Georgeson v Nominal Defendant No. Scciv-00-1216

GEORGESON v NOMINAL DEFENDANT
[2003] SASC 426
Civil

DOYLE CJ: Mr Georgeson has sued the nominal defendant for damages pursuant to s 116 of the Motor Vehicles Act 1959 (SA) (“the MVA”).
He claims damages for personal injuries sustained on 7 December 1997, when a motorcycle he was riding collided with an uninsured motorcycle being ridden by Mr Whitehead.
He brings his action against the nominal defendant under s 116(2) of the MVA.
The issues between the parties are these. First, was the place where the collision occurred a road for the purposes of s 116(2) of the MVA? Unless it was, the nominal defendant is not liable to pay the damages that could have been recovered against Mr Whitehead if he had been an insured person. Second, did Mr Whitehead owe Mr Georgeson a duty of care? Third, was Mr Whitehead negligent? Fourth, was Mr Georgeson guilty of contributory negligence?
I was not asked to assess Mr Georgeson’s damages. He suffered severe injuries.
Lake George
I make the following findings.
The collision occurred on the dry lake bed of the southern part of Lake George at Beachport, in the south-east of South Australia. Lake George is close to the coast. The southern end of Lake George is delineated from the balance of the lake by a headland called Wooley Point, which curves across the southern part of Lake George. The southern part of the lake is roughly circular. It is about three kilometres across. It is between seven square kilometres and nine square kilometres in area. From here on I will refer to the southern part of Lake George as “the lake”. When I need to refer to the balance of the lake I will refer to it as “the main lake”.
Between about mid-December and April (depending on the season) the lake bed is dry, or mainly dry. Sometimes it is dry for longer than that. Sergeant Patton, a policeman who was stationed at Beachport at one stage, said that for several years during his time there the lake bed was dry for the whole of the year. In a wet season the lake bed would be dry for a shorter period of time. My impression is that the main lake is under water for all or most of the year.
When dry the surface of the lake is mainly quite firm. It is mainly shell grit and sand. There are some softer clay patches, particularly near the northern end.
On the northern and western sides the lake is bounded by a conservation park and open land. In the south-west corner is the town of Beachport, with a permanent population of about 400 people. At peak holiday times the population increases to several thousand people. The southern part of the lake is bounded by a narrow spit of open land with the beach and Rivoli Bay on the southern side of the spit of land. The south-eastern corner of the lake is bounded by open land and further housing. The eastern side of the lake is bounded by farming land.
The lake bed is unalienated Crown land. It is not fenced in any way. Access to the lake and lake bed is available from the adjacent land right around the perimeter of the lake on the northern, western and southern sides. Access to the lake bed for vehicles is gained by a number of fairly well-defined tracks leading from the adjacent land to the lake bed. People are able to move from the adjacent land to the lake bed, on the evidence I heard, at will and pretty well wherever they choose. In short, when the lake bed is dry it is easily accessible to people and to motor vehicles.
There are no signs prohibiting or discouraging people or motor vehicles from moving on to and passing over the lake bed. The evidence of the local policemen who were called satisfies me that they do not discourage the use of the lake bed. To the contrary, they have encouraged local children using unregistered motorcycles to ride them on the lake bed, rather than on public roads. The local population and visitors to Beachport regard the lake bed as available for them to use at will.
Beachport is a popular holiday resort. During the holiday seasons a lot of visitors stay there. There are at least two caravan parks. Tourists and people from surrounding areas regularly make day trips to Beachport throughout the year, and particularly of a weekend.
The physical attractions of Beachport include a conservation park on the western side of the lake and around to Wooley Point in the north, the nearby ocean and ocean beaches, and the main lake with its water-based activities. Popular activities in the area, on the evidence I heard, include fishing (in the main lake and in the sea), camping, particularly around the area of the lake, driving four-wheel drive vehicles and riding motorcycles on trails and through sand hills in the conservation park, duck shooting (on and around the lake and the main lake), and boating and sailing on the main lake and, to a much lesser extent, on the lake.
I find that the area north-west of the lake, between the main lake and the ocean, is very popular with riders of motorcycles and drivers of four-wheel drive vehicles. They drive through that area all year round, alone and in small groups. The attraction appears to be trails and areas of sand hills. The area on the southern side of the lake is also a popular camping and recreation area.
