Glover v Fuller (No 2)
[2023] ACTSC 12
•31 January 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Glover v Fuller (No 2) |
Citation: | [2023] ACTSC 12 |
Hearing Date: | 5 – 8 September 2022 |
DecisionDate: | 31 January 2023 |
Before: | McWilliam AsJ |
Decision: | (1) Judgment is entered for the plaintiff in the sum of $92,585. (2) Interest is payable on part of the judgment sum, in the amount of $310.95. (3) The defendant is to pay the plaintiff’s costs. (4) If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 3 is stayed until further order. |
Catchwords: | CIVIL LAW – Negligence – Personal injury – water sports accident involving motorboat towing a child in an inflatable tube with a pre-existing undiagnosed spinal condition – characterisation of risk – whether sufficient precautions taken to guard against risk of back injury – whether water sport of tubing a dangerous recreational activity – whether risk of injury obvious to a twelve-year-old child LIMITATION OF ACTIONS – Personal injury – whether proceeding out of time – where plaintiff was twelve years old at time of alleged breach – where plaintiff required benefit of legal advice and specialist opinion in order to determine whether injury was sufficiently serious to justify the bringing of a cause of action – action brought within time |
Legislation Cited: | Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5K, 5L, 5R, 5S, 13, 15, 16, 18 Limitation Act 1969 (NSW) ss 50C, 50D, 50F Marine Safety (General) Regulation 2009 (NSW) reg 33 |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 AEA Constructions Pty Ltd v Wharekawa; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176 |
Parties: | Jack Glover (Plaintiff) Daniel Fuller (Defendant) |
Representation: | Counsel A Black SC; D Crowe (Plaintiff) S Walsh (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Barry.Nilsson. Lawyers (Defendant) | |
File Number: | SC 281 of 2018 |
McWilliam AsJ:
In approximately late January 2015, when he was twelve years old, Jack Glover (the plaintiff) went “tubing” at Burrinjuck Dam in New South Wales, with his aunt and her partner, Mr Daniel Fuller (the defendant) and other children. This recreational activity involved the plaintiff being towed along the water by a motorboat in an inflatable circular tube, commonly described as a “biscuit”. While he was on the water being pulled along in the biscuit with the defendant driving the motorboat, he had an accident. The plaintiff has an ongoing back injury which he attributes to the accident.
This has given rise to the present proceeding, a claim in negligence against Mr Fuller. The claim is about whether the defendant (as owner and driver of the boat at the time of the accident) breached his duty of care, whether the accident caused the injury, and if so, what damages ought to be paid as compensation.
That may sound straightforward. However, without wishing to appear flippant by adapting a line from Shrek, the animated ogre in the film of the same name: this case is like an onion; it has many layers. They include a direct challenge to the plaintiff’s version of events as to how he came to suffer any injury. The parties are at odds as to how to characterise the risk that it is alleged the defendant relevantly failed to guard against. The plaintiff also had an underlying spinal condition, which was undiagnosed before the accident and which the plaintiff claims became symptomatic as a result of the accident. This too is in dispute.
Further layers added by the defendant are three statutory defences, those being:
(1) That the plaintiff is out of time to bring the proceedings because of the three-year limitation period prescribed by s 50C of the Limitation Act 1969 (NSW) (Limitation Act).
(2) That, if the plaintiff is found to have suffered injury resulting in loss or damage and it was as a result of an obvious risk of a dangerous recreational activity, then, by the operation of s 5L of the Civil Liability Act 2002 (NSW) (Civil Liability Act), the defendant is not liable.
(3) That, if the plaintiff is found to have suffered injury loss or damage and it was caused or contributed to by the negligence of the plaintiff, the claim is “defeated” or at least proportionately reduced: Civil Liability Act s 5S.
It is appropriate to deal with the limitation point first because it concerns whether the plaintiff can even bring the claim. The other two statutory defences rely upon factual findings of the Court as to what happened and will be addressed later in these reasons. That approach has been adopted cognisant of what was said in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11; 399 ALR 535 (Tapp) at [110], namely that the “risk” with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence.
Here, as the facts surrounding what caused the plaintiff’s injury are not clear, it is preferable to first squarely address what happened, then characterise the risk and assess whether reasonable precautions in response to the risk were taken, before addressing whether the injury that materialised was the product of an obvious risk and whether the recreational activity itself was dangerous within the meaning of the Civil Liability Act. The same reasoning applies to the defence of contributory negligence.
Statutory Defence: Is the plaintiff out of time to bring the cause of action?
The plaintiff commenced proceedings in this Court on 2 July 2018. The accident occurred in late January 2015. As the limitation defence was raised by the defendant, it was uncontroversial that the burden or onus for proving it rests with the defendant.
The answer requires some understanding of the words used in the statute and then an application of that statutory criteria to the individual facts of the case.
Understanding the statutory limitation period
As the accident occurred in New South Wales, the substantive law of NSW applies to the claim: JohnPfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [102]-[103]. The applicable law is the Limitation Act, s 50C(1) of which prevents an action on a cause of action from being maintained if brought after the expiration of a specified limitation period.
Of the options set out in the Limitation Act, the relevant period for the facts of this case is the “3 year post discoverability limitation period”, a phrase defined in s 50C(1)(a) of the Limitation Act to mean (emphasis added):
…the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff.
The Court’s task is to work out the date on which the cause of action in negligence was first “discoverable”, such that the limitation period commenced to run.
What is meant by “the cause of action is discoverable”?
The word “discoverable” is defined in s 50D of the Limitation Act as follows:
50D Date cause of action is discoverable
(1)For the purposes of this Division, a cause of action is
"discoverable" by a person on the first date that the person knows or ought to know of each of the following facts--(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
In Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454 (Baker-Morrison) Basten JA (Ipp and Macfarlan JJA agreeing) explained at [27]-[28] that:
(1) The word “fact” in this context describes “a composite of inferences or the result of an evaluation”.
(2) The “fact” that must have been discoverable is “the cause of action”.
(3) The “fact” contemplated by the legislation is a relationship between two things – the injury and the fault of the defendant: the relevant connection is one of causation’.
In the present case, as the plaintiff was twelve years old when the accident occurred, s 50F(3) is also relevant. It provides that facts, ‘that are known or ought to be known by a capable parent or guardian of the minor…are taken to be facts that are known or ought to be known by the minor’.
Applying the statute to this plaintiff’s circumstances
Dealing with each of the criteria in s 50D(1) of the Limitation Act, the issues requiring resolution are:
(1) When did the plaintiff know, or should the plaintiff have known, that the injury had occurred?
(2) When did the plaintiff know, or should the plaintiff have known, that the injury was caused by the fault of the defendant? and
(3) When did the plaintiff know, or should the plaintiff have known, that the injury was sufficiently serious to justify the bringing of the claim?
From the evidence, the chronology of events relevant to the limitation period is as follows:
Late January 2015 The plaintiff has a tubing accident and feels back pain immediately. It was a mild discomfort at first, with increasing pain over the few months afterwards. Plaintiff lives with mother and says he told her on the day of the accident Approximately late February 2015 The plaintiff tells his father about the incident. His father encourages the plaintiff to make an appointment to see a doctor. End April / beginning May 2015 The plaintiff makes an appointment to see Dr Aluwahlia, a General Practitioner (GP), through his father, but the plaintiff misses the appointment. June 2015 The plaintiff’s father tells the plaintiff and his mother to take the GP appointment more seriously. Plaintiff’s father makes a further appointment for the plaintiff to see the GP. 7 July 2015 The plaintiff sees the GP. He is referred for an x-ray of the lumbar spine and to Dr Howse (orthopaedic surgeon). 21 July 2015 The plaintiff obtains the x-ray of his lumbar spine. The report shows “a mild scoliosis of the lower thoracic and upper lumbar spine” and “bilateral pars defects of L5 and minimal forward slip of L5 on S1. The lumbar disc spaces are well preserved.” 17 August 2015 The plaintiff sees the GP for review. The GP records lingering pain due to a structural pre-disposition since the waterskiing incident, which should settle with physiotherapy (although this was not actually commenced until February 2016). If not, the plaintiff was to see a specialist. 3 November 2015 The plaintiff has a consultation with Dr Howse. Advised to have an MRI. 8 December 2015 The plaintiff undergoes an MRI of the lumbar spine. The MRI report was reviewed by the plaintiff’s father shortly afterwards, who noted that it showed spondylolisthesis with foraminal stenosis. He was aware this could be a painful and serious injury. 25 January 2016 The plaintiff returns to Dr Howse for review. He is recorded as still having discomfort, mainly after activity. Dr Howse refers him to the Canberra Physiotherapy Centre with a diagnosis of chronic extension injury. 4 February 2016 Canberra Physiotherapy Centre report to Dr Howse. Plaintiff discusses how injury occurred with father for the first time. Father suspects that there might be grounds for bringing a claim. He formed the view that they should wait to see what the treatment would do. He knew he had to wait and see whether or not the plaintiff’s injury was serious enough that it surpassed the relevant threshold of the Civil Liability Act in terms of a percentage of a most extreme case. August/September 2016 The plaintiff’s father takes him to see a solicitor (his business partner) for separate legal advice, as he does not want to advise his son. The solicitor advises the plaintiff to obtain information about causation, being the clinical notes from the doctors the plaintiff had seen. The plaintiff, through his father, reaches a conclusion that there were grounds for bringing a claim in September 2016.
