Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney
[2011] NSWDC 172
•10 November 2011
District Court
New South Wales
Medium Neutral Citation: Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2011] NSWDC 172 Hearing dates: 09/08/11-12/08/11, 26/10/11-28/10/11, 31/10/11, 2/11/11 Decision date: 10 November 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 178
Catchwords: Personal injury. Non-delegable duty of school for skiing lessons by another party. Legislation Cited: Trade Practices Act 1974
Civil Liability Act 2002Cases Cited: Commonwealth v Introvigne (1982) 150 CLR 258
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Galea v Bagtrans Pty Ltd [2010] NSWCA 350
Mason v Demasi [2009] NSWCA 227
Penrith City Council v Parks [2004] NSWCA 201
Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308Category: Principal judgment Parties: James Anthony Harris (Plaintiff)
Trustees of the Roman Catholic Church for the Archdiocese of Sydney (First Defendant)
Perisher Blue Pty Limited (Second Defendant)Representation: M Maxwell and P Lott (Plaintiff)
J Keesing (First Defendant)
P Biggins (Second Defendant)
Brydens Law Office (Plaintiff)
Makinson & D'Apice (First Defendant)
Dibbs Barker Lawyers (Second Defendant)
File Number(s): 2009/00336355
Judgment
The plaintiff is a part-time bartender. He would rather be a plumber. The reason he is not a plumber is because he injured his back on 29 July 2006. He was then a school student on an excursion to the New South Wales snowfields. The injury occurred during a beginners' lesson. The plaintiff says that the defendants are responsible for his injury. Initially he alleged they were negligent, in breach of contract and in breach of the Trade Practices Act 1974 ("the TPA").
The latter two causes of action were abandoned during the hearing. The claim thus falls entirely within the Civil Liability Act 2002 ("the CLA"). Another important concession occurred on the final day of evidence (31 October 2011). The plaintiff said his allegations against the first defendant were derived from its non-delegable liability for the negligence of the second defendant. All allegations of primary negligence against the first defendant were abandoned.
The defendants accept that at the relevant time they owed the plaintiff a duty of care. They deny there was any breach of the duty and also rely on certain sections of the CLA to extinguish the duty. The second defendant also said the proceedings against it should be dismissed because they were commenced outside the relevant limitation period. This 'defence' was abandoned in final submissions.
The first defendant has a cross-claim against the second defendant seeking full indemnity, or alternatively a contribution, in respect of any damages for which it is found liable to the plaintiff.
The plaintiff originally sought damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and past and future domestic assistance. The claim for past domestic assistance was abandoned when it became apparent that thresholds posed by the CLA would not be met. The claim for future care was abandoned in final submissions. Past medical expenses were agreed.
The first defendant, for present purposes, is the school that the plaintiff attended from Years 7 to 10. It is called Penshurst Marist Brothers School, ("PMBS"). The second defendant is the operator of a ski resort located at Perisher in the Snowy Mountains. The second defendant's activities include the provision of skiing lessons.
The plaintiff's background
The plaintiff was born on x xxxx 1990. He started at PMBS in 2003. He was not a very good student. He had a very high absentee rate. He was in good health.
The plaintiff's ambition was to be a plumber. At the time of his injury he intended to complete Years 11 and 12 to make him more attractive to potential employers. Following his injury he left school at the end of Year 10 (2006).
The accident
In early 2006 the school invited the parent body to pay a deposit for their children to attend an excursion to the snowfields. Parents that paid were sent a letter in March 2006 giving details of the trip (Exhibit D). The details included the date (28 July to 30 July 2006), the price and the fact that " 2 x 2hr daily beginner ski lessons " were included.
In June 2006 (again Exhibit D) the school wrote to the parents giving more detail of the forthcoming trip. This letter stated that the two hour beginner lessons would commence on 29 July. The parents were told:
"For safety reasons, the boys will be told to ski in groups of at least three people. If there are any problems, there will be a teacher stationed at a designated point throughout the day to whom the boys can report."
The June 2006 letter included a questionnaire to be completed by a parent. Question 6 enquired whether the student was a beginner or intermediate skier. The form prepared for the plaintiff indicated that he was a beginner. It is common ground that the plaintiff had never skied before the excursion.
50 students enrolled for the excursion. The bus 'to the snow' set off at around 1pm on 28 July 2006. Before departure the Principal, Mr Tony Duncan, and a teacher, Mr Burg, addressed the students. The latter, an experienced skier, was to be one of about nine teachers accompanying the students.
The students spent the night in Jindabyne. The next morning, fitted with their rented clothing and skiing equipment (boots, stocks and skis) the students arrived at the Perisher Resort, in particular at an area called Smiggin Holes. This area is commonly used for lessons. It has gentle slopes and an open apron (Exhibit 2D4). Although there are specific 'runs' they tend to merge towards the bottom of the slope (Exhibit 2D1, photograph 1).
The beginners were assigned to an instructor. The plaintiff's instructor was Mr Thomas Wanner. There was initially considerable dispute about how many students were in his class.
Documents produced by the second defendant indicated there were 10 students in the group (Exhibit 2D8). The plaintiff ultimately accepted this number. The allegation that the class was too big was not pressed.
The plaintiff called two other students to give evidence, Mr Ragonese and Mr Morris. Mr Ragonese was the first witness. His version of events was that for about half an hour the students were taught 'basics', including how to go uphill sideways and how to descend using the snow plough position to both control speed and effect turns. Following the half hour the instructor took the students about 50 metres up a slope using a T-bar to assist their ascent. It would appear that this T-bar was called the Hume T-bar (Exhibit 2D4).
Mr Ragonese said that once the students had gathered on the slope the instructor asked them to ski down the hill. The plaintiff set off before Mr Ragonese who was about 15 to 20 metres behind him. He noticed that the plaintiff increased speed and when he was three-quarters of the way down the slope, the plaintiff disappeared. Mr Ragonese then saw the plaintiff's skis up in the air and the plaintiff flat on his back. He said that skis forming an 'X' were placed in front of the plaintiff as a warning to other skiers.
Mr Ragonese said that when he stopped alongside the plaintiff's position he noticed a ditch having a depth of 70 to 80cm located on the uphill side of the plaintiff. He did not describe the width of the ditch but the inference from his evidence, in particular from the use of the word "ditch", is that the feature seen by Mr Ragonese was more akin to a crevasse than an undulation. It was not suggested to Mr Ragonese that the ditch did not exist. It is also worth noting at this stage that the incident report prepared by the second defendant, apparently on the day of the accident, includes the following:
"Injured person's description of the incident:
"First time skiing could not stop going to fast tried to avoid ditch fell backwards onto back." (Exhibit 2D2).
Mr Ragonese placed the accident at about 10am. He rejected the suggestion that it occurred closer to 11am. Mr Ragonese also rejected the following suggestions:
(a) That before the run on which the plaintiff was injured the students had been taken on shorter runs. Mr Ragonese said that his recollection was that the plaintiff was injured on the first run.
