal made it clear that the “gratuitous attendant services" to which that section refers must be provided over a continuous period of 6 months. The effect of the section is that in these circumstances, Mr Tillman is not entitled to damages for the services provided by his wife and family.

86 The doctors agree that Mr Tillman, as a result of the fall at Moree, is no longer capable of doing heavy physical work. The evidence is that before the Moree incident, he did all the gardening and vehicle maintenance work for the household and also assisted with cleaning, shopping etc. Mrs Tillman generally did the cooking. Since she has been working at Katherine and Mr Tillman has been living with other members of the family near Darwin, the evidence is that other family members have done all the household work. This type of domestic assistance is of a different kind to the domestic assistance referred to in s 15. It is an expense which Mr Tillman must bear for the rest of his life, no matter what his domestic situation, because his injuries prevent him from doing the physical work.

87 Kelso concedes that it is appropriate to allow a sum of $22,240 for past domestic assistance.

88 It is appropriate to allow him 4 hours per week for future gardening and household assistance and car maintenance at a rate of $25 per hour. The life expectancy of a 52-year-old male is 33.3 years. Mr Tillman is entitled to $85, 570 (100 X 855.7) for future domestic assistance.

Out of Pocket Expenses

89 There is a dispute as to the amount that should be allowed for past out-of-pocket expenses. The possession is complicated by the fact that Mr Tillman requires medical attention for a number of conditions, many of which have no relation at all to the fall at Moree. Kelso object to a number of the items claimed in Mr Tillman's schedule of expenses. I find that some of these objections are justified. For example in view of my findings as to the nature and extent of various aspects of Mr Tillman's condition, it would not be proper to allow for example the expenses claimed in respect of the Arafura Medical Centre, which appears to be Darwin, and apart from maintenance of antidepressant medication, no medical pharmaceutical expenses incurred since Mr Tillman moved to the Northern Territory at the end of 2007 could be related to the fall at Moree. Similarly, the expenses claim for Dr Baddeley would fall beyond the scope of the compensation payable. The total amount allowed for medical expenses (not including pharmaceutical costs) is $12,831.

90 Pharmaceutical costs have been claimed up to 14 July 2007, and I will allow two thirds of this amount, namely $6,111, on the basis that one third of his medical costs were associated with pre-existing conditions. I find that although the defendant argues that some of the other claims are not substantiated, they are referred to in the Medicare and health fund documentation (including the North-West Brisbane Private Hospital and the pharmaceutical expenses) and I infer that the original receipts are held by those organisations or were submitted to them.

91 Mr Tillman claims nearly $5,000 for travel expenses. These were claimed in respect of visits to particular medical practitioners in Brisbane and in the Northern Territory. Except for the cost of one visit to Dr Sharland, the medical expenses of the Northern Territory are not related to the fall at Moree and will not be allowed. It is reasonable to allow a small sum to represent the cost of travel by Mr Tillman to doctors. However as I have found that as he has not proved that his leg condition, his present main complaint, is related to the fall at Moree, this amount will be modest and I will allow $250.

92 The amount allowed for past out-of-pocket expenses is $19,192.

93 Kelso concedes that Mr Tillman requires ongoing physiotherapy and there will be an amount of $9,237 allowed for this purpose. I also propose to allow a further buffer of $12,000 to cover the cost of pain management counselling sessions and future medication for pain relief. The amount allowed for future out-of-pocket expenses is therefore $21,237.

94 There will be a verdict for the plaintiff in the sum of $358,719.