The plaintiff contended that the three-year discoverability period commenced no earlier than July 2015 and that the likely commencement was January 2016, when the plaintiff received advice from a specialist orthopaedic surgeon.
The defendant contended that the cause of action was first discoverable before July 2015, because the steps the plaintiff took should reasonably have been taken earlier. If that is correct, the filing of the statement of claim on 2 July 2018 would be outside the 3-year limitation period.
When did the plaintiff know the injury had occurred?
The first question for discoverability is straightforward in this case. The fact that an injury had occurred was known by the plaintiff as soon as the accident happened. The plaintiff told his mother the same day.
The plaintiff saw his father regularly, and his father’s evidence was that he first knew the plaintiff had been injured in late February 2015.
When did the plaintiff know, or should the plaintiff have known, that the injury was caused by the fault of the defendant?
As to the plaintiff’s knowledge of “the fault of the defendant”, that means knowledge that the matter was “legally actionable”: State of New South Wales v Gillett [2012] NSWCA 83 at [97]. Such a phrase calls attention not just to knowledge about who the defendant was, but knowledge that the defendant’s conduct was “at fault”.
In this case, the consideration is directed to when the plaintiff’s parent/s knew or ought to have known that any conduct of the defendant (in driving the boat) believed to have caused the injury was “legally actionable”.
In that regard, in Pomare v Whyte [2019] NSWCA 317, after referring to what was said in Baker-Morrison, Basten JA stated at [18]-[19] (footnote omitted):
[18] There is a question as to whether “fault” in this context can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may be sufficient to amount to a causal link between the breach of duty and the injury. As noted in Murgolo, s 50D(2) permits an inference that some of the facts identified in subs (1) may only be ascertainable by taking reasonable steps which will often include obtaining legal advice. Assuming that the concept of “reasonable steps” does not exclude that step, and there is no basis upon which to infer that it does, then it may be accepted that the statutory scheme is consistent with some facts being dependent upon legal (and other professional) advice. Certainly, the fact identified in subs (1)(c) would appear generally to fall within that category.
[19] There will be cases, such as a motor vehicle accident, where professional advice is not required to know there is actionable fault on the part of another driver. In many cases fault will be obvious to a lay person who, as a driver, will understand the rules of the road. Each case will turn on its own circumstances.
In the circumstances of this case, the plaintiff’s father was a solicitor. He was a director of the company Commercial and Compensation Lawyers Proprietary Limited trading as United Legal. That is, he was a principal of a law firm whose practice included common law negligence claims. That is relevant because of the words in s 50D(2) set out above – what the person ought to have known had the person taken all reasonable steps to work out whether any act or omission by the defendant was a breach of their duty of care.
The plaintiff’s father possessed an obvious advantage in terms of legal knowledge. The father’s knowledge and experience was sufficient to cause his son to see a lawyer. His evidence was not that he could not provide the necessary advice; rather, he did not want to. That raises the question: was legal advice from someone else separately required in this case, before the plaintiff could know the injury was “legally actionable”?
In NSW, while not strictly determinative of whether a cause of action is “legally actionable”, a significant matter relevant to whether a cause of action in negligence is worth pursuing is if the plaintiff’s injuries are such as to surpass a statutory threshold of 15% or more of a most extreme case (s 16 Civil Liability Act). If not, no damages for non-economic loss are available. That opinion requires proper legal advice and I agree with the father’s evidence that the prudent course was to ensure that his son received legal advice from someone who was unrelated to the plaintiff.
A further complication is what the plaintiff’s parents actually knew about how the accident occurred. There was no evidence about what the plaintiff’s mother knew, such as to lead to any view about questions she should have asked concerning the details of the incident. The plaintiff’s father did not live with the plaintiff at the time and he did not know how the injury had occurred until many months after the accident. That is an additional reason why I would not impute to the father the knowledge of a lawyer about whether the conduct on the part of the defendant was legally actionable. The questions a parent asks of an injured child as to how an accident occurred are different to the questions a competent lawyer asks in order to provide advice about a claim being legally actionable.
Accordingly, August or September 2016 was more likely to be the time when the plaintiff first knew the claim was legally actionable. However, taking the approach to the facts that is most favourable to the defendant, I have proceeded on the basis that the earliest the plaintiff had knowledge of the claim being legally actionable was 4 February 2016. That is because at that stage, the father had sufficient facts about the accident, and, taking “all reasonable” steps, the opportunity to seek advice from a qualified lawyer had presented itself, even though that opportunity was not acted upon until months later.
When did the plaintiff know, or should the plaintiff have known, that the injury was sufficiently serious to justify the bringing of the claim?
If I am wrong in relation to the second s 50D(1) criterion, the third component is really where there is a difficulty for the defendant in seeking to argue that the plaintiff’s claim is not maintainable. Even when it first occurred, the injury was painful but was not debilitating for the plaintiff – he could sit, stand, and walk. This is not a case where the plaintiff knew immediately that the injury was sufficiently serious to justify the bringing of the claim.
The Court must therefore work out when, taking all reasonable steps, the plaintiff should have known that the injury was sufficiently serious to justify the bringing of the claim. The earliest feasible starting point for working out the time-line is 1 February 2015 (either days or up to a week after the accident occurred).
The evidence, which I accept as being both plausible and reasonable, was that the plaintiff waited some weeks to see if the back injury got better. When his injury did not improve, he went to a doctor, who referred the plaintiff for an x-ray and for specialist consultation.
Further, the plaintiff’s father had background knowledge about the 15% statutory threshold for non-economic loss, and whether the injury improved was also significant in forming a view about whether the injury was sufficiently serious to justify the bringing of the claim.
However, the facts established that the process of seeing a general practitioner, being referred for an x-ray, and then being referred to an orthopaedic consultant took a number of months, with delays at each step. In this process, the plaintiff initially did not take “all reasonable steps”, but the plaintiff was also following the GP’s recommended treatment and advice.
As to the first of those matters, it took some time for an appointment to be made with a GP, and the initial appointment was missed. While that small delay is understandable in the context of a teenage boy with a back injury causing him some pain, but not severe or debilitating pain, I accept that the assessment of a plaintiff “taking all reasonable steps” means the plaintiff should have sought general medical attention earlier than he did.
As to the second, when the plaintiff did attend the GP, part of the medical treatment used time as a diagnostic tool. On the medical notes, the lumbar spine x-ray and referral to a specialist were made in the context of the plaintiff being advised to undergo physiotherapy, with the advice of a specialist to be sought only if the injury did not settle. That process of seeing whether the back injury improved (albeit through rest and stretching rather than formal physiotherapy) may have contributed to the five-month gap between the obtaining of the x-ray and the specialist consult which resulted in the MRI. The other reason may have been the availability of the specialist. There was nothing to suggest that if the plaintiff had been referred to a different orthopaedic surgeon, the delay in consultation would have been reduced, let alone that the plaintiff should have been so referred. Overall, the factors which resulted in the delay in this aspect of the plaintiff’s treatment were not attributable to any dilatory conduct on the part of the plaintiff or his parents.
The second matter is important because of the diagnosis of the injury. The defendant drew attention to the fact that the plaintiff’s underlying spinal condition was apparent from the x-ray in July 2015. Taking all reasonable steps, the plaintiff would have seen the GP earlier and had the x-ray earlier, with the three-year limitation period commencing from that point.
In my view, it was necessary for the plaintiff to have the benefit of a specialist consultation and MRI (and to try physiotherapy in the meantime) in order to form a view about whether the injury was “sufficiently serious” to justify the bringing of a claim. The x-ray may reveal what the cause of the pain was. What it did not do was tell the plaintiff what that meant. It was not until the plaintiff saw a specialist that the requisite information was able to be obtained. By that I mean answers to questions such as the following: Is it something that settles over time or is the condition ongoing? Is it treatable? Can it be fixed by surgery?
If it is assumed that the plaintiff should reasonably have acted to see a GP by mid-February 2015, there would still have been a five-month delay to consulting with a specialist and having an MRI, bringing the time when the cause of action was first discoverable to mid-July 2015. If the three-year limitation period commenced in mid-July 2015, it would have expired in mid-July 2018. The plaintiff commenced proceedings on 2 July 2018. Even on the most favourable set of facts to the defendant, the claim is within time.