(b) The ski instructor had told the students to ski behind him. Mr Ragonese said, to the contrary, that the instructor said that he would be behind the students.
(c) The gradient of the slope was about 15 degrees. Mr Ragonese said it was more like 25 to 30 degrees.
The plaintiff said that he knew skiing was dangerous. The plaintiff did not remember a Mr Brad King on the bus to the ski fields giving a talk about the forthcoming skiing activities.
It was submitted on behalf of the plaintiff that his evidence was to the effect that he had not been taught to turn. I do not think this is an entirely accurate summary of what he said. His evidence is to some degree contradictory. I refer to the following two passages:
"Q. Were you taught to turn in the caged area?
A. When we got to the bottom from going start and stop, we had - we did have to do a slight left turn too so we didn't hit the wall. We were told what to do to turn, but there wasn't much practising of turning inside the caged area.
Q. When you had to turn inside the caged area, was it a turn whilst you were skiing?
A. Yes." (T 128.16)
"Q. I suggest to you that you were taught to turn in a snow plough.
A. I do not remember being taught to turn in a snow plough." (T 169.7)
Paragraph 21 in Exhibit 2D5 corroborates the second answer given above. I think this an opportune time to discuss the weight of this exhibit. Although, like the matter just mentioned, the 'statement' does corroborate some of the plaintiff's evidence, it also contradicts other evidence. For example, at paragraph 29, the plaintiff says the instructor went down the slope ahead of the group. In his oral evidence the plaintiff said the instructor remained behind the group. The defendants submitted that the statement should be preferred to the plaintiff's oral evidence. The plaintiff responded that the statement was not signed, had not been adopted and was obviously a draft. The plaintiff made the unusual observation that he thought his memory would have improved since making the statement, apparently in a barrister's chambers in about August 2010.
The defendants submitted that the statement was likely to be correct because it appears to have been dictated by the plaintiff. This assertion was based on his evidence at page T 242.40 where he refers to "talking to a microphone" . I frankly do not understand from the answer given by the plaintiff what he means when referring to the microphone. I would think it very unlikely that his statement was dictated in that manner.
There are a number of other inconsistencies between the statement and the plaintiff's oral evidence. It does, however, corroborate him on a significant point. Paragraphs 35 and 36 of the statement are as follows:
"35. I went over the mound and as I got over the other side I noticed a ditch in front of me. By the time I saw the ditch I couldn't move out of the way to avoid going into it.
36. I sat down on my bottom as I had been instructed to and I was sliding and I still going too quick and my feet went into the ditch."
It is difficult to reach a conclusion on the accuracy of the statement. On the one hand it was made at a time closer to the accident. The notion that the plaintiff's memory has improved since August 2010 is untenable. On the other hand the statement has not been adopted, was obviously not completed and had never been checked.
The contents of the statement favour, in different aspects, each side. I think it would be dangerous to benefit either side by finding confirmation in the statement. I think the safer approach is simply to ignore the statement in assessing the plaintiff's evidence.
The plaintiff's version of the accident in oral evidence was not dissimilar to that given by Mr Ragonese. He was adamant that the accident occurred on his first run down the slope. He did say that he had fallen off the T-bar on two occasions and it was on his third attempt that he finally made it up the slope to join the rest of the class. The plaintiff's evidence was that it was a T-bar but he said that it was only for one person and the middle of the bar was placed between his legs. The description of the way the lift was used is more consistent with a J-bar.
Whatever the type of lift the plaintiff used to ascend the slope his evidence was clear to the effect that there had only been one type of lift used and there had been no practice runs over a short distance.
The plaintiff was also adamant that the instructor had not led the way down the slope, rather he was behind. This was why he had turned around to call out for assistance.
According to the plaintiff he had made some turns before he found himself going straight and picking up speed. He then yelled backwards that he could not stop. He was told to put his skis together but this did not work. He called back that he would "see you at the bottom" . In relation to putting his skis together I think the plaintiff was, in fact, describing a snow plough although he did not use that term. He did, however, demonstrate with his hands the angle of the skis necessary to stop. This was in reference to the lesson at the bottom of the hill.
Once the plaintiff had picked up speed he saw a mound ahead of him that was about half a metre high and two to three metres wide. He went over it and then, about 20 metres ahead, saw a ditch. He knew that he could not negotiate the ditch so he sat back. Unfortunately this made him go even faster and he ultimately caught one of his legs in the ditch and he was "flipped" over. One ski came off and was wedged into the ditch.
The plaintiff rejected the suggestion that he had gone to the right before his accident. He said he had gone straight down the mountain. The plaintiff said that as he descended the snow felt like ice.
The plaintiff found himself lying on his back with no feeling in his legs. He had a sharp pain in his back. The pain was such that he began to cry and covered his face in embarrassment.
A couple arrived. The man sought help. The lady ministered to the plaintiff's discomfort.
The instructor soon arrived and also Mr Burg the schoolteacher. Some of the students gathered around. The plaintiff was transported to the medical centre.
The plaintiff agreed that there were about nine teachers on the school trip and that the headmaster and Mr Burg had spoken to the students before they set off. He remembered being told that lessons would be organised, that they should listen carefully to the instructors, that they should ski within their ability and should be careful.
Mr Ryan Morris was a very impressive witness. In addition he had the advantage of having made a statement relatively soon after the events. He conceded that his memory in the witness box may have faded and he stated clearly matters that he could not recall. Mr Morris' statement (Exhibit 1D3) was made on 11 September 2006. I think the important things to be taken from his statement, and also from his oral evidence, are the following:
(a) There was a comprehensive talk about safety and the dangers of skiing at the school before the trip commenced. There was also a talk on the bus " about precautions and sticking to your own level of skiing. " (paragraph 6 of the statement).
(b) "The class started about 9.15am and there were 8-10 people in the class" (paragraph 7 of the statement).
(c) The clear inference from paragraphs 8, 9 and 17 of the statement is that there was at least one and probably two practice runs before the run on which the plaintiff was injured.
(d) Once the plaintiff lost control he did not go straight down the slope but veered to the right (T 270.7).
(e) The instructor was probably behind the plaintiff (paragraph 10 of the statement).
(f) The plaintiff went into a ditch before falling (paragraph 16 of the statement).
Mr Morris, as seen above, did confirm the presence of a ditch. Not only is it mentioned in his statement but also in another document he wrote (Exhibit F). In this document Mr Morris stated:
"He went down a ditch in the snow and as he came back up the ditch he prepelled (sic) about 1-2 metres forward, doing a forward sommersault (sic) and landing on his back."
The ditch is not described in either statement but in his oral evidence he said it was "circular and environmental. The circle had a two metre diameter." He could not comment on the depth of the ditch. I am not sure exactly what he meant by the ditch being " environmental " but he seemed to suggest that it was a natural feature as opposed to a constructed depression.