The place where the collision happened
Mr Georgeson, Mr Tucker and Mr Whitehead, and some other friends, had spent some time riding their motorcycles in the sand hills north of the lake, adjacent to the main lake. They decided to ride on the beach in a south-easterly direction from Beachport. The other men returned to Beachport to refuel. Mr Georgeson, Mr Tucker and Mr Whitehead had brought motorcycles to the sand hills in utilities. It is not clear if they left those utilities at the sand hills, or drove them south to an area adjacent to a small lake called Lake Wooley. Lake Wooley is a small lake between the western side of the lake and the coast.
Mr Georgeson, Mr Tucker and Mr Whitehead rode on to the lake bed, adjacent to Lake Wooley, using a well-defined track. They spent a few minutes riding their motorcycles on the edge of the lake, and on the lake bed. They then set off across the lake bed in a south-easterly direction, intending to cross the southern half of the lake bed and to leave the lake bed using a well-defined track adjacent to Mr Jordan’s home. Mr Jordan’s home is on land at the south‑eastern corner of the lake. From there they intended to cross the main road and ride onto the beach.
When the three men were about half-way across the lake, or a little more, the motorcycle ridden by Mr Whitehead collided with the motorcycle ridden by Mr Georgeson. I find that the accident occurred a little more than half-way across the lake bed, and about two hundred metres or three hundred metres from the southern edge of the lake. The place was a little north-west of an area adjacent to an outlet drain which runs across the spit of land referred to, from the lake to Rivoli Bay. Just north of this drain there is an area of land, marked on the plan Exhibit P2, through which there is some form of drain leading to the outlet drain. It is marked on the plan Exhibit P2 as a shaded area. The collision occurred a little north-east of this area, or perhaps east of it, and close to the number 478 (indicating section 478) marked on Exhibit P2.
Did Mr Georgeson suffer injury “… arising out of the use of an uninsured motor vehicle on a road …”?
The MVA contains a definition of “road” in s 5 which is as follows:
“road means –
(a) a road, street or thoroughfare; and
(b) any other place commonly used by the public or to which the public are permitted to have access”.
Neither party suggested that the place where the collision occurred falls within sub-para (a) of the definition. The issue is whether it falls within sub-para (b).
The application of this definition has been considered in a number of cases. I adopt and apply the following observations by Debelle J in McBain v Reyne and Others (1998) 69 SASR 580 at 598:
“ Paragraph (b) refers to “any other place which is either commonly used by the public or to which the public are permitted to have access”. The expression “any other place” is not to be read ejusdem generis with the words “road”, “street” or “thoroughfare” in par (a) of the definition: Boyton nominal defendant [1980] 2 NSWLR 509; Elliott v Hentschke (1984) 36 SASR 481. The expression “any other place” obviously has a wide connotation and it should be given the unrestricted meaning it would normally bear. It is difficult to conceive of an expression with a capacity to signify more widely all places other than conventional streets or roads. It is capable of referring to paved thoroughfares which are not streets or roads in the conventional sense, such as a thoroughfare providing access between a public highway and a farm house; or it might refer to reserves or areas of open space of all kinds; or it might refer to paved areas within large industrial commercial enterprises; or it might refer to a road across private property linking a public road to a winery from which cellar door sales are made. There is no limit as to the kind of place which might qualify as a road other than the two adjectival phrases “commonly used by the public” and “to which the public have access.”
I also adopt and apply the following observation at 600:
“ The ordinary meaning of the expression “commonly used by the public” denotes constant and frequent use of an area by the public generally. The question whether a place is commonly used by the public is essentially a question of fact; the test is simply, has the place been commonly used by the public?: Marklew v Allen (1974) 9 SASR 32 at 33-34 and Schubert v Lee (at 592).”
As Debelle J says, the question with which I am now dealing is essentially one of fact.
The evidence satisfies me that the location of the collision is a road for the purposes of s 5 of the MVA. On the evidence, it is a clear case.
The plaintiff called a number of witnesses who gave evidence of the use made of the lake bed. Some of them were residents of Beachport. Some were people who lived in the surrounding areas, and were regular visitors to Beachport. Some were regular holidaymakers at Beachport. The witnesses included several men who had been stationed at Beachport as police officers. Most of these witnesses gave evidence of the use they had made of the lake bed. They also gave evidence of seeing others using the lake bed, and in particular of seeing tracks left by motorcycles and motor vehicles. I accept the evidence of these witnesses. There was an element of imprecision at times in their evidence. This is understandable, bearing in mind that they described a pattern of use of the lake bed over the years. Nevertheless, allowing for that, I accept as correct the general pattern of usage that they described. I have no doubt that all of these witnesses were truthful and, by and large, quite reliable.