For completeness, however, I will briefly also record my view that the plaintiff waiting to see if his condition improved before even making an appointment to see a general practitioner was a reasonable step to take. A three or four week delay to see whether the pain started to improve was consistent with taking “all reasonable steps”. Applying a similar 3-week delay to each of the steps in the time-line discussed above, the plaintiff should have made an appointment to see the GP at the end of February 2015, with an x-ray of the lumber spine at the beginning of March 2015, and a specialist consultation with an MRI at the end of July/early August (with physiotherapy or at least rest and stretching in the meantime). On that analysis, the limitation period would have commenced to run at the end of July 2015 and expired at the end of July 2018. The claim is thus maintainable not just on the factual scenario most favourable to the defendant, but also on the facts as I have found them.
For these reasons, the defence based on the Limitation Act fails.
The Defendant’s Duty of Care
Under the heading “Duty of care”, s 5B of the Civil Liability Act provides:
5B 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.
In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 the High Court stated (at [13]) that the above provisions were “evidently directed to questions of breach of duty”, which led Beazley P (with whom Barrett and Gleeson JJA agreed) in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 to say at [93]:
…It is an error to determine the existence and content of a duty of care by serial reference to the provisions of those sections.
It is therefore important to make it clear that here, the existence of a duty of care owed by a boat driver towing a person in a floating object was not in dispute, nor was the scope and standard of that duty, being that of the reasonably skilled or licensed boat driver owed to the tube rider being towed.
Where the parties were at odds was the preliminary steps that need to be considered in order to determine whether the defendant’s conduct breached his duty of care – the risk to be guarded against and the reasonable precautions to be taken in response to that risk.
Characterisation of the risk
It is necessary to first work out what the foreseeable “risk of harm” was, as that informs the assessment of what precautions a reasonable person would take.
Under s 5C(a) of the Civil Liability Act, the duty to take precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. Because of this, it is not necessary to descend into the detail of the precise and particular character of the injury, or the precise events leading to the injury: see Tapp at [107]-[109] and the authorities there-cited.
The activity here involved the defendant, an experienced and sober driver of a boat, towing a twelve-year-old boy, in an inflatable tube or biscuit, on water that was an established recreational water sports location, in daylight, in unremarkable weather conditions. The relevant risk created by the towing of any person (including a child) in an object on water is that the object might turn over or flip, causing a person to suffer a physical injury in that process.
The characterisation of the risk must include the “general causal mechanism of the injury sustained” which “gave rise to the potential for the harm for which the plaintiff seeks damages”: Tapp at [114], citing Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 90 NSWLR 1 (Perisher Blue) at [98]. I think that the general causal mechanism to guard against here was that a person sitting in the tube might get injured if the tube were to turn over.
In the present case however, the characterisation of the risk is not straightforward because of the way that the claim was pleaded and run at hearing, which was at two levels. As will be seen, the plaintiff pleaded the precautions that a reasonably skilled boat driver would have taken to guard against the risk that the rider will suffer injury:
(a) from the tube becoming unstable and flipping or capsizing, and
(b) by being pulled through the water after the tube had flipped.
I find that it is sufficient to class the risk as the risk that the tube may flip and that the process of flipping may cause a person to suffer a physical injury. Plainly, it would be too general to describe the risk as the risk of harm from a person being towed on the tube in the water, as that would not capture the “general causal mechanism”. The risk needs to be described by reference to the tube flipping, but not in any more specificity than that.
Events leading to the injury may be that the person’s body twisted in the air when the tube flipped, or that the person’s body was jolted by the way they landed in the water, or that the person’s body was wrenched forward when the flipped tube landed in the water by the towing movement continuing. These are all foreseeable harms to a person who is flipped when being towed in a tube. So characterised, the risk of harm encompasses the circumstances in question here but is not limited to those specific circumstances.
The defendant argued the case on a narrower or more specific characterisation, being the risk that a person might suffer injury from being dragged or pulled in the water after the tube had flipped.
It is useful to recall one of the earlier cases on the characterisation of risk, Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 334, where the risk had been characterised as serious spinal injury flowing from the act of diving off a bridge. Gummow J held at [60] that such characterisation “obscured the true source of the potential injury”. His Honour held that the proper characterisation was “the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary”.
I confess to some difficulty in reconciling “the true source” or cause of the injury referred to in Dederer with the more recent consideration in Tapp that it was only necessary to identify the “general causal mechanism of the injury”. Cases such as Perisher Blue have previously drawn attention to the difference, with the NSW Court of Appeal stating at [98] (emphasis added):
In Dederer, Gummow J suggested (at [60]) that identification of the relevant risk is concerned with determining the “source” of the potential injury. In McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Garling J (at [266]), although in dissent, describes this as [the] “general causal mechanism of the injury sustained”. In essence, the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages.
The injury involved in Dederer occurred before the operation of s 5C(a) of the Civil Liability Act, and the later decision of Tapp expressly applies the statute in considering what gave rise to the potential for harm.
I have highlighted the distinction to assist in explaining why, in my view, the defendant’s characterisation focuses unduly on the idea of capturing the “true source” of the injury, rather than the cause of similar kinds of harm. I consider it too artificial to divide what happens in the seconds after a rider falls into the water from the cause of the rider falling into the water. Such a classification risks descending to the precise event causing the particular injury in question in this case.
Nevertheless, I have addressed both alternatives at various points throughout the reasons that follow, in order to show that in this case, nothing turns on the difference between the parties’ respective characterisation of the relevant risk.
Thus, for the operation of s 5B, in considering whether the risk of potential physical injury was “not insignificant”, that is established on either characterisation of the risk:
(a) On the plaintiff’s characterisation, if the tube capsized, the greater risk to a rider might be bumps and bruises or a sprained wrist by holding on to the tube while it rotated in the air in the course of capsizing, but it is also foreseeable that a person might sustain a non-transient injury, such as a neck injury.
(b) On the defendant’s preferred characterisation, the defendant accepted that the risk of being pulled unexpectedly through the water while holding the tube was not an insignificant risk.
Precautions for the reasonable recreational boat driver engaged in the activity of tubing to take
In light of the risk of physical injury if the tube capsized, or alternatively capsized and kept pulling the rider through the water, what precautions should the reasonable person in the position of the driver of the boat take? For example, the first obvious precaution is to ensure everyone participating in the activity wore a life jacket. The second might be to avoid driving the boat in choppy water or difficult weather conditions. On the narrow risk characterisation identified, having rear view mirrors on the boat to help see what was going on behind the boat might be a starting precautionary measure.
The plaintiff submitted that the following precautions were all things that a reasonable person in the defendant’s position would take:
(1) Drive the boat at a lower speed, reducing the opportunity for the tube to become unstable.
(2) Have a person designated to watch the person in the biscuit while the driver was looking forward driving the boat, to ensure that if the tube capsized, the boat was immediately slowed down to a point where it was stopped.
(3) Ensure the tube rider was thoroughly versed in the safety signals that could be used by that rider to slow down the boat.
(4) Drive the boat in a manner that promoted a smooth path for the tube in the water. This was put in the negative, in that a reasonable person would not drive the boat in a zig-zag pattern, so as to avoid causing the tube becoming unstable from being flicked from side to side.
As will be apparent, some of the precautions propounded by the plaintiff were directed to the tube not becoming airborne in the first place (the broader classification of risk). The second precaution listed above is concerned with the tube not continuing to be towed if it capsized (the narrow risk classification).
The plaintiff supported his case with expert evidence as to the precautions a reasonable person would take. The expert report relied upon by the plaintiff was prepared by Mr Jack Ellison, a professional boat driver, water skier and water ski instructor. The precautions recommended by Mr Ellison included ascertaining whether the rider can swim, instructing them to wear a personal flotation device, explaining hand signals, instructions on how to use the tube, basic instruction on body position while riding the tube, and complying with the requirements of the NSW Roads & Maritime Boating Handbook (Handbook). Further Mr Ellison pointed out that at the time, compliance with the now repealed Marine Safety (General) Regulation 2009 (NSW) (Marine Safety Regulation), required that the operator of a vessel not tow a person unless there is a spotter who has the duties of facing and watching the person being towed and reporting to the operator of the vessel all matters affecting the safety of the person being towed: reg 33.
The defendant led expert evidence from Mr Jeffrey Williams, a former senior lifeguard whose stated areas of expertise included power boat and jet ski injuries. The report provided by Mr Williams did not cavil with the reasonable safety precautions described by Mr Ellison. In my view, the precautions the plaintiff argued a reasonable person in the position of the defendant would have taken were all fairly obvious precautions to take, but I accept the expert evidence to the same effect.
However, it is clear that the above precautions interacted with each other, and each built upon the safety level of the activity. An omission to take any one precaution might not necessarily represent a failure to take care, notwithstanding that it increases the risk level.
For example, the Handbook does not prescribe a speed at which persons in tubes should be towed. It envisages that people may be towed at speeds greater than 8 knots (about 15km/h or a fast jog). Similarly, the Handbook expressly envisages that two people may be towed at a time, even though that must increase the risk that the tubes may bump into each other. The Handbook provides that no more than 3 people be towed at a time.