The impression created by Exhibit F (as quoted above) is that the ditch must have been of some substance to cause the plaintiff's movements as described in the statement.
I think this an opportune time to state that I reject the attack made, especially by the first defendant, on the plaintiff's credit. He was not always a reliable witness but he was certainly not the dishonest, exaggerating plaintiff described by the first defendant. Both the plaintiff and Mr Ragonese seemed to me to be witnesses who were doing their best to recollect events which took place over five years ago when they were 16 years of age.
The first defendant called Mr Burg to give evidence. He is an experienced skier and has been leading the annual school ski trip since about 1991. The same general programme was pursued each year. The trip was booked through an agency which in turn engaged the second defendant to provide the lessons. The bulk of the class was made up of beginners.
In about April 2006 Mr Burg requested and received a risk management appraisal from the second defendant (Exhibit 1D10). The headmaster then requested that the school do its own risk assessment. The headmaster and Mr Burg then prepared Exhibit 1D11. I think the description of this document as a risk assessment is somewhat misleading. In my view it is more of a "what to do if a risk eventuates" guide than an instruction on how to prevent risks occurring in the first place. Relevantly to this case the document stipulates what should happen once an accident has occurred. It says nothing about preventing the accident.
Mr Burg said that before the bus left, the students were addressed by himself and the headmaster, Mr Tony Duncan. His address mostly concerned safety on the ski fields. He stressed that skiing could be dangerous and the students should stay in groups and ski within their ability. The headmaster's talk was more concerned with behaviour generally while on the excursion.
Mr Burg said that on the bus the following morning from Jindabyne to Smiggin Holes the students were addressed by a Mr Brad King, a representative of the tour agency that had organised the trip. Mr King had told the students to "be attentive in ski lessons" .
Mr Burg said that once the group had arrived at Smiggin Holes they were organised by the ski school into groups of 8 to 10. Mr Burg said he stayed in the general area near the bistro and he saw the boys being taught basic skills. He could not recall seeing the students go up the lifts.
At about 11am a student told him that something had occurred. He and Mr King walked to the accident scene. It was about 200 metres from his position, in an open area at the bottom of the run. At the scene he found the instructor and a member of the ski patrol. He could not remember if there were other people present. The plaintiff was placed on a board and then sled and taken to the medical centre. Mr Burg stayed with him.
Once back at school Mr Burg prepared a statement for the school and another for the school's insurer (Exhibit 1D13).
I find the contents of these statements to be somewhat defensive. This is because:
(a) The statements are reports on an accident. They gave almost no detail of how the accident was said to have occurred. Although Mr Burg did not see the accident presumably, as teacher in charge, he made enquiries as to the events.
(b) Even though the accident was not a product of the plaintiff ignoring any warnings the typed report emphasises the warnings about safety.
Under cross-examination Mr Burg agreed that a mogul is a significant bump. He said he did not expect that Smiggin Holes would have moguls about half a metre high or that there would be ditches of some 70 to 80cm in depth. When he had attended the scene he had not noticed either of these two features. He had not deliberately examined the terrain. He was, reasonably, more concerned about the plaintiff's condition. For this, and the following reasons, I do not place any weight on Mr Burg not seeing the mound or ditch:
(a) There were a number of people on the scene who might have obscured his view.
(b) The mound was 20 metres from the ditch (T133.19).
Mr Burg said that he was not sure if the plaintiff had told him how the accident happened. I find this answer very difficult to accept. The plaintiff had made it very clear that he had encountered a ditch (see for example Exhibit 2D2).
The second defendant called Mr Ray Milford. He has been the Safety Compliance Manager for the second defendant since 2000. He is generally responsible for all the safety issues at the resort.
Mr Milford said that the morning would start with a check by the Area Manager. He would ride up and down the lift area and inspect the grooming that had been carried out over night or perhaps earlier in the morning. The grooming machine was available to the manager in case further grooming was necessary.
At about 7am the lifts would be checked and then a ski patrol, at about 8.15am, would inspect the area where skiing took place. The patrol would look for dangerous conditions and erect warning signs if necessary.
Under cross-examination Mr Milford said that no records were kept of the safety checks so it was not possible to access any information confirming that a safety check had been carried out on the day of the plaintiff's accident.
The second defendant did not call any witness who might have carried out an inspection of the snowfield on the day the plaintiff was injured. No explanation was given as to why the Area Manager or a member of the ski patrol could not have given evidence. I infer that no evidence was available to the second defendant that might have assisted its case on verifying the checks that were carried out before the snowfield was opened on 29 July 2006. The most that can be made of Mr Milford's evidence is that there was a 'usual' system.
The second defendant tendered two statements from Mr Wanner (Exhibit 2D6). He did not give evidence because he is in Austria. Despite some initial skirmishing about the validity of a Section 67 Notice the statements were tendered without objection. In considering the statements I take into account that Mr Wanner was not available for cross-examination.
The first statement was completed on the day of the accident. This statement raises some difficulties arising from the language used. English is obviously not Mr Wanner's first language. The two words that created most debate are "stood" and "pump" . Although Mr Wanner's second statement was obviously prepared with legal proceedings in mind, he did not take the opportunity to clarify what he meant by the two words.
The suggestion that the class may have "stood" for about 20 minutes at the T-bar seems unlikely especially as Mr Milford said that classes were given priority in the use of the lifts.
Paragraph 19 of the second statement is perhaps of assistance. The students may have spent the 20 minutes practising getting on and off the T-bar. It is also a little unclear from the balance of the paragraph as to whether the T-bar was used over the next 30 minutes or whether the students simply skied in the vicinity of the lift.
More important, I think is what is meant by a " pump " in the first statement. Under the heading "Students Behaviour" Mr Wanner has written "hit a pump, landed on his back" . The makeup of the word suggests that a pump refers to a bump. The plaintiff maintained there was a mound before the ditch, but there were 20 metres between the two features. The plaintiff made it clear from the start that a ditch had caused him to fall over (Exhibit 2D2). On balance, I think a pump probably does refer to a bump, in particular because of Exhibit 2D3. Although prepared by a ski patroller the diagram in this Exhibit lists Mr Wanner as a witness and depicts a feature corresponding to a mogul in the Legend.
Other than confirming the presence of the mogul I find Mr Wanner's statements of little assistance. His second statement, which one might have expected to give more detail of the accident, in fact glosses over the accident itself. The latter statement, on my reading, is an overtly defensive document designed to avoid the suggestion of fault.
After the accident
The plaintiff was first treated at the Perisher Medical Centre. A cannula was inserted into his hand. A neck brace was also fitted and he spoke to a doctor who told him that he may have injured his back and he needed to go to Canberra Hospital. Although the plaintiff could not remember x-rays being taken at the medical centre, it seems that this in fact occurred.
The plaintiff went by ambulance to Canberra Hospital where he remained until 1 August. He was then airlifted to Sydney and transferred to St George Hospital. He said he remained there for about seven weeks and was then discharged into his mother's care.