I make the following findings.
The lake bed is mainly dry for about one-third of the year or longer. When it is dry, the surface is firm and hard with the possible exception of a few patches. The lake bed is used by a wide range of people, both locals and visitors. It is used in many different ways. Motorcycle riders ride on the lake bed for recreation. They also use it as a shortcut to get from a place on one side of the lake to a place on the other side of the lake. It will often be quicker to cut across the lake bed, rather than go around the perimeter of the lake using the bitumen road through Beachport and various tracks on either side of the lake. There is substantial use of the lake bed by motorcycles.
I find that the residents of Beachport and of surrounding areas include many people who are enthusiastic riders of motorcycles. I find that many young children who live in Beachport, and in the surrounding regions and who visit the town, have the use of unregistered motorcycles, and that they are encouraged by their parents to use them on the lake bed. As well there are many adult motorcycle riders who live in the area and who come to Beachport.
The lake bed is used as a thoroughfare in particular to cross from the track alongside Mr Jordan’s house in the south-east corner, to the track adjacent to Lake Wooley on the western side of the lake. That is, to make the trip made by Mr Georgeson on the day in question. But it is used as well as a shortcut from a number of other points on the perimeter of the lake, and thence across the surface of the lake bed. I have referred to the recreational use of the lake bed by motorcyclists. By this I mean riding for pleasure on the lake bed.
I find that drivers of four-wheel drive vehicles also use the lake bed as a shortcut in much the same way. I find that to a lesser extent they drive on the lake bed for recreational purposes. In addition, I find that people who are fishing and duck shooting drive across the lake bed in various directions to get access to places to fish and to shoot ducks. In this context the fishing will take place in the main lake. Fishermen sometimes find it convenient to cut across the lake bed before travelling further north to a suitable fishing point on the main lake. Duck shooters set up hides for shooting on the bed of the lake. They drive across the lake bed with material used to make the hides, and with equipment used for duck shooting. At the end of the season they drive across the lake bed when they remove the hides. Apart from that, the drivers of four-wheel drive vehicles are likely to be people who have come to the area to drive their vehicles off main roads. They drive on the lake bed as part of that activity, and, as I have already said, as a convenient shortcut to get from one point to another on the perimeter of the lake.
I find that local people ride horses on the lake bed. This activity is likely to take place anywhere on the lake bed, but takes place mainly on the western side of the lake and on the southern half of the lake.
I find that many people camp on the fringes of the lake, particularly on the spit of land at the southern end of the lake and in the conservation park on the north-western side of the lake. I find that the campers move on foot and in vehicles on to the lake bed. I accept that this is mainly at the fringes, but on occasions these people move out well on to the lake bed.
I find that people walk on the lake bed.
I find that the locals in particular, and campers and people staying at caravan parks, use the lake bed as a place for children to ride small motorcycles, and to learn to ride motorcycles. I find that the locals use the lake bed as a place where they can teach children and teenagers to drive motorcars. Again, I accept that this occurs mainly on the southern fringes of the lake.
I find that locals and visitors, mainly young people, have parties on the lake bed from time to time. Once again, this is probably mainly within a few hundred metres of the edge of the lake.
I have already mentioned the duck shooters. As is obvious, apart from driving on the lake bed they are on the lake bed when they are shooting. My impression is that the duck shooting occurs adjacent to bodies of water, and so I assume that when it takes place on the lake bed it takes place at a time when there are still patches of water on the lake bed.
I find that children ride bicycles on the lake bed. Again, this is mainly on the fringes.
I find that at holiday times, when the population of the town increases considerably, local police occasionally carry out patrols in motor vehicles on the lake bed, checking on the drivers of motor vehicles and motorcycles on the lake bed, and checking on activities taking place on the lake bed.
On the evidence there are other activities that take place on the lake bed, including bird watching.
I accept that the most intensive use of the lake bed occurs at the fringes of the lake, and probably within one hundred metres or two hundred metres of the edge of the lake. This is particularly true of the area adjacent to the spit of land at the southern end of the lake, and of the area adjacent to the conservation park on the northern side of the lake. But I find that there is a significant amount of use of the lake bed apart from that, by people who travel across it for one reason or another from east to west and from north to south and vice versa. As well, there are other people who, for one reason or another, are simply moving around and about on the lake bed.