I have referred to these examples because the very nature of going tubing involves a degree of adventure and the fact that a boat may travel at a speed in excess of 10 knots or tow more than one person at a time is not, of itself, an indication of a failure to take precautions that a reasonable person would take. It is important to look at the precautions that were taken as a whole.
Did the Defendant breach his Duty of Care?
In order to answer that question, some factual findings need to be made about what happened.
How did the boating incident happen?
The plaintiff had been tubing several times before. He knew what the activity involved. He said that when he had been tubing before, he rode in the centre of the wake, at a slower speed than that experienced on the day of the accident. He did not have any concern about the tube being unstable on those occasions.
The plaintiff’s evidence also dealt with any instruction given to him, both before the day of the accident and before he undertook the activity on the day of the accident. The plaintiff said the defendant provided no instruction in relation to hand signals that he could make to alert the driver to any concern about the speed or movement of the boat, nor did the plaintiff separately have any knowledge of the existence of such signals.
As the defendant did not go into evidence, there was no first-hand competing version of events contradicting what the plaintiff said. The plaintiff drew attention to Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 347, relying on [168]-[169], [263] and [266] of that authority in submitting that generally, a party will be expected to call a person as a witness if that person is likely to be able to provide admissible evidence regarding facts in issue. That is particularly the case where it is the party himself who is the relevant witness: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63]. The defendant was really the only person who could give the account of what he saw, heard, and did at the time he drove the boat towing the plaintiff. Even if he could no longer remember precise details, he would have been expected to be called.
I accept the plaintiff’s evidence as set out above, not only because it was not contradicted, but also because it was plausible, in the sense that when towing a primary school aged child in a round inflatable tube for the first or second time, a driver is likely to have been cautious and driven at a slower speed. I also accept that no instructions about hand signals to slow the boat down were given on any occasion when the plaintiff undertook the activity. The plaintiff said he was not given any instruction as to what to do at all, and I have inferred from that evidence a lack of any instruction about what to do if the tube overturned or capsized (for example, to let go immediately so as not to be pulled while under water).
On the day of the accident, the plaintiff said that he was being towed in a tube, with his cousin, who was nine months older than the plaintiff, also being towed at the same time in a separate tube.
The boat was travelling at a speed much higher than he had previously experienced. It is not possible to find a precise speed, but given that evidence of the plaintiff and the inherent nature of the activity, the inference to draw is that it is more likely the boat was travelling at a speed of 10 knots or more. As I have said, that does not of itself constitute a failure to take reasonable precautions.
The boat was driven in a zig-zag manner, which had the consequence of flicking the tube in which he was riding from side to side. Because of the zig-zag path created by the boat changing direction, the tube was hitting the wake of the boat. At times his tube bumped into the tube of his cousin. The plaintiff was cross-examined about his evidence and there were some discrepancies about the path of the boat with a diagram that he had drawn in August 2022, years after the event. In particular, it was put to him that on the plaintiff’s hand-drawn diagram, the boat was driving in a straight line at the time the plaintiff said the accident had occurred. The inference was that the tube could not have been flicked or whipped to the side. The plaintiff gave an unsatisfactory answer that he was attempting to draw zig-zags in the place where he had drawn a straight line, which I do not accept. But a boat that travels straight after being driven in a zig-zag path may still encounter the waves created earlier by the zig-zag path. If those waves are encountered at speed, the tube may still become unstable when encountering the wake.
The plaintiff’s evidence was that he became scared. The plaintiff’s legal representatives described the plaintiff as being “terrified”. I do not accept that the plaintiff was terrified. But I do find that the plaintiff felt outside his comfort zone, and that he felt out of control of the situation, and that as a consequence, he was holding on tightly to the handles of the tube. As the expert evidence confirmed, it is the very nature of tubing that because there is no equivalent of a rudder on the tube, any control over the speed and direction of the tube is entirely in the hands of the boat driver.
At one point the plaintiff described the tube as being flicked to the left. The tube ‘went up’ the wake, became unstable and capsized. The plaintiff went face first into the water. The plaintiff said he hit the water hard. He held on to the handles of the tube, including holding on after the tube overturned. While the tube was upside down in the water and the plaintiff was in the water still holding on to the tube, the tube moved forwards, which meant that he was wrenched backwards. His back arched and he sensed a clicking sensation in his back and transient pain. He let go of the tube, floated to the surface, and waited for the boat to come and pick him up.
The expert evidence led for the defendant suggested that the plaintiff could not have continued to hold on to the tube if he was wearing a life jacket and had gone face first into the water. I accept that the plaintiff’s back was put in a position where his arms were wrenched, and that the most likely reason why that was so was because he was still holding on to the tube.
Whether that occurred as he hit the water, or whether it occurred either before or after, is more difficult. The plaintiff’s perception of how long he was in the water is really based on a memory that there was a lull in the tube flipping and then being suddenly pulled forward. In that regard, I prefer the evidence of Mr Williams, that there was probably a matter of seconds between the tube flipping and the last pull on the tube before the plaintiff let go.
While there are parts of the plaintiff’s evidence that I have not accepted, any inconsistencies in the plaintiff’s evidence were not of such magnitude that I considered they affected the overall reliability of the plaintiff’s evidence as to how the accident occurred. I accept that the tube flipped when it hit the wake, and that the wake itself had been created by the defendant’s driving of the boat. I accept that the plaintiff was pulled while he was in the water, even if it was only for a moment.
The evidence about the spotter was unsatisfactory, primarily because the person who was the designated observer (the plaintiff’s aunt) did not give evidence. The plaintiff has specifically alleged that there was a failure to have a qualified spotter, a failure to instruct the spotter of their duties, and a failure to adequately instruct a spotter. Further particulars of negligence alleged against the driver but relevant to the spotter were causing or permitting the spotter to board the boat with two infant children, a failure to explain the duties of an observer under regulation 33(1)(b) of the Marine Safety Regulation to the person designated to that role, and a failure to respond in a timely manner to the flipping of the tube.
It is the plaintiff’s onus to prove that there was a failure to take reasonable precautions in the manner alleged. The plaintiff stated that on the day of the incident, his Auntie, Ms Meissner, was sitting in the spotter’s chair facing back looking at him when he was on the tube, but there was nothing said specifically about what his aunt as the observer was doing in the boat at the time the tube flipped, or about any lack of instruction given to his aunt. The plaintiff’s aunt was someone from whom the plaintiff could readily have led evidence in order to provide the full explanation as to what instruction she was given, what she saw and what she did. No proper explanation was given as to why she was not subpoenaed to give evidence or otherwise provide a statement. In such circumstances, I do not consider the plaintiff’s evidence strong enough to draw any inference that there was somehow a failure to either instruct the spotter or a failure by the spotter to properly observe such as to be attributable to the defendant in this case.
Do the facts, as found, amount to a breach of the defendant’s duty of care?
On the findings above, the defendant:
(1) Did not give the plaintiff any instructions about how to slow down the boat or what to do if the tube flipped;
(2) Did not drive at a slow speed;
(3) Drove in a manner that zig-zagged, deliberately creating waves, or a wake that the defendant knew the plaintiff’s tube would have to negotiate.
He further drove in such a manner that either he did not, or could not, stop the boat immediately upon the tube flipping, with the result that the tube continued being towed, albeit only for a moment.
In isolation, none of the above conduct might be considered to be a failure to take reasonable precautions. The fact that the plaintiff was not told any signals he could use would not have been a failure to take reasonable precautions if the driver maintained a low speed, reducing the opportunity for the tube to become airborne in any way. Similarly, the speed of the boat was not excessive by water safety standards, and the zig-zag path was not by itself a failure to take reasonable precautions.
However, the combination of those matters tells a different story.
Mr Ellison’s expert evidence, which I accept, was that the speed of the boat and the waves that were created by the manner of the driving were the cause of the tube turning over. Giving no instruction to a twelve-year old boy as to what to do to either slow the boat down or if the tube flipped meant that the rider of the tube was left without the basic tools to exercise any control over the ride or the knowledge of how to flip or fall into the water in a safer manner – by letting go of the tube.
The lack of instructions also meant that the tube went at a speed faster than the boy was comfortable with. Even if the speed was not such as to terrify the boy, there was at least a degree of nervousness caused, which probably contributed to the boy not acting as the defendant assumed he would when the tube flipped – the plaintiff did not have the presence of mind to let go independent of any instruction that might have been given to him.
Overall, I accept that the boat was driving faster than it should have been in the circumstances known to the Defendant, which included a twelve-year-old boy as the rider, who had not been properly instructed, and the zig-zag path of the boat, which was created with the intention of creating a wake over which the rider’s tube had to cross.