An examination of the St George clinical notes shows that the plaintiff was discharged from that hospital on 15 August 2006. When this was put to the plaintiff in cross-examination he said that he felt as if it had been about seven weeks. It became apparent that the plaintiff's appreciation of dates was not reliable. This emerged both in relation to his stays in hospital and when he carried out certain employments.
He was at home for a week before returning to hospital on 22 August 2006 for nine days.
The plaintiff returned to school in mid October and sat the School Certificate exams. He did not do well and he decided not to proceed to Year 11. He felt he would not be able to cope because of all the work that he had missed.
The plaintiff remained at home for some time, becoming proficient at computer games. In about March 2007 the plaintiff began assisting his father at his delicatessen. He worked for three or four days a week and was paid $50 per day. His father described the payment as an " allowance."
The plaintiff then started a pre-vocational six month course at Gymea TAFE in plumbing. He passed the necessary examinations and enrolled for the second year at the TAFE. He found a job as a first year apprentice with Gas Water Energy. He was paid $250 per week. Shortly before the end of his three month trial he gave up the job. He found the labouring work too much for his back. He did not have much difficulty during the day but was in a great deal of pain when he arrived home.
The plaintiff's next job was at the Rockdale RSL as a barman. This commenced shortly after he turned 18. He worked at the Club for about seven months and then moved, in the same capacity, to Club Central and later to a club at Bexley. His next job was at the Kogarah Inn Hotel where he remained for about six months. He then had two weeks working at Harvey Norman but soon found that it was "not for me" .
About two months later the plaintiff commenced his current job at the Bankstown Golf Club as a barman. He works 20 hours per week and earns about $400 per week net. There is no opportunity to increase his hours because the Club closes at 6pm.
As I have said above the plaintiff's evidence about when he worked in various jobs was unreliable. The details I have given above are subject to this unreliability and the best I can accept is that he was employed as he said but not necessarily when he said. The chronology tendered during the hearing is probably more dependable (Exhibit H).
It was put to the plaintiff that he had not made genuine attempts to find work or, in essence, to mitigate his loss. It was suggested that he might work two part-time jobs or return to study to give him better options in his future career. The plaintiff accepted that he had not done much in the way of improving his position, although he did say that working fulltime, in a job such as a bartender, would be too much for his back.
The plaintiff is considering returning to school to complete Year 12 and then study to be an accountant.
The plaintiff agreed that he had not sought any treatment since seeing Dr Laws in August 2006. He nevertheless maintained that he still had a sore back, which having regard to his injury, is not surprising. The plaintiff was closely cross-examined, on behalf of the first defendant, about various histories given especially to Dr Ellis and also concerning notes of examinations in hospital. I did not find this cross-examination helpful especially having regard to the plaintiff's age when Dr Ellis interviewed him. I am also mindful of the warnings stated by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2).
The cross-examination concerning the plaintiff's loss of feeling in his legs also did not assist me. I accept the plaintiff in stating that he had a loss of feeling. It is to be recalled that he had suffered fractures in his back and was required to be immobile for some time and then wear a brace. He was 16 years of age and no doubt shocked and upset by his predicament. It is quite natural that he might have felt some concern about his legs.
It is, however, the fact that there was no injury to his legs and he does not have any referred pain from his back.
The plaintiff also gave evidence about pain in his neck. Objection was taken because the injury was not included in the Statement of Particulars. This is a lamentable document. Its particularisation of the plaintiff's damages is clearly inadequate. The allegation was not pressed.
The plaintiff said that he still has pain in his back, which he feels most acutely in the mornings when he gets up from bed. He needs to stretch. He finds his back is tight when he lifts and after long periods of sitting or standing. The plaintiff said he takes two Panadol tablets a day and Nurofen or Nurofen Plus when the pain is particularly bad. He was advised to go to the gym which he does four or five times a week. He said that his back was "not too bad" at work.
The experts (non-medical)
The plaintiff relied on a report by Mr Warren Feakes (Exhibit B). Mr Feakes also gave oral evidence. Although his specialty is in Nordic skiing he was obviously a very experienced instructor and was familiar with the Perisher Blue ski fields.
The immediately noticeable feature of Mr Feakes' report is that he is not given a version of the accident. Rather he is asked general questions. The result is that he makes no comment on the actual events that befell the plaintiff.
Mr Feakes said that one of the fundamentals for teaching a beginners' class was for the instructor to be satisfied that the area upon which the students would ski, was safe. To this end the instructor should have inspected the area before the lesson. This evidence was objected to as not falling within the scope of the expert's report. I delayed discussion of the admissibility of the evidence (noting that the objections were largely taken after the evidence had been given).
I ultimately allowed the evidence to remain, in particular because its effect was substantially watered down by a later answer of Mr Feakes. He had described, under cross-examination, the process that occurred before a ski field was opened. This included an inspection, principally by a ski patrol, of the area paying particular attention to the identification of hazards. Mr Feakes, in answer to a question I asked him, said that if a lesson was at the beginning of the day the instructor's obligation to inspect could be met by his reliance on the inspection that had taken place to enable the ski field to be opened (T 98.17).
Mr Feakes' description of a day's beginning generally matched the evidence given by Mr Milford.
Mr Feakes was shown Exhibit 2D2. Under the heading " Location type " he said that the box " on piste " referred to a groomed surface. He said that grooming was the process of smoothing out the surface and producing a corrugated effect. Grooming was subject to limitations posed by natural obstacles. For example the grooming machine might not be able to work between trees.
Mr Feakes said that the intent of grooming was to produce hard packed snow. Exhibit 2D2 indicates that this was the state of the snow at the scene of the injury. Mr Feakes said that this type of surface was the surface best suited for beginners.
An example of a groomed surface can be seen beneath the date in Photograph 4 of Exhibit 2D1. The photographs were initially said to have been taken about four weeks after the plaintiff's injury. This assertion is contradicted by the date that they bear (31 August 2010). I treat the photographs as general depictions of the areas they encompass. I take nothing from the apparent gradients, undulations, state of the vegetation or locations of any signs. The photographs are at best an aid to identifying the ski lifts, their type and their location.
I do not think I do Mr Feakes a disservice to say that his general opinion is essentially a formula for careful instruction of beginners from learning the basic manoeuvres of starting, stopping and turning and ensuring their progress to a level where they can descend a reasonably gentle slope.
There was no dispute that in the area where the lesson took place the slopes were graded as " Green " which indicates the most benign classification. Mr Feakes said that the classification took into account both the gradient of the slope and the absence of obstacles. It is against this background that the presence of a "ditch" has to be considered.
Mr Feakes was shown Exhibit 2D3. He said he was familiar with the type of document but he could not confidently translate the locations indicated to the photographs in Exhibit 2D1. The Legend in Exhibit 2D3 suggests the presence of a " mogul " close to the point of impact. Mr Feakes said a mogul was a "purpose built undulation". He said he would not normally expect moguls on a Green slope (T 87.42).
