Granger v Cameron & Anor No. DCCIV-98-87

Granger v Cameron and Anor
[2004] SADC 64
Judge Herriman
Civil
INTRODUCTION

In this action, the plaintiff seeks damages for personal injuries he says were suffered by him when he fell from his motorcycle on an unmade access road to the second defendant’s property at Upper Sturt (“Upper Sturt”) on or about 24 January 1995.
He sues upon the footing that the accident and his injuries were caused by the defendants’ negligence, breach of contract and/or breach of statutory duty in failing to provide safe access to the property or to properly warn of the risks of accessing it.
At the time of the accident, the parties were friends and, as a result of earlier arrangements made between them, the plaintiff was residing at Upper Sturt and the first defendant was in turn residing at the plaintiff’s property at Woodville Park (“Woodville”), i.e. they had swapped houses.
The precise terms of their arrangements were, however, in dispute. The plaintiff said that, in consequence of an approach by the first defendant (“Cameron”) and in order to assist Cameron, as he was then anticipating a lengthy loss of his driver’s licence, he (Granger) agreed they would swap houses during the period of that suspension (a period which ultimately became one of 15 months). The effect of the swap would be to enable Cameron to more readily attend to his employment without the need to drive a car. The swap was upon the general basis that each would care for and maintain the other’s property, but specifically, he said, it was agreed that, as Upper Sturt was of a substantially greater size and value and contained more amenities, he would carry out additional works in and around it, to make up for the rental value difference between the properties, which they had agreed was $350 per week. Woodville was not well described at trial, but it appeared to comprise a standard house situated on an ordinary suburban block, whereas Upper Sturt extended over 10 acres in the Adelaide Hills, contained a two‑storey dwelling, tennis court and swimming pool, with substantial scrub or undeveloped space, and, plainly, it required considerably more care and management.
For their part, the defendants said it was agreed there would be a house swap and that each would maintain the other’s property, but they denied there was any agreement that Granger would carry out work on Upper Sturt to make up for the disparity in house values: the swap was no more than an informal arrangement between friends. They conceded that, of necessity, more work would be required in the ordinary maintenance of Upper Sturt, but it also provided greater amenities.
The plaintiff says that in consequence of his accident, he suffered superficial cuts and abrasions, and injuries to his neck, back and knees which, along with further disabling psychiatric consequences, have permanently disabled him for work. The defendants deny he suffered any or any disabling injury or loss.
The access road upon which the alleged accident occurred traversed property owned by the defendants’ neighbour, a Mr Tilly (“Tilly”), but it was common ground that the second defendant, as owner of Upper Sturt, enjoyed a right of way over it. It had an unpaved dirt, rock and shale surface, was some 1.2 kilometres in length and descended, at times steeply and in a winding manner from Olave Hill Road, a public road, to the point where it entered the Upper Sturt land. It afforded the only means of accessing that land, albeit that it also provided access to other neighbouring land.
The plaintiff says that the defendants had agreed with Tilly to maintain the road and keep it safe for users, but the defendants denied that assertion and at trial the plaintiff adduced no evidence of it, nor was Tilly called.
For the purposes of these reasons, I will refer to the first defendant as “Cameron” and the second defendant as “the company”. Otherwise, for reasons which will emerge and because it was alleged and admitted that Cameron was, at the relevant times, the company’s agent, I do not find it necessary to make any pertinent distinctions between the respective roles in the matter of the company and Cameron.
The Lay Evidence
- events prior to late 1993
Granger was born in January 1955 and is now aged 49 years. After leaving school, he obtained work experience in labouring, as a plumber’s assistant, in market gardening and as a groundsman. He was a talented sportsman and played League football in South Australia for several years, during which time he worked principally as a groundsman.
During his football career, he suffered a variety of injuries, but, on his account, never any back or neck injuries, although he did about this time suffer a back strain at work as a groundsman. It disabled him for about a week.
After his football career ended, he was employed in a bottle shop and afterwards in various tasks associated with work provided to members by the Painters and Dockers Union, of which he was a member. As that work began to diminish, he established his own business of “Dee Gees Demolition and Gardening Services” and worked in those fields. He nevertheless continued with such assignments as he was able to access through the union.
Cameron is now a member of the Legislative Council in the South Australian Parliament, and has been since October 1994. Prior to then, he had been State Secretary of the Australian Labor Party for nine years and, before that, had been employed by the Australian Workers Union for some seven years, amongst other things, as an industrial advocate.
Granger and Cameron met during the 1970s, whilst Granger was working as a groundsman at a College of Advanced Education. He was the union organiser there and dealt with Cameron over an industrial issue. They subsequently had other dealings and, in time, their professional relationship also developed into a personal one. It was not, on either account, a close personal relationship; they did not habitually meet each other’s families, but they did visit at home from time to time. It was more frequently the case that Cameron visited Granger at Woodville.
It is common ground that for a short period in 1992, Granger lived and worked at Upper Sturt, but the circumstances in which he came to do that were also contentious.
On Granger’s account, Cameron invited him there and showed him around. It comprised a two-storey house, swimming pool, tennis court and three dams on eight or nine acres of hilly and well‑wooded land. He saw it as overgrown, untidy with bracken and blackberries, and in need of work. He volunteered to fix it up. Cameron then asked him if he would like to stay up there and do that at a rate of $10 an hour. He agreed. That was a figure below his normal rate, but Cameron was a friend and he wanted to help. It was agreed he would commence working in the vicinity of the house and move outwards from there. He was to have his own room and bathroom but found he had to take his own bed up there, and did so.
Cameron was at that time separated from his wife, but had his three boys at the house and they dined together whilst he was there.
He stayed there working for a month, but as it transpired, there was more than a month’s work and he did not complete it. The work he did comprised tidying around the house, removing weeds and blackberry bushes and pruning trees and vines. He said that Cameron had there only “very basic hand tools” (p.48) and, as part of his work, he (Granger) arranged, at Cameron’s expense, for a bulldozer to be brought in, along with a four‑wheel‑drive tractor and slasher. He also fixed a valve on a dam pump and replaced the intake float. He worked ordinary hours for five days of the week and entered the time he spent in a time book, which he said was located in the kitchen of Cameron’s house. He said he was paid by Cameron on the basis of those entries.
He was able to say, by reference to the date of a photograph in the daily newspaper (P1), that that work was carried out by him in about March 1992. He had to leave the property soon after then, as he could not afford to stay there any longer. He had not by then completed all the planned tasks.
In cross‑examination, it was put to him that Cameron had actually asked and engaged him to work there after he had asked Cameron for financial help. He denied that and said he had not then been in need of help. Further, he denied initiating their discussions about his working on the property. He did agree, however, that at that time, his income had been irregular.
It was common ground that during his time there, he persuaded Cameron to purchase a Massey Ferguson tractor for use on the property, although there was a dispute as to its intended purpose. He said it was to be for his agreed ongoing maintenance of the property, whereas Cameron said something different. I will come to that.