I separately accept that the defendant did not take sufficient precautions to guard against the risk that the tube might pull or wrench the plaintiff’s body once he fell into the water. Primarily that is because of the lack of instruction to the rider about what to do, in circumstances where the person riding the boat was a child who was relatively inexperienced with the activity. Combine that lack of instruction with the boat continuing to tow the tube momentarily once it had flipped, the defendant did not act with a sufficient level of precaution in response to the risk. Whether that was because the boat was travelling too fast to begin with, or because the driver did not have sufficient notice to stop, he was ultimately responsible for rider safety when the tube flipped through immediately stopping or slowing down the boat sufficiently. He did not do so.
What caused the plaintiff’s back injury?
Section 5D(1) of the Civil Liability Act includes two elements:
(a) That the breach of duty of care was a ‘necessary condition’ of the happening of the harm: s 5D(1)(a); and
(b) That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused: s 5D(1)(b).
The second element is not in dispute here. The parties were agreed that the test as articulated in Wallace v Kam [2013] HCA 19; 250 CLR 375 at [22]-[26] was satisfied.
The issue is the plaintiff’s underlying congenital or developmental condition which pre-dated the accident in 2015. The plaintiff suffers from bilateral spondylolysis (a defect in the pars interarticularis) of the fifth lumbar vertebra (L5) and Grade 1 L5/S1 isthmic spondylolisthesis (forward slippage of L5 onto the first sacral vertebra (S1)).
The plaintiff’s evidence was that before the accident, he had experienced an uncomfortable sensation in his back when sitting cross-legged for long periods of time, which he was able to fix by standing up. When the accident occurred, he felt a clicking sensation and transient pain, which became worse some hours after. Since that time, the plaintiff’s evidence was that he has intermittent back pain which is provoked by physical activities. It has interfered with his schooling, in that he has at times spent days in bed. He described his back pain as getting worse or more severe since the accident.
The defendant disputed the plaintiff’s claim that the boating incident caused an aggravation of the underlying condition, and if it did, to what extent and for what period. He was cross-examined about a number of incidents where he experienced back pain, including soccer injuries in 2019, a motorcycle accident in April 2019, being kicked in the back of the head in October 2019, and slipping in the bathroom in September 2020.
These were all incidents that occurred after the statement of claim was filed. The plaintiff had no reason to lie to the GP the first time he saw him in July 2015, and the clinical records refer to a “recurring back pain of up to 6/10 severity burning in nature” which the GP recorded as being attributable to a “water skiing (wakeboarding)” accident. In my view, the fact that the record refers to other activities that were carried out on the day and does not specifically state the tubing incident does not detract from the causal link. Caution must be taken when construing medical communications and clinical records which are prepared for a different purpose than scrutiny during legal proceedings: see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. The summary by the GP is consistent with the plaintiff’s back condition and vulnerability becoming a back injury as a result of water sports activities being undertaken, rather than playing soccer, for example.
Importantly, there was also expert medical evidence to the effect that the plaintiff’s underlying condition was aggravated by the tubing incident. It included opinions from Dr Brooder, consultant neurologist, Dr Nair, spinal orthopaedic surgeon, Dr Patrick, general surgeon and Dr Champion, rheumatologist (and pain specialist).
I agree with the plaintiff’s submission that, of these, the opinion that carries most weight as to the initial cause of the injury is that of the expert with the relevant specialty, being that of the spinal orthopaedic surgeon, Dr Nair, whose opinion that there was “an aggravation to an underlying L5/S1 isthmic spondylolisthesis” was both cogently explained and confirmed under cross-examination.
The defendant relied upon the opinion of Associate Professor Miniter, whose expertise is not in question but who had been given an inaccurate history of what occurred. His opinion was influenced by being told that the plaintiff continued with the tube related activity and had a second trip in the boat, and that he only had pain after the second trip on the boat. That was not the evidence at trial, and it does not accord with the facts that have been found above.
Similarly, Associate Professor McGill, rheumatologist, also gave evidence confirming an opinion that the ongoing fluctuating symptoms the plaintiff experienced reflected his pre-existing pars defects and ongoing physical activities developing into injuries. In Dr McGill’s view, the back problems which fluctuated in the months following the accident were more likely to be an incident of the pars defects and the plaintiff’s ongoing physical activities then being attributable to the plaintiff’s boating accident. Again however, Dr McGill’s opinion relied on a factual matrix not supported by the evidence, of the plaintiff being able to do another ride on the tube and only becoming troubled by back pain two hours later.
Accordingly, I accept that the boating incident caused an aggravation of the plaintiff’s underlying back condition. On either alternative of risk characterisation, the failure to take the reasonable precautions set out above caused the injury to the plaintiff. By reference to the language of s 5D, I accept that the tube becoming unstable and flipping, and the unexpected pulling of the plaintiff’s body in the water, were each necessary conditions of the happening of the harm in the sense of the accident causing an asymptomatic underlying spinal condition to become symptomatic.
What that means, and the extent of the harm caused by the tubing accident, is dealt with separately below.
The second statutory defence: There is no liability for harm suffered by the materialisation of an “obvious risk” of a “dangerous recreational activity” – is that the case here?
The provision giving rise to such a defence is s 5L of the Civil Liability Act, which is in the following terms:
5L No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.
As stated in Tapp at [104] (references omitted):
The defence in s 5L requires a defendant to prove that: (i) the plaintiff was engaged in a "recreational activity"; (ii) the recreational activity was dangerous in the sense that it involved "a significant risk of physical harm"; (iii) there was a risk of that activity that was obvious; and (iv) the harm was suffered by the plaintiff as a result of the materialisation of that obvious risk. Once these four elements are proved, the defence in s 5L will apply to the extent that the harm suffered by the plaintiff was a result of the materialisation of that obvious risk.
Whether the defence is made out is to be determined “objectively and prospectively”: Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] (Lormine).
Both ‘dangerous recreational activity’ and ‘obvious risk’ are defined in the Civil Liability Act. As to the first, a dangerous recreational activity is “a recreational activity that involves a significant risk of physical harm”, with a recreational activity including, among other things “any pursuit or activity engaged in for enjoyment, relation or leisure”: s 5K. As to the second, what constitutes an ‘obvious risk’ is discussed in detail below.
There is no issue here that the activity of tubing met the definition of a “recreational activity”. The disputed issues were:
(1) Whether the recreational activity was dangerous;
(2) Whether the risk of the activity was obvious; and
(3) Whether the harm was suffered by the plaintiff as a result of the materialisation of that obvious risk.
The risk should be characterised at the same level of generality as it was characterised when assessing breach under s 5B of the Civil Liability Act, including the same facts as those that established the risk under s 5B and without descending to the precise detail of the mechanism by which an injury was suffered, if that detail was unnecessary to establish a breach of duty: Tapp at [110]-[112].
Was the recreational activity dangerous?
In Whittington v Smeaton [2016] ACTSC 76, the same question arose in relation to a plaintiff who suffered injury as a result of a jet ski accident. Mossop AsJ (as his Honour then was) considered what constituted a dangerous recreational activity in the context of an equivalent provision in the Queensland civil liability legislation. His Honour found that riding a jet ski in a manner not involving, for instance, freestyling or wave jumping, was not a dangerous recreational activity (at [60]). That finding was unchallenged on appeal of his Honour’s decision: see Allianz Australia Insurance Ltd v Smeaton [2016] ACTCA 59 at [22]. In the course of making that finding, his Honour helpfully collected a number of propositions relevant to determining whether a recreational activity was dangerous at [58]:
(a) the definition must be read as a whole: Falvo v Australian Oztag Sports Association[2006] NSWCA 17 at [28];
(b) “regard must be had to the nature and degree of harm that might be suffered on the one hand, and the likelihood of the risk materialising on the other”: Campbell v Hay[2014] NSWCA 129 at [116];
(c) a risk is “significant” if the likelihood of its occurrence is not trivial, but rather has a real chance of materialising: Campbell v Hay at [116];
(d) the assessment of the risk includes an assessment of the likely seriousness of the harm: Campbell v Hay at [117];
(e) “significance is to be informed by the elements of both risk and physical harm”: Lormine at [31]; Stewart v Ackland[2015] ACTCA 1 at [33].
The defendant argued that tubing was a risky and dangerous activity. The plaintiff contended that tubing is not itself a dangerous recreational activity, because it does not carry a significant risk of significant physical harm: see Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [28]-[31].
In that regard, it is relevant to point out that the Court does not consider the activity in the abstract. The Court also takes into account the particular circumstances of the participation in the recreational activity: Whittington at [59]. In Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [36] Ipp JA said:
Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case). A cliff walk in daytime may be safe but at night it may be dangerous. Walking along the edge of a cliff may be dangerous at any time but walking on a country road not. Waterskiing may not be dangerous for a competent skier but the same may not be said for a novice. A recreational activity may dangerous for a child but not for an adult. Participating in a recreational activity might be safe for a sober person but dangerous for one who is intoxicated. Fencing with appropriate protective equipment might not be dangerous but the same could not be said for fencing without protection. Sailing in calm seas for a short period might be safe, but sailing in a raging gale might be classified as dangerous.