Mr Feakes was cross-examined about the assorted risks of skiing and the possibilities of accidents caused by the very nature of the skiers being beginners learning to achieve the necessary balance required for the sport. He agreed that skiers, in particular beginners, might lose control. However, he also gave this evidence:
"Q. It's just one of the unfortunate things that can happen to beginners, generally without the consequences that we had here. Isn't that the case?
A. Within a lesson I would expect that if the building blocks have been followed and the supervision is there, it is possibly but generally shouldn't happen." (T 89.34)
Mr Feakes agreed that if the instructor had a Level 1 qualification, together with four years experience, he was well qualified to take a beginners' class.
The second defendant tendered an expert report from Mr Gow (Exhibit 2D7). He also gave oral evidence. His cross-examination concentrated on the nature of the terrain. Mr Gow accepted that his estimation of the site of the accident was not precise and generally based on Exhibit 2D3.
Of particular importance in Mr Gow's evidence was his identification of the snow depth on the day of the accident. He said it was low. The terrain would have been covered with mostly man made snow. The ground beneath the snow would have been more apparent.
Ultimately I think Mr Gow rejected the notion that if a mogul was present it had been created by skiers pushing the snow into a mound. It was too early in the day for this to have occurred, in particular if the mound had reached a height of half a metre. With a snow depth of only 20 to 30cm any mound was more likely to have been a product of the terrain beneath the snow.
Mr Gow said it was not unusual for there to be a mogul on a beginners' slope but he would not have expected there to be a ditch near the mogul.
The medical evidence
There are detailed notes from the hospitals that the plaintiff attended which assist in tracking his early treatment and progress. There is a report from a general practitioner, Dr John Law, who the plaintiff consulted on 21 August 2006. There has been no further report from Dr Law, although I do note that the plaintiff said he had received no further treatment for his back from this doctor. Dr Law's report does, however, mention that Dr Erica Jacobson, a neurosurgeon, was following up the plaintiff. At this stage the plaintiff was still wearing a brace and his treatment was ongoing. The plaintiff did not tender a report from Dr Jacobson.
The balance of the plaintiff's medical material consists of four medico-legal reports from Dr Max Ellis, a general surgeon.
Dr Ellis first saw the plaintiff on 9 April 2009. He took a history that indicated the plaintiff was then working as an apprentice plumber having commenced in February of that year. If this date is correct then the plaintiff's evidence of when he worked as a plumber is one year in error. The doctor also refers to the plaintiff's legs being "paralysed" for about 11 days.
Dr Ellis also has a history of neck pain as well as limitation of movement. I have already noted that because of the inadequacy of the plaintiff's Statement of Particulars he was ultimately deprived of pursuing his allegations in respect of his neck.
Dr Ellis' two subsequent reports are essentially updates of the original report. The most recent report (25 July 2011) is a commentary on reports served by the defendants.
In his report of 17 May 2011 Dr Ellis describes a person who has made a good recovery but nevertheless remains with significant periods of pain in his back, intermittent paraesthesia in his feet and limitations on simple activities such as prolonged walking.
Dr Ellis says there are significant restrictions on the plaintiff's capacity to work and that "he is in need of extensive vocational assistance and assessment and rehabilitation into a field of employment which is not physically demanding" . Dr Ellis did not envisage further treatment other than intermittent physiotherapy and some pain relief.
Despite the possibility of a number of errors in the doctor's recording of the plaintiff's history, his views are consistent with the overall impression I had from the plaintiff's oral evidence to the effect that he had continuing pain in his back especially when carrying out tasks such as bending and lifting. The doctor's views also accord with the plaintiff's evidence of his difficulty with tasks that one would envisage being involved in a plumber's daily schedule.
In addition to his reports Dr Ellis gave oral evidence. His testimony took an unusual early turn when he suggested that the opinions of doctors reporting for insurance companies might be influenced by the financial rewards (T 416.5). He did not, however, specifically suggest that the doctors reporting for the defendants in this case were so compromised. I have disregarded his comment.
The burden of the cross-examination of Dr Ellis concentrated on establishing that his opinion would have been different with a correct history.
Dr Ellis initially agreed that the history of paralysis and traction were significant. He refused to countenance the possibility that this history was incorrect, referring to the possibility as simply theoretical. When, however, he was taken through the medical records from Canberra Hospital and St George Hospital, but after a good deal of debate about whether nurses were qualified or notes had been signed, Dr Ellis finally agreed that his history of paralysis and traction could not be substantiated.
Despite this concession and despite his initial comments about the significance of the paralysis and traction, Dr Ellis maintained his opinion, relying on the fact of the fractures as sufficient justification.
I found Dr Ellis' effective refusal to substantially amend his opinion to be more of a defensive than a reasoned approach.
One thing I should say in fairness to Dr Ellis is that he asked, on a number of occasions, for access to any report by Dr Jacobson. The plaintiff had not tendered any report from this doctor who was the plaintiff's treating neurosurgeon. Her records were, however, the subject of a subpoena. Despite Dr Ellis' request the cross-examiner did not show him the report contained within the subpoenaed documents but chose, rather, to tender this document after Dr Ellis had left the witness box. The report is Exhibit 1D7. The implied criticism I have just made of the cross-examiner must be tempered by the fact that Dr Jacobson's report is extremely terse and probably supports the defendants' position. I particularly refer to the entries of "no pain" and "no leg weakness or numbness" .
My reservations about Dr Ellis' evidence do not, however, lead me to automatically accept the opinions of the defendants' medical experts.
Dr Matheson, a neurosurgeon, found little wrong with the plaintiff, suggesting that it was "unusual" that his symptoms had persisted for so long. Despite this, Dr Matheson agreed with Dr Ellis that the plaintiff needed vocational assistance and "that there is no evidence of psychosomatic illness" . He also, somewhat inconsistently with his general comments on the plaintiff's work capacity, said: "I think it would be inadvisable to return him to the plumbing industry" .
The other doctor relied upon by the defendants is Professor Ehrlich, a rehabilitation specialist. His report also contains some internal inconsistencies. On the one hand he describes the fractures as minor but then says that the plaintiff's "present complaints are solely due to his skiing accident" . Professor Ehrlich's first report is dated 11 March 2010. It must be assumed that the Professor accepted that the plaintiff's complaints in 2010 were referable to the skiing accident almost four years earlier. Professor Ehrlich does not agree with Dr Matheson in relation to the plaintiff's work capacity. Professor Ehrlich thought the plaintiff was "fit for a full range of normal activities" .