Granger said that Cameron’s long‑term plan at that stage was to develop the property as a vineyard. Whilst the bulldozer was there, he suggested to Cameron that it be used to bulldoze the lower section of the access track, but that did not happen.
In his Defence, Cameron had denied that Granger had carried out work at Upper Sturt in 1992, but at trial he said that denial was wrongly made. He had at first forgotten about it, he said, but his memory had later been prompted and the details had come back to him. He denied that he had been obliged to concede these events after seeing the photograph P1. I must say that there was nothing I could see in that photograph that necessarily compelled him to correct himself about this.
He gave a different account of the events which led to the 1992 work. He had been visiting Granger at Woodville and had become aware that he (Granger) was not getting much work from his union, that he was doing some contract landscaping work and that he was having financial difficulties. At that time, he (Cameron) was also under some pressure, as a result of the joint custody arrangements he had for his children. The children were with him every day of the week and one weekend in every two, and he was concerned, because of his long working hours, about an adult being at the house when they returned from school.
It was for those reasons that he asked Granger if he would come to Upper Sturt for a few weeks to keep an eye on them and, in addition to do “a bit of tidying up work and gardening around the house” (p.709). Granger agreed and came up, he said, for “a couple of weeks” (p.809), during which time he did “two or three weeks”(p.810) slashing and “a bit of grass cutting” (p.710). As well, Granger kept an eye on the children.
He denied there was a time book, but recalled seeing a piece of paper on which Granger had noted down hours and days worked. He thought that he paid him cash of up to about $400 for that work at an agreed rate of $10 an hour, “mates’ rates” (p.803). He had no recollection whatsoever of Granger bringing his own bed to the property, but from other evidence, including that of his (Cameron’s) son Paul, there seemed to be no doubt that Granger did that.
Cameron further denied that at that visit, there was any discussion of a long‑term plan for Granger to carry out work on Upper Sturt:
“There was no specific arrangement that he would get continuing and ongoing work, either on a regular or irregular basis.” (p.811)
and
“There was certainly no plan, there was certainly no formal arrangement. Whether or not I made some statement to him about coming back some other time to do some gardening work, I don’t know. Perhaps that may have happened ... there was certainly no discussion about the plan and organising work, etc., etc. I can recall that David had talked me into buying a tractor and was going to come and do some slashing, that’s it”. (pp 844/45)
Specifically, he denied that he had ever planned to turn the property into a winery and said that he bought the tractor because Granger persuaded him that it could be used for slashing. He himself never intended to so use it, but he expected Granger and other workers might. He was unaware of precisely what work Granger did there over that time. He was prepared to concede, although he could not remember it, that Granger may have come back to the property on a couple of occasions after March 1992 and carried out some further work. He had a recollection of paying Granger $100 in cash at about this time, but he could not now recall what the payment was for.
He had no recollection of Granger then hiring a bulldozer, but did not deny it might have happened. He remembered seeing some felled trees heaped behind the house. He rejected altogether the suggestion that Granger had proposed to him it be used to grade the track and said that on the basis of what he knew, the only vehicle appropriate to that task would have been a grader.
- late 1993 - the arrangements for the house swap and afterwards
On Granger’s account, Cameron visited him in 1993 and during the course of a conversation, apropos of nothing, asked him whether he would like to live at Upper Sturt. Granger said he would and Cameron then proposed they swap houses. He said that Upper Sturt would likely attract a rental rate of about $500 a week, whereas Woodville would probably attract only $150 a week. Granger agreed with that. Cameron then asked whether he would be prepared to carry out work at Upper Sturt in order to make up the $350 difference between those rental values. Granger replied that he would, but not on the basis of a make-up rate of $10 per hour: he would need to take his equipment up there and would want to be paid at $20 per hour. Cameron, he said, agreed to that.
On Granger’s account, they did not then, or even afterwards, discuss the work that Granger would do on Upper Sturt because it was implied in their discussions that it would be simply part of the work program they had discussed and settled upon when he had gone there in March 1992. At that stage, Granger said, he did not ask Cameron why he wanted to swap houses, nor did Cameron volunteer it, and the conversation was left on the footing that he would speak to his girlfriend before committing himself to the proposal.
He subsequently spoke to her, Jayne Saul (“Saul”). She said she would be prepared to go up there, but only if the driveway was fixed up. She had previously been to the property.
He said that he subsequently telephoned Cameron and told him that he would accept the proposal and Saul would go with him, but she would only go if the driveway was fixed up. He did not say what, if any, response Cameron made to that remark.
It was some weeks after that that Cameron visited and told him that the reason he had proposed the house swap was because he was going to lose his licence. He thought this conversation was in about September or October 1993, because the swap was to take place on 1 January 1994 and they then had some months to prepare for it.
At that stage, he did not know that the company was the owner of the property, he thought Cameron was.
At all events, he said, the house swap occurred in January 1994 and he took virtually all his furniture from Woodville to Upper Sturt. Saul came with him.
He began work there immediately, remedying a vermin infestation, mowing the lawns (with his own mower) and restoring them to health, cleaning out the pool (so that it could be used), trimming vines and slashing and clearing blackberry and other bushes from an embankment, the tennis court wire and the shed. He worked 50 hours per week in the first month (on his figures, his commitment required only 17 to 18 hours). He got the tractor working and used it to pull stumps and to remove and dump rubbish, rocks and debris.
He also set up his workshop in the shed and began making hydroponic light shades there. That business went well and he worked at it 10 to 12 hours per week, mainly at night times.
In cross-examination, Granger said that Cameron did not, at the outset, tell him how long he expected to lose his licence for, that, from his point of view, the swap was attractive because he thought Upper Sturt was a “fantastic” place to live in, that he thought the arrangement was fair and that he wanted to complete the work he had started on the property in 1992. The actual date when the swap would begin and its length were not discussed until later.
It was suggested to him in cross‑examination there were no discussions about rental values or working to offset any difference in values, but he denied that.
On this topic, Cameron’s evidence was in stark contrast. He thought their initial conversation had taken place in about mid‑1993, although, later, when shown the summons relating to his driving offence, he agreed it must have been towards the end of that year.
He said that in their first discussion, he only told Granger of having been caught for drink‑driving, but subsequently he broached the house swap and in these terms (p.713/14):
“I said to David ‘David, I’m having problems with my wife’. I don’t know how I’m going to live at Olave Hill Road with no licence for 12 to 18 months ... There’s very little public transport up here. I’m 2 kilometres away from an infrequent public bus service that almost stops on the weekend. I’ve got no way of getting to work ... I’m concerned about my dog, Milo, he’s a red kelpie and he’s lived in the valley all his life ... I’m reluctant to go and rent a property somewhere and move a stranger in because of my wine collection. I don’t know what I’d do with that ... would you be interested in swapping houses for the duration of my loss of licence?”