I am not convinced that the activity, by its inherent nature, was in a category which might be viewed as dangerous at any level, such as bungee jumping or aerial skiing. However, nor was it lawn bowls or kite flying. The particular circumstances of the plaintiff’s participation in the tubing activity here (repeating the features identified when considering the risk in the context of s 5B) are critical to whether the activity was dangerous. They are as follows:
(1) A twelve-year old boy;
(2) Who was relatively inexperienced in the activity, but
(a) took the precaution of wearing a life jacket, and
(b) the control of the speed and direction of the tube was necessarily in the hands of a sober responsible adult, being the driver of the boat (all he had to do was sit in, and hold on to, the tube), and
(c) the boy’s aunt was sitting in the boat facing him as an observer;
(3) Carried out during daytime;
(4) At a known watersports location;
(5) With no adverse weather conditions.
Taking into account those circumstances in which the activity was undertaken, there was a real risk of the tube flipping over while any person was being towed along, regardless of whether that person was an adult or child. Further, if the tube flipped over, there was some risk of physical harm. The fact that the activity was being undertaken by a child who was a relative novice is not immaterial, but the nature of the activity was not something that required particular skill or proficiency, as might be the case with water-skiing or wakeboarding – the rider just sits in the tube.
However, the risk of serious or significant injury from the tube flipping must be viewed as remote in circumstances where the rider was wearing a life-jacket and all other precautions were being observed (less than three riders, tube a sufficient distance from the boat, spotter on board).
It is appreciated that a low risk of catastrophic injury (death by drowning, for example) may amount to a significant risk of physical harm. That matter carries some force if the risk were considered on the narrower basis, being the risk of injury from being pulled in the water. However, because of the circumstances in which the rider was participating – wearing a life jacket and with a spotter on board the boat – I still would not have found the activity to fall within the definition of dangerous.
Was the risk obvious?
The remainder of the applicability of s 5L has been addressed in the event that the above finding as to a lack of dangerousness is wrong.
What constitutes an obvious risk is defined in s 5F of the Civil Liability Act as follows:
5F Meaning of "obvious risk"
(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
The defendant contended that there is always a risk that a tube rider will fall off or that the tube may overturn as a result of the boat turning or from the action of a wake. The defendant also submitted (bearing in mind its more specific characterisation of the risk) that if the tube rider holds on to the tube handles when in the water, the rider runs the risk of injury, with those facts making it appropriate to characterise the harm suffered by the plaintiff as obvious.
I accept that tubing is an activity that is known to contain a risk of the tube flipping, and that falling into water obviously has pitfalls, but part of the factual matrix that must be considered is what would have been obvious to a reasonable person in the “position” of the plaintiff.
The fact that the plaintiff here was twelve years old at the time of the accident is relevant, because the words of s 5F(1) are a reasonable person “in the position” of the person who suffers harm. In this case, the defendant accepted that the court views the obviousness from the perspective of the reasonable twelve-year-old child, but argued that the risk of injury from continuing to hold on to a moving tube after entering the water is a risk that would have been obvious even to a twelve-year-old child.
The defendant’s argument ignores the twelve-year-old’s only prior tubing experience, which was being towed at a sedate pace, in a straight line, with no misadventure. It also ignores the plaintiff’s evidence about his experience on the day. He had previously tried water-skiing but he could not stand up. He was asked whether he was pulled along in the water and he said no, because the handle was immediately ripped out of his hands before he stood up.
Added to this, the position of this twelve-year-old child included him wearing a life jacket, being given no instruction about any potential risk or any suggestion that the boat might go at a speed where he wanted it to slow down. The position further included the presence of a person observing him during the ride, moreover, a family member who was watching out for his safety.
The risk that the boat may continue to pull the tube after it flipped might be obvious to an adult. In hindsight, the risk of being pulled if the rider did not let go may also be obvious to a twelve-year-old child. However, viewed from the perspective of the reasonable twelve-year-old child in the position described above, the need to let go immediately upon the tube flipping would not have been readily apparent or obvious. That is because the position includes where the child could see a spotter whose job it was to look out for his safety and ensure the boat was stopped, as well as his previous experience on the day of the accident, namely that when holding on to an object in the water with the boat moving, the object was simply pulled from his hands.
For these reasons, I am not persuaded that the level of clarity sufficient to constitute an obvious risk can be imputed to the reasonable twelve-year-old child, let alone one whose expectations of the ride he would have, were very different from the ride that was delivered.
Accordingly, I accept the plaintiff’s submission that even if the activity as participated in by the plaintiff fell within the definition of a dangerous recreational activity, there was no materialisation of an “obvious” risk for the purposes of s 5F, from the position of this particular plaintiff. Due to the above findings, it is unnecessary to deal with whether what occurred was the materialisation of “that obvious risk”, being the third disputed issue.
The third statutory defence: Contributory Negligence
In assessing whether there has been any contributory negligence by the plaintiff, the same principles as have been set out above apply to the reasonable precautions to be taken by the plaintiff: s 5R of the Civil Liability Act. Ultimately, the defence did not appear to be maintained, but for an abundance of caution, in light of the factual findings made above, I do not accept that there was any level of contributory negligence on behalf of the plaintiff, given his age at the time and his relative inexperience with the leisure activity he was undertaking, in the manner in which it was conducted.
Damages
After the accident, the boat picked the plaintiff up from the water. The plaintiff reported feeling “mild discomfort” in his back immediately after the accident and throughout the day. He could not recall how long after the accident he returned to the shore, but testified that by this time his back was “much more painful” than it had been while he was on the boat. From about 12 hours after the accident, the plaintiff experienced ongoing intermittent back pain. His symptoms worsened in the following months, with his back being “very tight”, and suffering “increasing pain”.
In November 2016, the plaintiff’s GP recorded that the plaintiff continued to suffer from lower back pain and had done so since the accident in 2015. Although he is able to perform rudimentary activities of daily living, the plaintiff now suffers from chronic pain, requiring prescription painkillers (namely Lyrica) to manage his back pain and he recently had spinal steroid injections. There was a suggestion that at some point in the future, the plaintiff would probably require surgery to stabilise the L5/S1 interspace (a spinal fusion). The plaintiff regularly undertakes physiotherapy.
The plaintiff therefore claims damages for his back pain, a reduced range of motion of the lumbar spine, a restricted ability to concentrate at school due to pain, a restricted ability to participate in recreational activities due to pain, a restriction due to radiation of pain from the lumbar region to the buttocks and a restricted ability to sit in the car for long periods of time.
From February 2017, the plaintiff has also experienced problems with stress and depression. He makes no claim for damages based on any psychological illness attributable to the boating incident.
The counter-factual – is the plaintiff’s current medical condition entirely attributable to the boating incident?
The fact that the plaintiff had an underlying vulnerability in his spine adds another layer of complexity, due to other non-tortious circumstances that occurred in the years following the boating incident, which either put strain on the plaintiff’s back or caused him injury. It gives rise to the question of whether the plaintiff would be in the same position of suffering back pain now, even if the boating accident had never occurred.
Principles applying to the assessment of damages where there is a pre-existing medical condition
To assist in understanding the factual findings to be made with respect to this point, it is helpful to set out some of the established principles.
First, a defendant who has caused a plaintiff personal injury is not liable for loss that the plaintiff would have suffered in any event by virtue of a pre-existing medical condition, but the onus is on the defendant to bring forward the evidence necessary to establish that fact: Watts v Rake (1960) 108 CLR 158, where Dixon CJ stated at 160:
…If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.
Consistently with the above, in Purkess v Crittenden (1965) 114 CLR 164, Barwick CJ, Kitto and Taylor JJ said at 168 (emphasis added):
… it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.
Second, uncertainty as to what would have happened to the plaintiff without the injury leads to a proportionate award in accordance with the relevant degree of probability: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. In that case, Deane, Gaudron and McHugh JJ explained the approach the Court takes (emphasis added) at 643:
… If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. ... But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability…
Further assistance as to the approach for the Court to take is derived from Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, where Mason CJ, Dawson, Toohey and Gaudron JJ said at [22] (emphasis added):
22. Damages in tort have also been assessed by reference to the probabilities or possibilities of what will happen or what would have happened. That approach has been frequently adopted in the assessment of damages for personal injuries where a court has been called upon to assess future possibilities and past hypothetical situations. In Malec v. J.C. Hutton Pty. Ltd. ((20) [1990] HCA 20; (1990) 169 CLR 638.), this Court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages ((21) ibid at 639-640 per Brennan and Dawson JJ., 642-643 per Deane, Gaudron and McHugh JJ.).