Accepting, as I do, that the plaintiff suffered no neurological deficit as a result of the fractures, I think the ultimate assessment of his medical condition falls somewhere between the opinions of Drs Matheson and Ellis. There is no doubt the plaintiff suffered a serious injury. More at issue are the continuing effects. Dr Ellis stressed that the statistical results of such injuries did not favour complete recovery. He said that 48% of persons who suffer such an injury did not return to their normal occupations. If one includes the opinion of Dr Matheson that the plaintiff should not return to plumbing work then one is left with an injury from which there has been substantial recovery but nevertheless a continuing deficit in the plaintiff's capacity to do plumbing work or work of a similar nature. Adding in the plaintiff's continuing complaints of pain, which I did not find to be exaggerated, an overall picture is left of a continuing disability although not to the extent originally suggested by Dr Ellis.
Liability
By the end of the hearing the plaintiff only pressed the following acts of negligence against the defendants:
(a) The instructor did not teach the plaintiff how to turn.
(b) When the plaintiff called out for help, the instructor told him to place his skis in a parallel position thereby causing him to gain speed.
(c) The second defendant allowed the class to ski in an area in which there was a mogul.
(d) The second defendant allowed the class to ski in an area in which there was a ditch.
(e) The second defendant allowed the class to ski in an area in which there was a ditch in close proximity to a mogul.
The allegation in (c) in the previous paragraph is outside the particulars of negligence including the amendments that I allowed on 10 August 2011. This allegation must fail.
As I have said above the plaintiff did not press his allegations of primary negligence against the first defendant. His case against the first defendant became one based on the non-delegable duty owed by the school to its pupil. The existence of such a duty is beyond doubt ( Commonwealth v Introvigne (1982) 150 CLR 258).
The use of the duty to attach liability to the first defendant because of the actions of the second defendant brings into play Section 5Q of the CLA. This is in the following terms:
"5Q Liability based on non-delegable duty
(1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.
(2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A."
For present purposes I do not see any distinction between the second defendant being an independent contractor or an employee of the first defendant. I also do not see any argument to suggest that the activities of the second defendant, even if negligent, fell outside the scope of the engagement of the second defendant by the first defendant. In other words this is not a case where it could be said that the second defendant had acted so far outside the scope of its engagement that vicarious liability could not arise.
In my view if the second defendant was negligent then the first defendant would be liable to the plaintiff because of its vicarious liability for the negligent acts of the second defendant. This would entitle the plaintiff to a verdict against the first defendant for the same amount assessed against the second defendant. It would then be for the first defendant's cross-claim to take up any question of apportionment as between the defendants.
The first defendant generally agreed with the above formulation. It submitted, however, that its agreement was subject to the qualification that it would not be vicariously liable for the negligence of the second defendant if that negligence was constituted by a casual act of negligence. This submission was derived from the judgment of Hodgson JA in Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at paragraph 67 where his Honour said:
"The employer may not be liable for casual acts of negligence by a person entrusted with providing the place of work or system of work or plant and equipment, or an employee of that person, if those casual acts fall outside the scope of the task so entrusted: cf Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 32 - 33. Thus, in cases where an employee of a labour hire company is sent to work for a surrogate employer, and is injured due to a failure of an employee of the surrogate employer to keep a proper lookout, the labour hire company may escape liability unless the failure can be linked with some failure of the surrogate to exercise reasonable care in the provision of a safe place or system of work, and safe plant and equipment."
I do not agree that the 'exception' referred to by Hodgson JA is applicable in the present case. This is for two reasons:
(a) The acts of negligence alleged against the first defendant do not fall outside "the scope of the task" entrusted to the second defendant.
(b) The acts of negligence ultimately alleged by the plaintiff are not, in my view, "casual" . Both the failure to properly instruct and the failure to provide a safe skiing area, if negligent acts, are acts contrary to the overall system of the provision of safe lessons in a safe area. Without intending to provide a definition of a casual act of negligence, the allegations in this case are not of acts occurring on the spur of the moment.
The liability of the second defendant must be measured within the terms of Section 5B of the CLA.
In my view the allegation that the plaintiff had not been given appropriate instructions on turning, specifically any instructions at all, cannot be made out. Although there is some confusion in the evidence I think there is enough in the testimony of the plaintiff and Mr Ragonese to establish that simple methods of turning were taught to the students. I also do not think the plaintiff has established an act of negligence arising from the words said by the instructor when the plaintiff called out for assistance. Although the placing of skis in a parallel position would logically suggest the skier would gain speed, it is to be recalled that the plaintiff was not stopping in an apparent snowplough position and therefore another means of bringing him under control was required. I do not think the evidence is sufficient to classify the instructions allegedly given by Mr Wanner to have been negligent.
If there is an act of negligence in this matter then I think it arises from the second defendant allowing a ski class to be conducted in an area in which there was a dangerous obstacle.
The first point I need to decide is whether there was an obstacle. The plaintiff, Mr Ragonese and Mr Morris all used the word "ditch" . There was no commonality of description but the use of the word I think denotes something more than an undulation. The word ditch was also used by the ski patroller in Exhibit 2D2, although he may have simply entered the description as given by the plaintiff. I note here that Mr Bordin and Mr Napier, the ski patrollers who respectively prepared Exhibits 2D2 and 2D3, were not called to give evidence. The statement given by Mr Morris, only nine days after the incident, refers to a ditch, which, as I have said above, must have been of some substance.
I am satisfied that there was a ditch of sufficient depth and width to cause the plaintiff to be thrown into the air and land on his back.
I am also satisfied that, some metres before the ditch (proceeding in a generally downhill direction) there was a mound which the plaintiff would have encountered before the ditch. Whether the mound could be technically classified as a mogul does not matter. Based on the evidence of Mr Gow I am satisfied that it was not a soft structure made from snow pushed up by skiers but was rather a feature created by the underlying terrain.
I think the starting point in examining Section 5B is an appreciation of the area in which the mound and ditch were to be found. The defendants emphasised time and time again that this area was used because it was suitable for beginners. The strength of this point is also its weakness. An area devoted to beginners should be an area that takes into account the inexperience of the skiers. It should not be an area where they are likely to encounter obstacles which their experience would not allow them to negotiate. This is all the more so when they are under the tutelage of a ski instructor providing their very first lesson.
The defendants submitted that any assessment that I would make of the extent of the ditch and the mound must take into account that the area had long been used for beginners and there was no suggestion of other problems or accidents. This submission carries a great deal of weight in certain circumstances, for example where there is an allegation of a slippery surface which has not caused any accidents despite being traversed by many people over an extended period.
The surface of a ski slope, however, is very different. Firstly, it changes every day depending on the snow conditions. Secondly, it is subject to preparation by grooming machines which, amongst other effects, tend to even out the surface. The fact that there is a pronounced mound and then a ditch on one day does not necessarily mean that it was present the day before or even the day after. This is, no doubt, the very reason why the ski fields were inspected on a daily basis. There is no evidence, however, that this occurred on the day of the plaintiff's accident other than that it was the normal course. The absence of this evidence is important and I have already stated the extent of the inference that I draw from it. I could not, of course, conclude that there had been no inspection on that day. I do, however, think it is open for me to find that a dangerous ditch and mound existed, which a proper inspection would have identified.