On Cameron’s account, Granger “jumped at the idea” and “became quite excited” (p.714). He told Granger that he expected he would be losing his licence towards the end of that year or January 1994. Granger said “I’ll take very good care of your property, you don’t have to worry about a thing, everything will be safe with me” (p.714).
Granger then informed him that somebody was cutting his lawns at Woodville and he wanted that to continue. He asked if Saul could move to Upper Sturt with him. Cameron agreed to that. He said that was about the extent of their discussion. Nobody else was present when it occurred.
There was a later conversation when Granger asked him when the move was likely to take place, and he said he thought it would be early in the New Year, but Granger could move in any time after Christmas as he (Cameron) was then going overseas. He had no recollection of anything further being discussed and he himself moved to Woodville early in 1994, after returning from his trip. Granger had, in the meantime, moved to Upper Sturt.
Specifically, he denied any discussion with Granger about the rental values of their respective properties, nor about work that Granger would do around the property. He was asked (p.716):
“Q.Did you specify to him that he would be required to, for instance, do mowing, slashing of grass, cutting back blackberries.
A.There was no discussion, other than he would take care of the property.”
Granger had previously asked him whether he could tidy up the garage on the property and operate a business from there, and he had agreed to that, but otherwise the arrangement was simply, “I would take care of his property and he would take care of my property” (p.717). He conceded that there would be more work involved in maintaining his property because of its size and amenities, but there had been no discussion about rental values or about Granger doing work to offset the difference in property or rental values. Further, he said there had been no discussion or anything said, at that or any time, about the state of the access track and, indeed, it had never been discussed between them before Granger moved there.
In cross‑examination, he explained in detail the problems he faced with his impending licence disqualification, the demands of his employment and his desire to maintain his relationship with his children. He had considered a number of other options, but had eventually decided to approach Granger about the swap.

He said that, in any event and contrary to Granger’s account of things, his property would never have obtained a rental rate of $500 a week and he knew that. He had had quite extensive experience in the property rental market over a period of 20 years and had a fair idea of values. He had actually rented out Upper Sturt later, in 1998, and, even then, could get no more than $300 a week for it.
He conceded that he had always expected Granger to carry out some work on his property (p.876):
“Q.You expected him to do some work there, didn’t you.
A.The arrangement was that he would take care of the property and I would take care of his property.
Q.To maintain it.
A.To maintain and look after.”
There was never any intention, he said, that Granger would improve Upper Sturt, but in fact Granger did more work there than he had expected of him. He could not remember why it had not occurred to him, at that time, to ask Granger to carry out additional works on the property in the same way they had previously been carried out, but said it had not then crossed his mind and, further, he was in any event conscious of Granger’s desire to commence and operate his own light shade business from the property. He had not seen the swap as affording a chance to get work done on Upper Sturt and had simply regarded it as a solution to his problem and a favour from Granger.
He had not understood Granger to be saying that he would not come unless Saul did, but agreed that Granger had later told him that Saul was coming. It was then put to him that Saul had said to him that she expected he would fix up the track before she came up there. He said he had no recollection of such a conversation and thought it likely that he would have remembered it had it been said. Even so, he was not prepared to deny that it might have been said. He denied ever saying words to the effect of “You’ll get used to it”.
In fact, he said, he had no recollection of Granger ever raising the issue of the track prior to or during the time he was at Upper Sturt, nor suggesting its lower section be graded or bulldozed. There was never any discussion with Granger about doing work there other than by way of ordinary maintenance, by which he meant (p.890/91):
“... mowing the lawns, watering the lawns, edging the lawns, weeding. There’s a few gardens around. There was certainly no contemplation or expectation on my part that David would do anything other than maintain, take care of the property, look after it and not allow it to deteriorate. As it turned out, he was a pretty good gardener. The work that he had done did improve the property over the 12 months that he was there.”
And at p.895:
“Well, normal maintenance of my property does include slashing. This is not a quarter acre house block that we are talking about. I suppose the area that you would say is kept like a normal house block, that is, it’s maintained, it’s mowed, shrubs are planted on it etc. etc., would probably be, including the tennis court and the swimming pool, would probably be certainly bigger than a normal household block and part and parcel of maintaining that area requires a tractor to be used but requires slashing and David wanted to slash in and around the shed and around the dams.”
Even so, he said, some of that improvement rapidly fell away over the following twelve months. The property was not transformed, but it was improved and tidied. By its nature, however, it would quickly revert unless constantly worked at.
In the event, Granger appeared to take it upon himself to have carried out by others (at Cameron’s expense) some additional work at the rear of the property. At page 892:
“The overwhelming majority of it was work that was immediately in around the house, down in and around the shed and the dams, not some of this area David took it upon himself to do at the rear of the house.”
And at page 893:
“This was just – the bulldozer just went through and I guess, ripped the top off a bit of broom, throws up a bit of blackberry and what I call small gum trees and I’m probably reaching the stage where I’ll probably get that done again in the next year or two. It hasn’t been done since David did it back in 1992. It’s just not something that needs to be done all the time. Every 10, 15 years you might run a bulldozer through it. It’s just native scrub that could have been up there for five or six years.”
When he first visited the property during 1994 after Granger had gone there, the work had been done in and around the house and it was work of which Granger could be proud because he had cut the lawns, tidied the gardens and cut the brush growth off the tracks near the house.
He specifically denied the suggestion that Granger had rung him some short while after he had been at the property, asking him to do something about the track and saying he had nearly gone over the edge of it.
Their contact during 1994 was sparse because he (Cameron) was away quite a lot during that year. There were no conversations between them about what Granger was doing, nor what he should be doing at the property. The only conversations he recalled concerning Granger’s role up there, were when Granger rang about the purchase of some poison, the purchase of a tractor and the installation of new locks in the house.
He retreated from the pleading in paragraph 4.3 of his Defence, saying that he did not in fact purport to give notice to quit to Granger at any time, but he did ask him to go earlier, both in late 1994 and again in February 1995, but Granger did not want to so he did not press the matter.
Other witnesses spoke about these particular events, but what they said about Granger’s account of his arrangements with Cameron was received by me for the limited purpose of rebutting the challenge, made to Granger in his evidence, of recent invention. I will nevertheless discuss it.
Saul recalled Granger telling her his intention to work at Cameron’s. She said she asked him if the track was going to be fixed up and said she would not drive down it. That evidence was not of itself probative, but went to explain Granger’s claim that he repeated that comment to Cameron.
She said Granger told her he was going to work off the difference in rent between the properties by keeping Upper Sturt “maintained and clean and tidy” (p.597).
She said that once they arrived at the property, Granger was always working there. The property needed a lot of grass‑cutting and Granger used the mower and also the slasher. He moved rocks near dams and did general tidying. It was a big property and it had been “left overgrown ... there were a lot of things on the property that needed to be looked after and maintained” (p.537) (my emphasis). Granger worked on the property during the day and in the shed at night. He did a lot more in the beginning, including the slashing, and after then, it was more a matter of maintaining the property. She thought he worked six to nine hours a day at first, and probably less afterwards, but he was always doing something there.