In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, the New South Wales Court of Appeal (Ipp JA, Mason P agreeing) helpfully brought together the above High Court authorities in the following way:
[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by [the principles in Malec v JC Hutton Pty Ltd] (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]]. Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Circumstances relevant to the present plaintiff
Assessing the counterfactual here for the purpose of assessing damages, it is significant that the plaintiff’s life has not been incident free. Since the tubing accident in January 2015, the following incidents are relevant to the “past hypothetical situation”:
(1) In 2018, the plaintiff gained work experience when he was in year 10, working as a bricklayer’s labourer for a few weeks. He experienced back pain and later reported pain radiating intermittently down the right leg.
(2) On 30 April 2019, when the plaintiff was in year 11, the plaintiff was involved in an accident between his motorcycle and a quad bike. He was travelling at a speed of 60 km/hr, and the quad bike was travelling at 20 km/hr. He suffered pain in his lower left leg. He denied any back pain associated with the accident but only vaguely recalled the accident itself.
(3) In June 2019, the plaintiff experienced pain in the neck after being struck on the chin during a boxing session.
(4) On 28 October 2019, the plaintiff experienced pain in his neck after being kicked in the back of the head during a soccer game.
(5) In December 2019, the plaintiff had another motorcycle accident, causing pain in his left shoulder. He hit a divot in the road and his motorcycle went out from under him. He landed on his front with his left arm overhead and skidded for 8 metres. This caused him back pain and swelling in the lower leg.
(6) In August 2020, the plaintiff was tackled and fell while playing soccer. He was stretchered off the field and admitted to hospital. He experienced pain in his neck, back and legs.
(7) In September 2020, the plaintiff slipped in the bathroom and felt pain in his back, neck, left shoulder, and legs. He had sensations of a loss of feeling in his left leg. He went to hospital and was discharged the same day with painkillers.
(8) In October 2020, the plaintiff had another soccer injury. It was described by the plaintiff’s treating neurosurgeon, Dr Ow-Yang, as follows:
Jack had a recent severe exacerbation of low back pain and lower limb radicular symptoms about a week ago. He was playing soccer and fell in an awkward way, extending the back. This resulted in severe back pain radiating up towards the left shoulder and down into both lower limbs. For a few hours, there was loss of sensation in the lower limbs as well as weakness. … He is now well and all of the symptoms have resolved.
(9) In November 2021, the plaintiff was involved in a motor vehicle accident where the vehicle in which he was travelling rolled three times. He sustained an injury to his left shoulder, which required surgery, and was off work for between 4 and 6 months (there was conflicting evidence in that regard).
(10) In March 2022 the plaintiff was involved in a motor-cycle accident and felt pain in his right ankle and foot.
This history led Dr Miniter to say that there are a multitude of events in the plaintiff’s life that could have caused exacerbation of the underlying spinal condition. Dr Nair agreed that any episode of trauma could be a catalyst, so that regardless of whether the boating accident had occurred in 2015, injuries of the kind described above could cause symptoms of back pain and radiculopathy. Dr Nair spoke of the spondylolysis as a longstanding process, with trauma resulting in a change of trajectory of the “natural history of that longstanding process”.
The plaintiff focused on the fact that after each of the accidents or events set out above, he recovered from the symptoms or injuries detailed in the medical reports and clinical notes. Both Dr Nair and Dr Patrick considered the boating accident to have been a very significant incident for the aggravation of a longstanding process. Part of the reason was the plaintiff’s reporting of pain after the incident as has been found above, combined with the two MRI scans taken, one at the end of 2015 and then again in 2019. There was no real apparent change in the 2019 scan. The plaintiff’s experts were of the view that if any of the subsequent events were the cause of an increase in ongoing pain (as opposed to a temporary injury) the 2019 scan would have revealed that. The inference urged upon the Court was that none of these incidents were the original cause of the plaintiff’s current condition or a contributing factor to the plaintiff’s present ongoing pain.
That may be so, but acceptance of such a submission only addresses what might be described as the historical fact – what happened to cause the present’s present pain. There remains the issue of whether the plaintiff’s current condition would have resulted in any event – regardless of the boating accident. Dr Nair, Dr Patrick and Dr Miniter were each squarely asked that question during concurrent evidence. By way of example, Dr Nair was asked whether the trauma that that could change the trajectory of the process could refer to the wrenching injury of the kind involved in the boating incident or equally to the nature of repetitive twisting loading type activities (being a reference to the work involved in being a bricklayer’s labourer). Dr Nair stated:
Yes, absolutely. They all impart biomechanical forces across a motion segment and stress – biomechanically stress the disc, or the discs.
Without setting out the totality of the evidence on this point, by reference to the forces on the body, and consideration given to the movement involved in each of the above events, the orthopaedic and surgical experts all generally agreed that these were the kind of events that would be likely to render a spondylolysis symptomatic, because they could all be described as trauma.
Applying that expert evidence to the number and magnitude of the plaintiff’s sporting and motor vehicle or motorcycle accidents results in the following finding: there was a high degree of probability that the plaintiff would have reached a state where his developmental or underlying spinal condition was aggravated and became symptomatic regardless of the tubing accident.
As to when that hypothetical situation would have occurred, it may have occurred as early as 2018, through the work experience briefly undertaken by the plaintiff as a bricklayer’s labourer. By the close of November 2021 (with the significant impact of the motor accident taking the plaintiff out of the workforce for 4 months) the probability of the spondylolysis being rendered symptomatic is probably over 80% but the medical evidence did not go as far as to say that it was certain (in the sense of a likelihood above 99%) that the plaintiff would have been symptomatic by that date because of this young man’s “colourful life”, as one of the medical experts put it. In any event, the defendant has discharged the evidential onus and a significant discount for that probability is appropriate.
Non-economic loss
The calculation of damages for non-economic loss is provided for by s 16 of the Civil Liability Act. The common approach is to make a single global assessment of the relevant proportion of a most extreme case taking into account the loss of amenities of life or pain and suffering which this particular plaintiff (as opposed to some abstract hypothetical plaintiff) would have enjoyed, but for the tortious conduct: see AEA Constructions Pty Ltd v Wharekawa;AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176 at [16]-[20], [22].
By way of explaining that principle, a plaintiff whose back injury might prevent him from skiing or rowing has lost no amenity if he did not previously have the inclination to ski or row. However, if the same plaintiff then gives evidence that he has sat in a ski lodge and missed out on learning to ski during a holiday with friends or family because of the injury he has suffered, that might be an amenity that the particular plaintiff has then lost. It all depends on the evidence of the plaintiff.
In this case, the plaintiff’s evidence was that he initially stopped playing soccer, cricket, and rugby league at various stages due to back pain. I do not accept that the back pain was the cause of stopping those recreational activities, or indeed any recreational activities, because of the following. First, the plaintiff played soccer, volleyball, some tennis and cricket and during the undertaking of those activities his evidence was that his back was affected “sometimes”. He later felt that the back pain from playing soccer influenced his decision to stand back from playing soccer in 2019, yet in the next breath confirmed that he took up boxing in the same year. In 2020, the plaintiff was training for an amateur boxing fight. The plaintiff’s cessation of team sports also appears to have coincided with him finishing high school and commencing at Narrabundah College for a year, before attending Canberra College for year 12. In March 2020, the plaintiff accepted that he was training for either boxing, soccer or Oztag every single night of the week.
The plaintiff argued a high point of 45% of a most extreme case. Discounting that by 35% for other aggravations, it was submitted that the finding ought to be 29% of a most extreme case.
I was not persuaded that the plaintiff’s evidence as to his loss of amenity put the plaintiff at a starting point of 45% of a most extreme case. I accept he is having to manage a back injury and protect his back, which conflicts with the more active pursuits of a young man. But I found great difficulty in accepting that his amenity of life had been reduced, as opposed to different choices being made as the opportunities presented themselves. If he was really prevented from playing soccer and cricket due to back pain, it is unlikely he would have returned to those sports the following year, as he did, and his boxing and ongoing gym pursuits (between 3 and 5 times a week at the date of the hearing) are somewhat difficult to reconcile with debilitating back pain. I say somewhat because the plaintiff’s evidence was that while at the gym for recreation, where he lifts bar bells, dumb bells and can chest press 120kg, he also does rehabilitation exercises shown to him by his physiotherapist, which he finds helpful.
More significantly, the plaintiff’s submission was premised on a finding of damage (ongoing back pain and restrictions) attributable to the boating incident for the rest of the plaintiff’s life, whereas what has been found is a high probability that the damage attributable to the boating incident was at best a period of him being pain free for six years more than what he enjoyed. Further, the plaintiff currently has excellent function, as reflected by his going to the gym, sporting and recreational activities. He has been able to carry out very physical activities, although I accept that he cannot do these for very long and he does them with pain or the risk of it. The psychological consequences resulting from chronic but intermittent back pain are similarly affected by that finding.
Taking account of the loss of amenity to this particular plaintiff, requires the global assessment to take account of the plaintiff’s pre-existing condition. In my assessment, the plaintiff’s non-economic loss attributable to the defendant’s negligence is at 21% of a most extreme case, which on the statutory tables (indexed yearly from 1 October 2022) equates to $28,000.