I note that Mr Feakes said an instructor should have skied the terrain on which his lesson is being conducted (T 66.34). Mr Wanner's statements make no mention of him having inspected the beginners' area. I do accept that Mr Feakes' view was watered down by his answer at T 98.17. As already mentioned the Area Manager and the ski patrol apparently did not see the ditch earlier in the day. If they did see it then clearly nothing was done about it.
The presence of a ditch on a beginners' slope (especially below a mound) creates a risk of injury. In my view, that risk is foreseeable and not insignificant. A person falling while skiing is always prone to serious injury.
Identification of the risk would have led a reasonable person to take precautions. The precautions available here could reasonably include the following:
(a) Placing a barrier around the ditch.
(b) Filling in the ditch with snow so as to even out its effect.
(c) Simply not conducting lessons in an area proximate to the obstacle. I appreciate that the plaintiff may have skied away from the group (to the right) but nevertheless he remained in the area devoted to beginners.
Lest there be any doubt, the negligence I have identified is the carrying out of a lesson in an area in which there was an obstacle beyond the capacity of a beginner to deal with. The negligence includes both the failure to identify the obstacle, or, if it was identified, to not take action to negate the possible danger created by the obstacle.
The next question is whether the negligence of the second defendant caused the injury as required by section 5D of the CLA. It was submitted that had there been a marker on the obstacle it would have made no difference to the plaintiff as he was out of control. That may well be so but had the precautions I have suggested above been taken then the accident would not have occurred. The plaintiff may have suffered injury going into material used to fence off the obstacle but this is unlikely to have resulted in the severe injury that he suffered as a result of going into the ditch.
More particularly, had he not been skiing in the area he would not have been in the position to encounter the ditch. I am therefore satisfied that but for the presence of the ditch, which was or ought to have been known to the second defendant, the plaintiff's injury would not have occurred. I am further satisfied that the plaintiff encountering the ditch was caused by the failure of the second defendant to identify the ditch and to take precautions to prevent the plaintiff from being in a position to come across the ditch in the course of his lesson.
The defendants submitted that notwithstanding a finding of the nature I have just made they should nevertheless escape liability because of the applicability of Section 5L of the CLA. This section is as follows:
"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."
The plaintiff accepted that skiing is a recreational activity. He did not concede it was dangerous. A "dangerous recreational activity" is defined in Section 5K as "a recreational activity that involves a significant risk of physical harm" . It is common knowledge that injuries can easily occur when skiing. This is, as said by counsel for the second defendant, a natural result of being positioned on waxed skis themselves on a slippery surface. When a gradient and undulations are introduced into the surface a significant risk of physical harm becomes clear. I am satisfied that the plaintiff was involved in a dangerous recreational activity.
The next, and more contentious issue, is whether the plaintiff's injury was "a result of the materialisation of an obvious risk ..." .
Section 5K says that obvious risk has "the same meaning as it has in Division 4" .
Section 5F (in Division 4) has the following definition of obvious risk:
"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 defendants submitted that the risk was obvious because it is a matter of common knowledge that ski fields will not be smooth and will contain undulations. As a general statement I agree with the submission. There are two features in the present case, however, which render the submission inapplicable:
(a) A ditch is more than an undulation.
(b) More importantly, the ditch was located in a beginners' slope. In my view a reasonable person in the position of the plaintiff would not regard the presence of the ditch in an area dedicated to beginners to be obvious. To the contrary, in my view, a ditch in such an area is something that a reasonable person would not expect to encounter.
If the presence of the ditch is not obvious then the risk of going into a ditch and suffering harm must in turn also not be obvious.
In summary my finding is that if the plaintiff had lost control and fallen over, or fallen due to an undulation in the surface, or even simply fallen over, and been injured, that would have been the materialisation of an obvious risk. But skiing into a ditch on a beginners' slope is quite different. This is the materialisation of a risk that is far from obvious.
I am therefore of the view that Section 5L does not exempt the defendants from liability.
I think I should also deal with a separate submission made by the first defendant. It was submitted that the plaintiff's injury was the product of " an unfortunate concurrence of circumstances." These words were taken from the judgment of Ipp JA in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 at paragraph 61. In that case a child was struck by a bat in the midst of a children's game.
The whole sentence from which the above words are drawn is as follows:
"Thus where an injury is caused by an unfortunate concurrence of circumstances that reasonable precautions could not have prevented, no breach of duty will have occurred."
In my view this case is quite different. Had the ditch been identified, as it should have been during the early morning inspections then reasonable precautions could have been taken to fill it in or isolate it. Had the precautions been taken the injury would have been prevented.
The second defendant ultimately did not rely on Section 5M. Accordingly I find the second defendant liable to the plaintiff for the reasons set out above and the first defendant liable because of its non-delegable duty to the plaintiff.
Although pleaded by both defendants no submissions were made advocating contributory negligence on the plaintiff's part.
The cross-claim
As stated above, the first defendant has a cross-claim against the second defendant. Counsel for the first defendant submitted that it should receive a complete indemnity because, assuming the findings that I have made, the negligence was entirely the fault of the second defendant. The second defendant did not make any submissions on apportionment. I accept that the negligence that I have found is one wholly attributed to the second defendant.
The plaintiff made it clear that he did not rely on any act of primary negligence against the first defendant. This case is not analogous to 'labour hire' cases where the court considers an employer's contribution derived from its own negligence. In the present circumstance I think that the first defendant should be entitled to a full indemnity (or a 100% contribution) from the second defendant.
Damages
Non-economic loss is subject to Section 16 of the CLA. It is necessary to make a finding of the severity of non-economic loss as a percentage of a most extreme case. The plaintiff's submission is 38%. The defendants said that the percentage should be in the range of 28% to 32%. I think the parties' respective assessment reflects the appropriate range in which non-economic loss should be assessed.
Despite their realistic suggestion of the percentage for non-economic loss the defendants maintained that there remains little wrong with the plaintiff. Although the plaintiff has made a very good recovery I do not think fractures to a spine can be described as a minor occurrence. The plaintiff says he still has pain especially with certain activities. This situation is likely to be permanent.
On the other hand the plaintiff has had little treatment, takes relatively low grade painkillers (but does so every day) and is able to cope with his present employment without difficulty.
Although most of the plaintiff's mother's evidence concerned care she also gave largely unchallenged testimony about her observations of her son and the changes that she has noticed in him since his injury.
Mrs Harris was a patently honest person. It was this honesty that ultimately dealt a fatal blow to the plaintiff's claim for past domestic assistance.
Mrs Harris said the plaintiff expressed concerns about his future working ability and was considering returning to school and progressing towards a career as an accountant. She noticed he was quieter than he had been and complained of a lack of sleep caused by his back pain.