Saul’s brother, Brenton Baird, also gave evidence. He said that Granger told him “‘I am swapping houses with Terry to work up there and look after the place’ while Terry was using his place” (p.432). Granger told him that he was going to have to work 20 hours a week there to “basically keep the property maintained” (p.434) and that the arrangement with Cameron was that he had to work those hours to make up the rent.
In re‑examination, he said that Granger told him he was working up there “to offset Mr Cameron staying down there, like it was an agreement, that he had agreed to look after his place for whatever time it took to maintain that property” (p.462).
Peter Way had at one time shared premises with Saul and he visited the property nearly every second weekend when Granger was there. He said Granger was always cleaning up and the property, to his observation, had been tidied up “immensely” (p.504).
Steven Jeavons had been a friend of the plaintiff for many years and in mid‑1994 went to Upper Sturt. During the course of a conversation, Granger told him that he had agreed with Cameron to work off the difference in rent as his house was “only worth a couple of hundred a week and this is worth 600 a week” (p.644). He suggested to Granger that that was not a very commercial arrangement, but Granger said he was helping out. He visited the property seven or eight times and “couldn’t believe the transformation in the property” (p.644). He had not been to it before Granger was living there.
Stephen Mahoney had known Granger through their joint involvement in the Australian Workers Union and he also knew the first defendant. He said that Granger told him about the house swap and the reason for it, namely, that Cameron had suggested that Granger could do gardening and landscaping work to balance out the difference between their house values. His conversation with Granger took place within weeks of Granger going there. He had then taken the view, and expressed it to Granger, that such an arrangement was inappropriate because Granger was doing Cameron a favour, but Granger had told him he was prepared to do it.
He recalled visiting Granger at the property in January 1995 with his wife and staying overnight. He had last visited it in 1991, when he attended a fundraiser there and there were 40 or 50 guests. In 1995, it had changed a lot, with scrub and grass cleared and tidied, and Granger took him out to show him the work he had done around the house and the dams.
- the track
There can be no doubt that certain parts of the access track to Cameron’s property, comprised within the right‑of‑way, were steep and winding. So much was common ground. Equally, it is plain that the composition and state of the track surface varied from place to place and from time to time, according to ordinary wear and tear, weather and other disturbances on the track or the ground above it.
Photographic evidence was tendered at trial (P2) showing the track at a time which Granger was unable to identify, but which was some time after he first instructed solicitors to act for him in 1996. It was common ground, too, that, since the time of those photographs, the track had been altered and widened at the relevant part at the instance of another landowner, who also held a right‑of‑way, to provide him with access for vehicles associated with building works on his property. I was not, in consequence, invited to inspect it. On Granger’s account, the track was not in a markedly different condition at the time of the accident from that shown in P2 and, indeed, Cameron did not seek to argue that the photos were atypical, albeit that on all the evidence he cannot have been in a position to say exactly how they compared with the state of the track at the time of the alleged incident – he had not himself been there for some three or four months before then.
The composition and the steepness of the track varied from place to place along its length. At the top near the road gate, there was a section of about 150 metres which, on Cameron’s evidence, had become boggy during the course of construction work on his house and, indeed, he had been involved in a dispute with a contractor over a truck which had stuck there. That section had a heavier soil cover, he said, and became sticky when wet, but he had been able to solve the problem by putting two inches of quarry rubble over it.
On either side of the track, as it descended, was native scrub and it was frequented by native animals, including kangaroos, koalas, echidnas and, occasionally, escaped horses or cattle: It’s like driving a car through the middle of a gum tree forest. Trees come right up to the edge of it ...” (p.704) ... “There was a few other occasions where a rock or a boulder had fallen on to the track” (p.705) from the embankment above it. The embankment, he said, was six or seven feet above the track, which was cut into the hillside. He said one had to be careful driving down it and there were two parts, in particular, where more care had to be exercised. The first was a sharp 90‑degree downhill turn which also occasionally flooded. It was flat and wide, but had to be negotiated in low gear and using brakes as well. The second part was near where the accident allegedly occurred, where there is another sharp bend to the left as one goes downhill (p.706):
“Approaching that corner, you would want to be on your brakes unless you were going quite slow because it’s a sharp corner and even after 20 years I still find myself braking. You’ve got to brake and slow yourself down at that corner.”
At that point, he said, the road also has a camber or slope to the downhill or right‑hand side.
As well as being subject to ordinary wear and tear, the track was affected by water run‑off from rain, it would develop ruts, and rocks embedded in it would from time to time come loose.
Cameron had lived there for 20 years and estimated that he had traversed the track as many as 20,000 or 25,000 times. Likewise, his wife and three boys had used it on countless occasions. In fact, he had taught his sons to drive on it because it was private property and they were able to and did drive along it frequently, for many years before reaching the required age for holding licences.
As well, over the years he had held a number of fundraising and other functions at Upper Sturt, probably up to five of them. He commented: “Hundreds of people have visited my place over the years. I will rephrase that, including the fundraisers, there would be thousands” (p.703). He had heard of only one accident on the track and that was when one of his sons reported that a friend of theirs had been drinking and driving too fast, had come off the track and slid over the embankment.
Apart from the bogging incident, trucks and heavy vehicles had accessed and successfully negotiated the track when his house was being built.
He had never come to any agreement with Tilly about maintenance work on it. In the early years, he had seen Tilly from time to time and they had spoken, but the track had never come up as a topic, except on one occasion when, he remembered, he had told Tilly he was having some work done on the track. They had never discussed whose responsibility it was to maintain it, but he had taken it upon himself to do that work. He thought he had graded the track four or five times over 20 years. He thought he had graded it twice before 1992, the last time a few years before then, some time between 1989 and 1991, and he did it to “to provide for an easier ride down the track. It’s downhill, and every three to five years it would need grading, depending upon usage and other factors I suppose” (p.822). It was put to him:
“Q.The fact that it’s steep and it has that sort of camber makes it important, or creates certain dangers, doesn’t it, firstly. Steepness of the track, the fact that it cambers away.
A.It certainly requires a bit more attention than driving on straight road, yes, it’s downhill.” (p.822).
He was then shown a photograph of the area in the vicinity of the alleged accident site and said that was not an area that was particularly prone to problems of rutting or corrugations. It was not “subject to very much wash‑off. Basically that’s a much flatter part of the track” (p.823).
He conceded in cross‑examination that rain and the movement of vehicles would wear the track surface and expose and loosen rocks, but he also commented that rocks would sometimes fall down onto the track from the embankment above. Sometimes he had to get out of his car and remove them. The presence of rocks on the track was not a problem that could be cured by grading. Even after it was done, there were always protruding rocks. The grader would simply smooth the road, remove the ruts and maintain the camber. Some of the ruts were too big to be graded: it had to be kept in mind that the track was “... a rough road track cut into the side of a mountain with shale, rock and dirt and clay in it” (p.827).