On the evidence before me there is substantial use of the lake bed as a whole. However, I find that the greater proportion of the use occurs in the southern half of the lake bed, below and slightly above the hundred line which runs across the lake bed at the position indicated on the Exhibit P2. The accident occurred at a place a little below and south of the hundred line.
For the purposes of this case I am concerned only with the place where the accident happened. However, the overall use of the lake bed is relevant to some extent. The use made by the public of the place where the accident happened is part of the overall use of the lake bed.
I find that the southern part of the lake is commonly used by the public when the lake bed is dry. It is used for many and different purposes, and is used to a significant extent by the public in motor vehicles and on motorcycles. I find that motor vehicles and motorcycles not infrequently drive across the part of the lake bed, or near that part, where the collision occurred. This use of this part of the lake bed is part of the pattern of use of the lake bed as a whole.
Although this use of the lake bed is seasonal, in most seasons being for about one-third of the year, and at times for longer, the use of the lake bed is long-standing, and is quite frequent. I accept that there will be times, like the day of the accident, when no one else is in sight on the lake bed. It is, after all, a fairly big area. But I have no doubt at all, on the evidence before me, that the usage of the lake bed by vehicles is quite frequent.
I find that the place where the collision occurred is commonly used by the public when the lake bed is dry. I find that it is a road for the purposes of the MVA.
The place where the collision occurred is, to some extent, uncertain. However, I find the southern part of the lake as a whole is a road. I find also that a strip of land running from about adjacent to Lake Wooley across the lake bed to the track adjacent to Mr Jordan’s house is a road. The place where the accident occurred is within each of these areas.
Duty of care
Mr Walsh QC, counsel for the nominal defendant, submits that Mr Whitehead did not owe a duty of care to Mr Georgeson.
Mr Walsh submits that Mr Georgeson, Mr Tucker and Mr Whitehead were engaging in a dangerous activity (in the form of skylarking on their motorcycles), that Mr Georgeson knew the activity was dangerous, that he fully appreciated the extent of the danger, and that by participating in the skylarking he voluntarily accepted the inherent danger of injury to himself.
I reject that submission.
I accept that when Mr Georgeson and the others were riding their motorcycles in the sand hills, there were dangers inherent in that activity that Mr Georgeson appreciated and accepted. But that activity was at an end once they left the sand hill area and began to drive to the lake.
I accept that before setting off across the lake the three men spent some time riding their motorcycles on the fringe of the lake. This may have included some racing, some “donuts” and causing the motorcycles to slide and to spray sand or dirt. I accept Mr Georgeson’s evidence that he played little part in this, but I do accept that some such activities occurred. I also accept the evidence that Mr Georgeson and his friends, from time to time, engaged in this sort of activity on their motorcycles. But that activity had also come to an end when the three men set off to ride across the lake to the track adjacent to Mr Jordan’s house. In any event, I do not regard that kind of skylarking as involving a risk of injury from negligent riding such that one would conclude that Mr Georgeson voluntarily accepted the risk of injury from that sort of activity. To my mind that was a relatively harmless activity.

In any event, when the collision occurred Mr Georgeson and the other two men were riding across the lake bed, and immediately before the collision they were some distance from each other. The skylarking which had taken place on the fringe of the lake was at an end. There is no reason to conclude that the whole activity of riding their motorcycles that day had, running through it, the thread of a constant voluntary acceptance by Mr Georgeson of the danger that might ensue from any act of skylarking that might be undertaken at any time by any one of his companions that day.
I allow also for the fact that it was possible that one of Mr Georgeson’s companions might attempt a “stunt” of some kind while they were crossing the lake. But there is simply nothing to suggest that Mr Georgeson voluntarily accepted the risk of injury attributable to one of his companions undertaking a dangerous “stunt”, without warning, at some time while they were riding across the lake bed. Neither Mr Georgeson nor his companions, in the course of the journey on the lake bed and prior to the collision, were doing anything that would have suggested to Mr Georgeson that he should anticipate a dangerous “stunt”.