Past Treatment Expenses
These were agreed at $4,585. I am separately satisfied that it is appropriate to award the entirety of these expenses as being attributable to the boat accident and that no discount is required to take account of the plaintiff’s pre-existing spinal vulnerability.
Past Economic Loss
The plaintiff ultimately made no claim for past economic loss.
Future Economic Loss
An award of damages for future economic loss (including by way of a buffer) is to compensate the claimant for the diminished capacity to earn income: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [24].
Under s 13 of the Civil Liability Act:
13 Future economic loss—claimant’s prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
The above provision has been the subject of close judicial consideration, resulting in the following summary of the approach to be taken, set out (among other cases) in Kallouf v Middis [2008] NSWCA 61 at [7]:
(a) assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(b) assess the claimant’s economic prospects as a consequence of the accident;
(c) compensate the claimant for the difference between (a) and (b), including, where appropriate, through the use of a buffer;
(d) adjust (c) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (a) even had the accident not occurred; and
(e) include a statement of the assumptions made as to the claimant’s most likely future circumstances and the appropriate percentage adjustment.
In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, the circumstances in which it may be appropriate to award damages by way of a buffer were described (by McColl JA, with Mason P and Beazley JA agreeing) as follows at [84] (emphasis added):
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks[2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann[2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King[2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery[2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). …
The plaintiff is presently 20 years of age. He had not settled on any career path. He was so young when the accident occurred that there was no evidence the plaintiff’s schooling or education had been affected. His ability to concentrate appears to have equally been influenced by psychological matters that are not the subject of this proceeding. Given the evidence that he is able to manage his pain when he needs to by taking Nurofen or Panadol, I do not accept any claim that his back pain made it difficult to concentrate at school, at least not to an extent that it can be said to have affected any particular career trajectory.
The plaintiff indicated that he had persisted with a Diploma of Business at the University of Canberra for four months, but I was not satisfied that his back condition made him unfit for study. He referred in passing to his back but at the same time (to his credit) acknowledged that other operative reasons for him dropping out of the course were that he was living on campus and had to pay his own bills.
It is most likely that the plaintiff’s spondylolysis would have been rendered symptomatic independently of the boating incident, because of the plaintiff’s life events that have subsequently occurred. That means it is also likely that he would have been suffering pain regardless of the boating incident, which affects the claim for future economic loss.
Even if the plaintiff had commenced work in the building and construction industry and his injuries have altered his capacity to earn from that industry, because of his underlying spinal condition, the most likely outcome would have been that such work would have quickly become unsuitable for him. Accordingly, although I accept the plaintiff’s submission that it is likely he will have to train and engage in physically undemanding work, the most likely future hypothetical event or contingency is that he would have had to do that anyway, and further, such a future may have already come to pass. The most likely outcome is that the boating incident has had no impact on the plaintiff’s economic prospects or capacity to earn.
However, a modest buffer remains appropriate, on the basis that despite that finding, there remains a possibility that the consequences of the boating incident may have caused a delay in the plaintiff training for employment that is suitable for him and therefore a delay in him earning from suitable full-time employment. There is also a contingency or possibility that the above “most likely” economic circumstances would not have materialised. On the assumption that the plaintiff will most probably earn some wages during whatever training he chooses to undertake, and allowing for two years of training, I have assessed $50,000 inclusive of any lost superannuation as the appropriate buffer to compensate the plaintiff for the possibility that the boating incident might have had some impact on his future economic capacity.
Domestic Assistance
The plaintiff was a minor under the care of his parents, with past domestic care and assistance not being claimed. The plaintiff accepted that the care provided would not exceed the Civil Liability Act threshold prescribed by s 15(3) for gratuitous assistance of six hours a week.
Following the evidence, the plaintiff reduced his claim for commercial care services to two hours per week on a commercial basis from age twenty-five, rounded out to $72,500. The plaintiff ultimately relied on the figures given in an assessment provided by the defendant’s occupational therapist expert, Ms Cathy Decker. The National Disability Insurance Scheme rate is approximately $50 per hour.
In order for the plaintiff to be entitled to damages in respect of commercial care services, he had to show not only a need for paid commercial care but also that gratuitous assistance to satisfy the need was unavailable: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 (Berkeley) at [148] (Tobias AJA, Basten and Meagher JJA agreeing).
The evidence in this regard was that in the event the plaintiff had funds to pay for it, he would engage someone to do the household chores that he had difficulty with. The plaintiff currently lives in a residence on the same property as his father. Sometime over the next five or six years he may change his residence.
Under cross-examination, the plaintiff accepted that he can wash himself, get food for himself, and he can stand at the sink for a short period of time and wash dishes, although he gets pain if he has to wash dishes for his family as well. He can lift and carry items weighing more than ten kilograms. He can walk with pain when carrying items weighing more than ten kilograms. He can make his bed, push and pull a vacuum, push and pull a mop, hang out and fold his washing. He can carry in and put away the shopping if he needs to.
Although the occupational therapists dutifully prepared reports, which I have read, they did not accord with the evidence given in the witness box. The plaintiff’s evidence did not establish that he actually had any need for domestic care, let alone that gratuitous assistance to satisfy the need was unavailable, particularly in circumstances where the plaintiff is currently living in close proximity to his father.
Although I accept the plaintiff may feel back pain if standing at the sink for twenty-five minutes washing dishes, the Court may readily infer that the plaintiff would only have a need to wash the dishes of other members of the family if they were actually eating with him. The plaintiff’s occupational therapist (Ms Natala Cogger) also confirmed this. She referred to the plaintiff’s family doing the cleaning up when they ate together. The few small tasks where there was evidence that the plaintiff might suffer pain fall squarely within gratuitous domestic services and are thus subject to the statutory threshold.
I am mindful of Ms Decker’s point, made in her report, that the founding principle of occupational therapy is to enable people to participate in activities of everyday life, “working with people… to enhance their ability to engage in the occupations they want to, need to, or are expected to do” and that relying on others for the performance of tasks “can lead to dependency, decreased confidence, and can have a negative effect on a person’s adjustment to disability”. I have some sympathy for that idea, and saying to an injured person that they can rely on support from family and friends for some tasks is in my view, problematic. Family relationships are complex, the person may not want to ask people to pop over for five minutes so that they can stack a dishwasher.
However, the legislature in NSW has intervened, to create a threshold for domestic care, and the types of tasks that the plaintiff has difficulty doing are not the kind of tasks that establish a need for commercial care. There was no task that he said he could not do at all. A significant component of Ms Decker’s report included assistance in the form of mowing a lawn that the plaintiff might never have.
If that finding is wrong, for the same reasons as those given above in relation to other heads of damage, there is a high probability that any restrictions the plaintiff will experience which give rise to any need for commercial care would not be attributable to the defendant’s negligence. If I had accepted this component of the plaintiff’s claim in order to properly take account of that finding, I would have substantially reduced the $72,500 claimed to $10,000. But in the event, applying the requirements of Berkeley set out above, I am not satisfied that the plaintiff has established a need for commercial domestic assistance of any degree.
Future Medical Expenses
The plaintiff has claimed future medical treatment expenses including surgery of $60,000, deferred for ten years, resulting in a claim for $37,000. The plaintiff also claimed $10,000 for some conservative treatment, such as medication and physiotherapy. There was evidence from the orthopaedic surgeons that down the track, surgical intervention may be required. However, for the same reasons as those given above, such a claim should be heavily discounted to $10,000.
Interest
No interest is payable in respect of any compensation for the future damages components and pursuant to s 18(1)(a) of the Civil Liability Act, no interest is payable on damages for non-economic loss.
That leaves only the agreed past treatment expenses ($4585). I am satisfied that interest pursuant to s 18(2) of the Civil Liability Act is payable on that component of damages. However, the date of the boating accident is uncertain and the amount was agreed, which has meant that the date the treatment expenses were first incurred is not before the Court. I have made an assumption that the treatment expenses were fairly evenly incurred from the date of the accident to trial. Indeed, the steroid injections were a very recent expense, being incurred shortly before the hearing. A mid-point between date of accident and date of judgment is 1 February 2019. It is a convenient and appropriate date from which to award interest. Interest pursuant to ss 18(3) and 18(4) of the Civil Liability Act from 1 February 2019 to 31 January 2023 (4 years) is $310.95.
Conclusion
The plaintiff has succeeded in establishing liability against the defendant, and an entitlement to compensation by way of damages in the sum of $92,585.
On the basis that the usual order is for costs to follow the event, and the event is clear, I will award costs to the plaintiff. If either party seeks a different costs order, they are to notify the court within 7 days.
Orders
The Orders are as follows:
(1) Judgment is entered for the plaintiff in the sum of $92,585.
(2) Interest is payable on part of the judgment sum, in the amount of $310.95.
(3) The defendant is to pay the plaintiff’s costs.
(4) If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 3 is stayed until further order.
| I certify that the preceding one hundred and seventy-seven [177] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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