He had last seen the track before the alleged accident, in September or October of 1994. He had had it graded again in 1997 or 1998 and, later, in 2001 or 2002. He had attempted in that second‑last operation to bind the surface using dolomite, but that had worked for a short while only and it had then been washed away.
In summary, then, including the quarry rubble that he had laid to the track, he had worked on it in 1983, 1985 or 1986, between 1989 and 1991, 1997 or 1998 and 2001 or 2002. He did not have any receipts in respect of those works and would not ordinarily have retained them, anyway. He thought one of the graders was a man called Craddock.
I have discussed, first, the evidence of Cameron as to the track because he was able to give a more detailed account of it.
Quite apart from the disputed evidence about Granger allegedly saying to Cameron that Saul required the track to be fixed up before he went there, Granger said also that he had specifically telephoned Cameron during the time he was at Upper Sturt and prior to his accident, to discuss the condition of the track and the need to have it fixed. He had done that because one of his friends had driven down it once and thereafter refused to use it, leaving her car at the top of the track instead, and also because of an incident he himself had been involved in. He had been driving his Holden down the track towing a trailer containing steel, when he felt it begin to slide off the track near an area of exposed stone and loose dirt. To prevent the car sliding into the bushes near the dam, he had swung the wheel so that the car collided with and came to rest against a tree beside the track. He produced a photograph of his car and pointed to a dent which he said had been caused by that accident. In consequence of those two matters, he had rung Cameron and asked him to do something about the track because he had nearly gone into the dam. He said Cameron had scoffed at him.
For his part, Cameron denied there was any such conversation and went on to say that the layout of the property was such that one could not go into a dam if one came off the track, anyway.
Granger went on to say that during their stay there, there were some problems experienced with Saul’s car and on two occasions she told him she had lost her exhaust pipe on the track. He had wired it back.
Otherwise, he went on to describe the condition of the track at or near the point where he had the accident and I will come to that in the next topic.
In cross‑examination, he said he had not spoken to Tilly and he was unable to say where the allegation that there had been an agreement between Tilly and Cameron about track maintenance, had come from.
Prior to and during 1992, he had driven to the property in his EJ Holden and he had seen others use the track, as well. During the time he was at the property in 1994, he had negotiated it “easily a couple of hundred times” (p.154) by car, van and motorcycle and before that time, in addition to his use in March 1992, he had probably traversed it once a month. Once he acquired his trail bike in 1994, he traversed it three times a week for about 40 weeks. He bought the bike because he thought it was safer to use on the track.
He had thought from the beginning that the track was dangerous, but he had never seen any other accident occur on it other than those he related, nor had he heard of one. He had told Cameron it was dangerous the first time he had driven down it. He had said that in 1992 and had suggested Cameron get a bulldozer to level it. Cameron denied that conversation, but said that in any event, a bulldozer was a quite inappropriate machine to carry out such a task.
Granger was unable to say how many times he had been at the property, but agreed he had traversed the track over two hundred times and said he did not feel unsafe every time. He just treated it with respect and was careful.

He agreed he had ridden the motorcycle off the track at times and generally around the property. He denied the property was rough for a trail bike, and most of the land had been mown or had tracks cut through it. He did not think that other areas of the property were necessarily rougher than the access track (p.359). He denied he was going too fast around the bend or misjudged it.
Saul spoke of the nature of the track. She recalled Cameron coming to Granger’s house one day while she was there and spoke of the conversation wherein she said that if he wanted her to drive down the track, he had better get it fixed up. Cameron had laughed, she said, and commented “You will get used to it” (p.533).
She then said that she felt the track was dangerous. She had travelled down it slowly in first gear in an old car. It was bumpy and she was very cautious on the bend in question. She was accustomed to driving on bitumen.
She had not experienced any incident driving down the track, but at the point where the accident was later said to have occurred, she said, “there were bits of slate and bits of rock, there wasn’t just one, there was quite a few sticking up” (p.546). She did not see any marks on the roadway indicating how the accident occurred.
She had driven up and down the track very frequently during 1994, taking her daughter to and from school. She had driven it “hundreds of times” (p.565).
Baird said that where the accident was said to have occurred, there was a fairly sharp bend in the track and it was the point on the track where you had to be most cautious. There was a shale outcrop: it appeared to him that water had run off the hill at that point, exposing slabs of shale or a soft type of rock. He himself had tried to avoid using the track and would not traverse it in wet weather “because the wheels would tend to slip and slide, and it was slow in parts, a bit uneven when we were going over it with the exhaust and what have you” (p.443). He thought it was still “pretty slippery” when dry and he was always cautious in using it. He had driven up and down it seven or eight times in the year prior to the accident.
Way said he had driven up and down the track on every visit to the property. It was steep, cambered to the right, corrugated, slaty, rocky, with furrows from rain. It was generally in what he described as “ordinary” condition. On occasions, he had difficulty negotiating it, but he had had no accidents. Once his back end slipped. He drove down it as slowly as possible, with his brakes on. He had seen Granger ride the track on his motorcycle a number of times and had seen other cars use it over 12 months. He had himself used it probably 30 times. He had, however, seen people park their cars at the top of the track and not use it.
When he went to the motorbike after the accident, there were no marks on the road indicating what had happened.
Smith described the track as steep and said her car picked up speed in first gear. She found she had to brake and proceed more slowly. She described the surface as loose and there were lots of small rocks and stones on it. After experiencing that, she had decided not to use the track and would leave her car at the top and walk down. She had driven on tracks on farming properties in the Hills before and had some experience of unsurfaced roads, but she thought this was the steepest track she had used.
Jeavons said the track was pretty rough and “frankly I thought it was dangerous” (p.646). It was “fairly heavily corrugated and fairly heavily rutted and it was gravel and from memory I think a slate type base” (p.647).
Mahoney described the track as steep and rough, with ruts and washouts and loose stones, but he said he was able to negotiate it, albeit at a slow speed. He was specifically challenged as to his evidence and his relationships with Granger and Cameron. He had known of the case before being asked to give evidence and had discussed it on social occasions with Granger, on at least one occasion.
He had seen Granger return to Woodville on the bike on several occasions in 1995, but he could not say whether any of them were after the time of the accident. Granger had been a close friend of his whilst they both lived at Woodville and they had seen each other socially. It was put to him that there had been a falling‑out between Cameron and the Australian Workers Union at a time when he was an officer of that union. Somewhat glibly, he responded that it depended what you meant by a falling‑out, but Cameron had left the union and he had stayed.
- the plaintiff’s accident and the events immediately following
The day of 23 January 1995 was the plaintiff’s birthday and he invited some guests to Upper Sturt to celebrate it with him. He had given up drinking since 1989 and he was not sure that any of the attendees at his party drank any alcohol. Present there were Saul, Brenton Baird and Peter Way.