I find that at the time of the collision, or immediately prior to it, Mr Georgeson and his companions were riding in a relatively normal manner in a south-easterly direction across the lake bed. I do not accept that the skylarking, as I have called it, on the fringes on the lake was an activity leading to the conclusion that Mr Georgeson voluntarily accepted the risk of injury caused by the negligent riding of a motorcycle by his companions. But even if it was, that activity had come to an end, and there was no reason for him to anticipate its resumption in the course of the journey.
It is for those reasons that I reject the submission by Mr Walsh. I find that at the time of the collision Mr Whitehead owed to Mr Georgeson a duty to take reasonable care for his safety.
The collision
Mr Georgeson gave evidence that he set off across the lake bed first. After travelling about one kilometre he looked back. He was travelling more or less in a straight line to the south-east. Mr Tucker was about one hundred metres or one hundred and fifty metres behind him, following the same line but on a line about two or three metres to Mr Georgeson’s right. Mr Whitehead was further back. Mr Georgeson was travelling at about one hundred kilometres per hour.
A little later he looked back again. Mr Tucker was in the same position. Mr Whitehead was now about fifty metres out to the right of Mr Georgeson and Mr Tucker, and overtaking Mr Tucker. Later Mr Georgeson saw that Mr Whitehead had almost drawn level with Mr Georgeson, was about fifty metres out to Mr Georgeson’s right, and moving to Mr Whitehead’s left and closer to Mr Georgeson.
Mr Georgeson kept going. He looked again, and saw Mr Whitehead about twenty five metres to his right, and still drawing closer.
Then Mr Georgeson looked again. He saw that Mr Whitehead’s bike was in a slide towards Mr Georgeson, Mr Whitehead leaning to his right, and the front wheel of the motorcycle turned to the left. At this stage Mr Whitehead was only about two metres away, and almost immediately there was a heavy impact and Mr Georgeson was flung from his bike.
That evidence suggests that Mr Whitehead drew about level with Mr Georgeson, and about fifty metres to his right, and then began to curve to the left and towards Mr Georgeson. It suggests that he then put his bike in a slide to the left, or for some reason lost control, and the collision occurred.
Mr Tucker gave similar evidence. He said that Mr Georgeson led off, then Mr Tucker then Mr Whitehead. Mr Tucker remained behind Mr Georgeson at all times, and slightly to the right of the line of travel of Mr Georgeson.
Mr Whitehead overtook Mr Tucker on Mr Tucker’s right, doing about one hundred and ten kilometres per hour. He went past Mr Tucker following an arc out to the right of Mr Tucker and then back to the left in the general direction of Mr Georgeson.
He said that Mr Whitehead kept moving towards Mr Georgeson. He said (T193) that Mr Whitehead:
“… just kept going straight around in a line towards Robbie [Georgeson] and then he tried to pull away a little bit to the right but it was too late.”
When asked what he saw Mr Whitehead do he said:
“I saw him lay his bike down to the right-hand side, leaning, like as he got towards Robbie I saw him lay his bike down to the right and tried, like, obviously trying to pull away.”
Then the collision occurred, the two motorcycles being side-on.
That evidence also suggests that Mr Whitehead put his bike in a slide to the left, and misjudged the situation. Alternatively, and less likely, that he lost control for some reason and that the bike went into a slide.
Mr Walsh suggested to each witness in cross-examination that the two motorcycles had travelled close together and parallel for some distance, and that they then “came together”, presumably due to inattention on the part of each rider. That version of events was rejected by Mr Georgeson and Mr Tucker.
Mr Walsh suggested that Mr Georgeson was re-constructing events. Mr Georgeson agreed that after the accident he told ambulance officers and possibly doctors that he had no memory of events. He agreed that he may have said the same when Mr Whitehead visited him in hospital. But Mr Georgeson said he was badly concussed, and his memory of events leading up to the collision later came back to him.
I accept that evidence of Mr Georgeson. On the evidence before me there is no reason to doubt that his memory of events could have improved as the concussion wore off. There was no medical evidence to suggest that this could not occur. However, I do accept the submission by Mr Walsh that Mr Georgeson’s memory might be somewhat patchy, and that his evidence needs to be treated with some care.
As to Mr Tucker, Mr Walsh’s main attack was based on two statements that Mr Tucker had made to police not long after the accident, and a further statement to an insurance investigator. In effect, in these statements, Mr Tucker said that he did not see much, but he saw Mr Georgeson and Mr Whitehead riding alongside each other for a time, and then they seemed to “come together”. That seemed to be the basis of the case being put in cross-examination.