On the morning after his birthday, he decided to ride his Yamaha 500 trail bike to the Upper Sturt general store to buy some bread, some food for breakfast and a newspaper. The general store was about four kilometres away and he had gone there every day or so. If there was any mail for Upper Sturt left there, he would collect it. He believed that Cameron had originally arranged to redirect his mail to Woodville, but some letters addressed to Cameron had still come to the store so he had collected them and arranged either himself, or through Saul, to take them to Cameron at Parliament House.
On this particular morning, there was some mail (he could not say whether any was for Cameron) and he collected it. He otherwise made some purchases at the store, put everything in his backpack and set out on the return journey. His bike had “knobbly” tyres and he had bought it because he thought it was easier and safer on the track.
As he came down the access track, he reached the last bend, which became known at the trial as “Koala Bend”, and:
“A.... I hit a rock with the front tyre of the bike. I didn’t see the rock but I know it was a rock by what happened.
Q.Perhaps you better explain, how do you know it was a rock.
A.Because the handlebars on the motorbike tank slammed and I felt the rock under the tyre slip and when the bike slipped on this rock, the handlebars come slap back into the tank and it just went out from under me and I went straight over the top of the handlebars” (pp 93/94).
He said he landed on the track with all his weight on the back of his neck and shoulders. He crunched his neck and then “went slap on the ground on my back towards the edge of the road on the rocks and then I slid over” (p.94). He slid down the embankment and the bike came down with him and ultimately rested on top of him. He was grabbing at blackberry bushes to slow his descent.
At the time of the accident, he thought he had been travelling at between 10 and 20 kilometres an hour and in the way he normally rode down the track.
When he came to rest, the bike engine was running, the wheel was spinning and petrol was coming out of the carburettor. He was concerned at the risk of fire. He stopped the wheel spinning and the engine stopped. His backpack strap had become entangled in the bike and as he pushed it off him, that broke. He managed to scramble up the bank, checked he had no broken bones and then walked to the house.
Saul and Baird met him there and took him inside, where he sat down and had a cigarette. Way was there. He then went and had a shower, but he was concerned about the bike still being there and the leaking petrol so, along with the others, took a rope from the shed, went up to it and used the rope to pull the bike up to the track. He was able to start it straight away, so he rode it back to the house.
For the rest of the day he lay down on the lounge because he had a “crook back, a crook neck and I was in shock ...” (p.97). He also had cuts to his fingers and blackberry thorns in him.
He did not go and see a doctor because he thought he would get better.
He did not feel well the next day and had the same symptoms. Saul wanted him to see a doctor, but he did not. Eventually, a few weeks later, he went to see Bill Noonan, a chiropractor. He had known him as a football umpire and he had also had treatment from him for his strained back. Noonan was later able to confirm that that visit was on 13 February 1995. At that time, he was having trouble with his lower back, neck and between his shoulders.
I will deal with his injuries later.
Baird recalled attending the birthday celebrations and staying overnight. He remembered Granger setting off on his motorbike to get the paper. He saw him leave and later saw him walking back to the house. It was much later than he had been expected and Granger appeared to be shaken. Granger then said he had “hit a loose bit of stone and came off the bike, slid into the blackberries” (p.439). They all helped him, removing his backpack, which smelled of petrol, and he noticed there were crushed items in it.
He described how they all went back to the scene and retrieved the bike from the bushes off the side of the road.
Granger did not mention on that day having injured his neck or back.
Way recalled that on the morning after the birthday, Granger took orders for food and papers and set off on his bike to the local store, which Way thought was about five minutes away. He appeared to have been absent longer than expected and he then saw Granger walking back towards the house and not moving well. He was shaken up, with blood over him, and his clothes and backpack were torn. Granger told him that he had had an accident and his bike was in the blackberry bushes. He said he had hit a rock at the bottom of a hill. Way said everybody then went to where the bike was and saw it lying some few metres down off the road. There were no marks on the road. Granger appeared shaken up and complained his whole body was sore.
Saul had slept in on the morning after Granger’s birthday and he had left for the store by the time she got up. He was gone longer than expected and then she saw him walking back to the house, looking dishevelled. They went out to meet him. He was pale and his backpack was flattened, “(h)e said that he’d come off the bike on Koala Bend as we called it, and he’d been in the blackberries for so long ... he’d hit a rock on the track and come off the bike” (p.545). She could smell petrol on him. They returned to the house, but Granger wanted to retrieve the bike because of the petrol, so they went back there and the men pulled it up using a rope.
She wanted Granger to go to a doctor, but he said he was all right. She helped to remove blackberry thorns, but did not recall him making any specific complaints at the time. He said he was sore all over. Later that night, she saw him sitting on the edge of the bed and he said his hips and lower back were hurting. She remembered that he later went to see Noonan. By that time, he had slowed down his level of activity and was only doing his maintenance tasks for short periods before resting.
Later again (on 27 February 1995, according to Noonan), she had seen Noonan herself and, upon enquiry, had told him Granger was “fine”. That description was, she said, just a manner of speech.
- plaintiff’s injuries and aftermath
I have briefly touched upon the events immediately following the alleged accident. Granger, as I have noted, did not at first see a doctor and only saw Noonan, the chiropractor, on 13 February 1995. He told Noonan how he had had a motorbike accident “on a real rough track up in the hills, and he hit rocks and over he went” (Noonan at p.633). On Granger’s account, he did not see Noonan again. However, according to Noonan, he did see him again, on 24 April of that year, but it was then about a neck problem which had resulted from Granger “doing crosswords on the floor, doing crosswords for extended time, and got a sore neck” (p.636). In the meantime, Saul had visited him on 27 February 1995 and had told him, upon enquiry, that Granger “was going all right” (p.635).
On Granger’s account, this was not the case at all. During the period after the accident and before he left the property in early April 1995, because of his injuries he did minimal work there, mainly watering. He did not tell Cameron about the accident then, because he did not want to upset him. By the time he moved away from Upper Sturt, his back and neck had not improved and he had virtually closed up his light shade manufacturing business.
In cross‑examination, he agreed that that had involved packing into a van a number of his light frames and then driving to town to deliver them.
He saw Dr Papagiannis in mid‑1995 (on Dr Papagiannis’ account, this visit was 28 June). Dr Papagiannis was his regular general practitioner and he went to him because of his injuries, his depression and trouble with his bowels. Dr Papagiannis referred him for tests for the bowel problem and referred him to Alfreda rehabilitation clinic for his back and neck. No report was tendered or evidence led about his treatment there.
In the meantime, he said, he telephoned Cameron and told him of his back and neck complaints, but did not say how he had injured them. It was only after that first visit to Dr Papagiannis that he told Cameron they had been the result of an accident on the track. He said he had hit a rock at Koala Bend and gone over the handlebars, landing on his neck and back. Even so, he did not then say anything to Cameron about making a claim on him. He said that he was putting in a claim for mortgage protection insurance. Cameron’s response to that was to say that it would have been better if the accident had happened on the bitumen road, not on the track. He did not ask Cameron why he said that.
Cameron gave quite a different account of how the accident was disclosed to him. He said that, having been told something by his son Paul, he had broached the subject of the accident with Granger in about April 1995 and that Granger had more or less dismissed it and said nothing about having suffered an injury in it. At page 748/49:
“... I asked David, I said ‘David, Paul said you came off on the track. Everything all right?’. ‘No worries mate, I come off on the bottom bend, went into the blackberries’. He said he got a bit of petrol on him, but he was fine.”
Later, in mid‑1995, Granger told him he was making a claim on his mortgage protection policy because his knees and back were “fucked” (p.737), but even then, he had no recollection of Granger suggesting that the accident was responsible for these problems. They had then stayed in contact until late 1995 or early 1996.
After the accident, Granger said, he did very little work at Upper Sturt or later at Woodville. He demolished a fence at Woodville to enable a contractor to erect a new one, but it took him three to four weeks, when ordinarily it would have taken him a day. Otherwise, he did not earn any income between January and August 1995 and his condition deteriorated, particularly the depression. Dr Papagiannis referred him to a psychiatrist and he was put on various antidepressants and tranquillisers. He had a limited recollection of events following that. He did not work and was not aware of what was going on around him.
In 1998, he got into trouble for growing marijuana at home. He had grown it for his own use because he found it helped him dull the pain he was suffering. Otherwise over that time, he was constantly seeing Dr Papagiannis and his psychiatrist, Dr Barrow. This continued up to the year 1999. He described his attempts to commit suicide, first in 1995 and, later, in 2002.
In August 2002, through a friend, he was able to obtain work as a storeman with Tim the Toyman. He had thought the work would be relatively light, but did not cope well because there was reasonably heavy lifting involved and it affected his back and neck. He was awaiting the opportunity to go out on the road, selling, but it did not happen because in December 2002 he fell down some stairs at work whilst carrying an industrial fan. That brought an end to his position and aggravated his back and neck pain, in consequence of which he brought a worker’s compensation claim. He continues to be in receipt of worker’s compensation.
He was tested in cross‑examination as to pre‑existing bouts of depression. He first said he had not suffered from it before the motorcycle accident, but then corrected himself and said he had had it once, when his wife left him in 1988. He had then gone to Hillcrest Hospital by himself.
He said that prior to the accident, he had been 98 per cent fit, his only problems being sore fingers and some arthritis. It was put to him he had had a motor vehicle accident in December 1994, but he could not remember it. On being pressed, he said he recalled coming off Cameron’s mower and falling three metres down a bank, jarring his ankles and knees. He did not hurt his back on that occasion.
Even during the time he was working at Tim the Toyman, he took painkillers every day and was having Vitamin B injections. He was still suffering, then, from depression and sleep disturbances, but conceded that he did not seen a doctor while he was working there.
His neck and back pain have continued since then and were present even as he gave evidence. He had been on painkillers continuously and he could not at first say whether his condition was worse than it was before the incident at Tim the Toyman. Eventually, he said, “It’s worse. It’s aggravated” (p.345).
Brenton Baird commented, in his evidence, that Granger had been fairly active before the accident, but afterwards did not seem to engage in any physical activity and always seemed to be in discomfort. Granger complained to him of an uncomfortable back and irritable bowel and he was less flamboyant.
Peter Way said that after the accident there was no more tennis or swimming at the property and after Granger left Upper Sturt, his “whole nature changed ... He wasn’t social, didn’t want to leave home, like agoraphobia, just not interested, obsessed with his health” (p.509).
Jeavons said much the same of him.
Saul observed that after the accident Granger slowed down quite a bit and would frequently rest. He would do tasks around the property for only a short while and was simply attending to upkeep. Her comment to Noonan about Granger being “fine” was just a passing comment and, in fact, after then, Granger continued to complain about his back and general health. He was not sleeping, could not sit for long and his mood changed. She later helped him around the house at Woodville.
She commented that on one occasion when Cameron visited them after the accident, she heard him say to Granger “You had better make up your mind what your injuries are from” (p.557).
In 1996, Granger continued to complain of back pain and of feeling depressed and worthless. She spoke of his suicide attempts and of their trip around Australia, when he had trouble coping with sitting on a plane or any prolonged posture. He had been upset when his mother became ill in 1995. At that time, too, he was affected by his dispute with the Port Adelaide Football Club. Indeed, “most things” worried him (p.587).
She also spoke of an occasion whilst they were living at Upper Sturt when she saw Granger at the bottom of an embankment. She thought he had been operating a slasher before then and he had apparently fallen. He then said his leg, hip and back were sore.
She did not know whether Granger had injured himself moving broken‑up concrete from his driveway, but she knew he had had an operation in about September 1996.
Before I turn to discuss the medical evidence relating to these claimed injuries, it is appropriate that I should discuss the steps taken by Cameron in connection with this claim.
- did Granger subsequently visit Carrington Street Apartments and speak to Paul Cameron?

Whilst I have not been directed to any authoritative discussion of the duty owed by a licensor to a licensee in situations similar to this matter, I have derived some assistance from the remarks of the High Court in Jones v Bartlett (2000) 205 CLR 166. There the court found that a landlord of residential premises was not in breach of any common law duty of care owed to the tenant’s son, who had walked through a glass door.
The plaintiff also failed in establishing that the landlord was an occupier for the purposes of relevant occupier’s liability legislation, albeit that that aspect of the decision turned on the statutory provisions there under consideration. This finding thus has no direct relevance in this matter, save that I note in passing that Gleeson CJ commented, at paragraph 50:
“It may be accepted that the respondents were occupiers immediately before the commencement of the lease, and, in so far as their alleged negligence consisted of a failure to arrange for an expert assessment of the premises at that stage, then it could be related to their occupancy. However, ss 4 and 5 of the Act assume a temporal relationship between a defendant’s status as occupier and a plaintiff’s entering upon the subject premises. The proposition that the respondents retained the status of occupiers throughout the term of the lease, jointly with the tenants, by reason of their control over repairs and alterations, is unacceptable. The right to exclusive possession of the premises was in the tenants.” (my emphasis)
Those observations have some significance in the context of the relationship which I have found existed here, that is to say, that the defendants were occupiers immediately before the house swap began, but that they ceased to be occupiers once it commenced.
Otherwise, the court had some difficulty in identifying the proper ratio of Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. In their joint judgment in Jones, having considered Parker v SA Housing Trust (1986) 41 SASR 493 and Cavalier v Pope [1906] AC 428, Gummow and Hayne JJ observed (para. 166):
“The result is that in Australia it is no longer correct that a landlord never owes any duty in negligence to occupants in respect of the condition of residential premises. The rejection of the rule in Cavalier v Pope does not, however, go so far as necessarily to impose a duty upon the landlord to any person who may be on the premises at any given time.”