Mr Tucker admitted these statements. He said, in effect, that he wanted to avoid taking sides. He said that once he had not told the truth in the first statement to the police (and he admitted that it was not the truth) he felt committed to sticking with that story.
I observed Mr Tucker carefully. He admitted that he was sympathetic to Mr Georgeson, and that he understood the significance for the outcome of the case of his evidence. I fully realise the danger that a convincing witness may mislead a court on a matter like this. But, at the end of the case for the plaintiff, I was inclined to accept that Mr Tucker was telling the truth.
In any event, when Mr Whitehead gave evidence for the defendant he confirmed what Mr Georgeson and Mr Tucker said. In a nutshell he said that Mr Georgeson was ahead of him. He referred to a stage at which he was about fifty metres or one hundred metres to the right of Mr Georgeson. He travelled for a short time like this, about level with him or shortly behind. Then Mr Whitehead said he turned in an arc to his left and towards Mr Georgeson. He had his motorcycle under full acceleration so that he could draw level with Mr Georgeson while curving across the fifty metres or so of lake bed that lay between them. He then leaned over to his right, to put his motorcycle into a curving slide to his left, and in the general direction of Mr Georgeson. He called it a “power slide”. He said that he did it just for fun. But he misjudged the situation, could not pull his motorcycle out of the slide and the two motorcycles collided. He realised the danger only when they were about two metres or three metres apart. My view is that this evidence confirms the evidence given by Mr Georgeson and by Mr Tucker.
Again, Mr Walsh suggested that Mr Whitehead was sympathetic to Mr Georgeson. No doubt he was, because they were friends. But I see no reason to reject his evidence. He appeared to me to be truthful.
I find that Mr Whitehead deliberately put his motorcycle into a “power slide” that caused him to curve to his left towards Mr Georgeson, as he began to draw near to Mr Georgeson’s line of travel. I find that he did this for fun, and for no other purpose. It was a manoeuvre that carried some dangers, although ordinarily it probably was not highly dangerous. In any event, it is clear that Mr Whitehead misjudged the situation and, having put his motorcycle into a slide, was unable to bring it out of the slide before the collision with Mr Georgeson occurred. I have no doubt that Mr Whitehead was negligent in misjudging the situation. In any event, I find also that he was negligent in undertaking the manoeuvre when and where he did.
There was some evidence from these witnesses and others at the scene of the accident, relating to tyre marks on the lake bed. I consider that the evidence is equivocal. If anything, it tends to support the case for Mr Georgeson. But as I am satisfied that Mr Georgeson, Mr Tucker and Mr Whitehead are telling the truth, there is no reason to concern myself with the tyre marks.
I find that Mr Whitehead was negligent, and that his negligence was the cause of the collision.
Contributory negligence
I find that Mr Georgeson was not guilty of contributory negligence. In all the circumstances the speed at which he was travelling was not unreasonable. He had no reason to anticipate that Mr Whitehead would undertake the “power slide” when and where he did. He had no reason to anticipate any danger from the mere fact that Mr Whitehead appeared to be moving towards him. His lookout was generally adequate. He looked up from time to time to see where Mr Whitehead was. It is clear from the evidence that the crucial events happened in a very short space of time, a matter of a few seconds. By the time Mr Georgeson realised that a collision might occur, it was too late to do anything about it. He was not guilty of contributory negligence in failing to realise, sooner than he did, that a collision might occur.
For those brief reasons, I am firmly of the view that Mr Georgeson did not fail to take reasonable care for his own safety. Under all the circumstances his conduct was reasonable. I acquit him of contributory negligence.
Conclusion
I find that Mr Georgeson suffered bodily injury arising out of the use by Mr Whitehead of an uninsured motor vehicle on a road. I find that Mr Whitehead was negligent. I find that Mr Georgeson was not guilty of contributory negligence. Accordingly, Mr Georgeson would be entitled to judgment against Mr Whitehead for his damages to be assessed. He is entitled to recover from the nominal defendant such damages as would have been payable by Mr Whitehead.
Pursuant to s 30B(1) of the Supreme Court Act 1935 (SA) I determine that Mr Georgeson is entitled to recover from the nominal defendant his damages to be assessed. I adjourn the assessment of Mr Georgeson’s damages. I give liberty to the parties to apply to the court for further orders and directions.

[2003] SASC 426

22 December 2003