At para.168:
“The starting point is to consider the relationship between the landlord and tenant. In Northern Sandblasting, in a passage in which Gummow J agreed, Dawson J said of the duty of care between the landlord and a guest lawfully on the premises that it was: ‘that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case’.
This statement also holds true of the duty between the landlord and tenants. However, it is only the beginning of the inquiry. The difficulty lies in determining the nature and extent of any duty that exists and that which constitutes a breach thereof. The ‘circumstances’ to be considered may differ between landlord and tenant and landlord and other persons.”
At para. 92, McHugh J observed that the landlord should have no higher duty than an occupier, that, following Zaluzna (supra), he “is only required to take such care as is reasonable in the circumstances”. See also Owners Strata Plan 30889 v Perrine [2002] NSWCA 324.
Against that background, I am satisfied that:
(1)The defendants ought reasonably have foreseen that their acts or omissions in the care and maintenance of the track might harm third parties accessing it.
(2)In the nature of their relationship as licensor and licensee, there was present a level of “circumstantial” proximity sufficient to give rise to a duty of care owed by the company to Granger with respect to his use of the track. The nature of that duty of care was, however, a very limited one. As I apprehend it, it can have been no higher than that espoused in Jones (supra) as applicable to a landlord/guest or landlord/tenant, namely, a “duty to take reasonable care to avoid foreseeable risk of injury”, albeit that “the nature and extent of that duty” will be contextual.
In this context, I am satisfied that reasonable care required the defendants to ensure that:
(a)the track was in such a condition that it could be safely accessed provided the special care I have spoken about was exercised;
(b)Granger was alive to or made aware of the need for that special care to be exercised;
(c)Granger was able in the particular circumstances to exercise that care; and
(d)they promptly responded to any requests by Granger to effect repairs to the track reasonably required to preserve its safety beyond those required by way of ordinary maintenance.
(3)Here, the risks posed by the steep and winding nature of the track and its surface were so “obvious to a person exercising reasonable care for his ... own safety” (Romeo, supra, at para. 123), that there was no need for the defendants to warn Granger of them. They were obvious at the time the licence agreement was reached because, as I have noted, Granger had visited Upper Sturt and accessed the track many times before then. After living on the property for a further twelve months, Granger cannot but have been fully alive to them. There was not, in all the circumstances, any need for the defendants to make Granger aware of the need for that special care I have identified.
(4)I find that Granger was a mature adult very familiar with the track and at the relevant time very experienced in driving on it with both cars and a trail bike and, indeed, he often rode that bike around the property. He had traversed the track on some hundreds of occasions beforehand.
In Romeo (supra) Kirby J observed (para. 123):
“The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety [McLean v Tedman (1984) 155 CLR 306 at 311-312; Nagle (1993) 177 CLR 423 at 431] ... Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just ... It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them [Cekan v Haines (1990) 21 NSWLR 296 at 299‑300].” (my emphasis)
(5)The defendants were in all the circumstances entitled to assume that Granger well appreciated the need to negotiate the track with care, and particular parts of it with special care.
(6)Granger did, indeed, appreciate that need. So much is apparent from his evidence and the fact he had successfully negotiated it so many times before.
(7)Granger made no requests of the defendants to repair the track.
(8)I am not prepared to infer, simply because the plaintiff lost control of his motorbike, that the accident arose from some condition of the track for which the defendants must be held responsible. It has not otherwise been shown to my satisfaction that any particular defect in the track (for which the defendants should be held responsible) caused the loss of control.
(9)further, I should say I am satisfied that the duty of care falling upon the defendants diminished as the plaintiff continued in occupation of and assumed a general responsibility for the maintenance of Upper Sturt and access to it, to the point where it became one merely of reasonably responding to any requests by Granger for extraordinary maintenance and repair work. None were made.
(10)Even if there remained a continuing duty upon the company to provide Granger with safe access, I am satisfied that it was not breached, as I am not persuaded the accident resulted from any breach of it. If the condition of the track did cause the accident, I am satisfied the plaintiff was, by then, fully alert to the risk he undertook, consented to it and was the author of his own misfortune.
For all these reasons, the plaintiff’s claim, however formulated, must fail and I dismiss it.
Had the plaintiff otherwise succeeded, I would have assessed his damages as follows.
DAMAGES ASSESSMENT
On the basis of my findings that the plaintiff’s degenerative neck and back condition were aggravated and made symptomatic from the time of the accident until some time in April 1995, by which time they had completely abated, i.e. before his second appointment with Noonan – I am satisfied he was deprived, during that period, of the opportunity to work in his light shade business. There is no evidence he would likely have earned income from any other source in that time, as he remained at Upper Sturt until 5 April 1995.
As to his earning capacity in that business, there were advanced in support the amended tax returns P4 and P5 relating to the 1994 and 1995 years. I have already discussed the circumstances in which they were prepared. There was no supporting documentary evidence and his statements of earnings in those years were no more than estimates.
I have already found that he worked until 15 August 1995 and it must be inferred that part of his 1995 income relates to the period April to June 1995.
I have grave reservations about the accuracy of his asserted income in 1995, but doing the best I can and allowing that he worked at his business for, say, 40 weeks in 1995, I estimate his average gross weekly earnings in that time at $580 per week. Nett earnings would thus be approximately $500.
Over the period of 12 weeks there would have been a loss of nett income at $500 per week, or $6,000. Added to that sum in lieu of interest would be the sum of $3,250.
I am not persuaded the accident caused any income or other loss after that time. There is evidence he saw Dr Papagiannis from June 1995 until September 1995 (six occasions according to P9) about his back, neck and other problems, but he did not seek to attribute any of them to the accident until after September of that year and then it was only his neck pain. I am satisfied, given that he worked from April until August 1995, that if any back or neck pain was present by the latter date (and I have serious reservations about that), it was as a result of aggravation of his degenerative spinal condition – as, indeed, were the later asserted episodes of back pain, save perhaps for the consequences of his accident at Tim the Toyman.
Likewise, I am not satisfied, on the evidence, that his depression was caused by the accident. It was always, as Dr Schrader observed, multifactorial and I am not persuaded the accident and its brief interlude of pain and discomfort contributed in any material way to it. He had a history of that condition and the other events in his life, including his numerous other health problems, his degenerative back, his concerns about his mother’s health, his ill‑fated attempt to pursue a mortgage protection claim, disputes with his former solicitor, the defence of several criminal charges, his convictions on three occasions over cannabis charges, the demise of his marriage and his relationship with Saul, and his obsession with redressing against the Port Adelaide Football Club, all combined with his vulnerable nature, were the principal contributors to it. Nevertheless, I will allow something in his damages for the contribution to his depressive condition, however minimal, brought about by the accident.
Taking account of all that I have said and his bruising and abrasions, I would have assessed his general damages at $3,000.
As to special damages, there is only one attendance which relates to my findings and that relates to his seeing Mr Noonan on 13 February 1995, a claim of $30, which I would have allowed.
Damages would thus have assessed at $12,280.

[2004] SADC 64

28 April 2004