I think non-economic loss should be assessed at 33% of a most extreme case, which equates to $171,500. In reaching this assessment I have taken into account the shock and upset that a 16 year old boy would have endured following a spinal injury and the possible consequences that might have flowed. I have not included any allowance for the injury the plaintiff alleges to his neck.
In relation to economic loss I can readily accept that a person who suffers pain in his back will have difficulty with jobs, like that of a plumber, involving twisting, bending and lifting. As already seen, Dr Matheson recommends against this profession. The plaintiff's submission is that he has an incapacity that has produced a very large economic loss, to the extent of $87,566.61 for the past and $445,635.82 for the future. In addition the plaintiff claims lost superannuation benefits.
The basis for the plaintiff's calculations is that, but for the accident he would have completed Years 11 and 12 at school and then started to earn average weekly earnings. The plaintiff tendered the Plumbers' Award (Exhibit M) but made no use of it in his submissions.
The plaintiff's figures essentially allow for earnings of about $1,000 per week reduced by actual earnings of about $500 per week.
The defendants say that he is capable of full time work and, if he is not, that he has failed to mitigate his loss. The plaintiff has done very little to improve his position, either by obtaining further education or attempting work besides his current type of employment. They also submit that if he becomes an accountant his earnings may well exceed those of a plumber.
The defendants submitted that taking into account the failure to mitigate, the possibility of higher earnings in the future and the plaintiff's retained capacity to do full-time work (although not as a plumber) the appropriate means of compensating him is by way of a "cushion" in the order of $50,000. This would include both past and future economic loss. The difficulty I have with the defendants' suggestion is that it takes no account of the extent of the plaintiff's injury or the fact that it is permanent. The defendants say, on the one hand, that he was an unambitious person, but then suggest that he might proceed to stellar earnings in the future. The plaintiff certainly did not impress me as likely to be a successful accountant. I do not mean this critically but rather as a recognition that he presented as a person more likely to find employment in a non-sedentary capacity. This type of employment is more vulnerable to the permanent condition of his back.
The difficulty I have with the plaintiff's assessment is that it assumes an ongoing loss of about $500 per week through to retirement regardless of the possibility that the plaintiff may requalify in some capacity (not necessarily an accountant) and is also capable of working significantly more hours than he does at present and probably even on a full-time capacity in a suitable job.
I agree with the submissions of both parties that economic loss should not commence before January 2009 because of the plaintiff's stated intention to have completed Years 11 and 12 but for his injury.
In relation to the past, I think I must also take into account that the plaintiff would not have commenced on average weekly earnings, or average plumber's earnings, in January 2009. He would no doubt have needed to complete an apprenticeship and then gradually work his way up to an average wage. I think an allowance of $200 per week for the past, commencing on 1 January 2009, takes into account the factors that I have mentioned, including his actual earnings. The period is 148 weeks so that the loss is $29,600.
The lost superannuation benefit, at 11%, is $3,256.
In relation to the future, for purposes of Section 13 of the CLA, I am satisfied that but for the accident the plaintiff would have worked as a plumber, or in some similar occupation for the balance of his working life and that he would have been subject to the normal vicissitudes of 15%.
As stated above, I am also satisfied that the plaintiff is capable of more than 20 hours per week as a bar tender and also in many other occupations. I do think he has an incapacity but I do not think I should adopt the approach that I used for past economic loss. The plaintiff is likely to utilise his full capacity in due course and perhaps also better his position by entry into a more remunerative trade. Despite his school record I did think the plaintiff had ambitions to work and, like his parents, is likely to become full time worker. I do not think this is a case where a buffer is appropriate (unlike Penrith City Council v Parks [2004] NSWCA 201 ) .
Taking into account that there are various factors that both favour and mitigate the extent of his future economic loss I think an award of $100 per week to age 67 is appropriate. Applying the 5% tables and reducing the result by 15%, future economic loss is $81,268.50. The lost superannuation benefit is $8,939.53.
Past out of pocket expenses have been agreed at $10,204.91. The plaintiff's claim for future expenses is $41,914.30. The claim is based on Dr Ellis' recommendation of $2,000 a year plus Panadol at $10 per week.
The defendants said there should be no allowance for future medical expenses. They pointed out that the plaintiff had not had any treatment since 2006, that Dr Ellis' views should not be accepted because they were based on an incorrect history and the claim for Panadol had not been particularised. In addition, there was no evidence of the cost of Panadol.
Unfortunately Dr Ellis was not specifically cross-examined on his estimate. According to his report the $2,000 is for "continuing medical supervision and conservative treatment for pain relief, intermittent physiotherapy" which "may well be required" . Despite the lack of cross-examination I think Dr Ellis' estimate is somewhat expansive and not based on the actual costs of the components that are set out. Once again the Amended Statement of Particulars does not assist.
It is true that the plaintiff has not had any treatment for a long period but that is not to say that he will not require some treatment in the future. He has a permanently impaired back that is likely to give him increased periods of pain from time to time. I think he is entitled to some allowance for future medical expenses and that this allowance should take into account the Panadol that he frequently consumes. I think an overall allowance of $5,000 meets his probable needs.
A summary of the plaintiff's damages is as follows:
| Non-economic loss | $171,500.00 |
| Past economic loss | $29,600.00 |
| Past lost superannuation benefits | $3,256.00 |
| Future economic loss | $81,268.50 |
| Future lost superannuation benefits | $8,939.53 |
| Past out of pocket expenses | $10,204.91 |
| Future medical expenses | $5,000.00 |
| Total | $309,768.94 |
I make the following orders:
(a) Verdict and judgment for the plaintiff against the first and second defendants in the sum of $309,768.94.
(b) On the cross-claim, the second defendant is to indemnify the first defendant in respect of the whole of its liability (including costs) to the plaintiff.
(c) The second defendant is to pay the first defendant's costs of the cross-claim.
I will make orders on the plaintiff's costs following submissions by the parties. The matter was originally set down for four days. Estimates are often not reliable through no fault of the persons giving the estimate. Cases will often change as evidence emerges. In this case, however, both in regard to liability and quantum, the plaintiff's allegations changed substantially over the course of the hearing. The real issues only became apparent on the final day of hearing.
In my view, the defendants should not have to bear the burden of the manner in which the case was prepared and conducted on behalf of the plaintiff. My initial view is that the parties should bear their own costs of four days of hearing. I will hear any submissions arising from this observation and from offers of compromise.
(The following additional orders were made on 11 November 2011:
(a) Subject to the next order the defendants are to pay the plaintiff's costs of the proceedings, those costs to be assessed on an indemnity basis from 21 October 2011.
(b) Each party is to pay its own costs in respect of the following hearing days: 9, 10, 11 and 12 August 2011.
(c) The second defendant is to pay the first defendant's costs of the proceedings from the date of the joinder of the second defendant on 14 April 2010, those costs to be assessed on an indemnity basis from 26 July 2011.
(d) The judgment is stayed on condition that the second defendant file a Notice of Appeal within 28 days of today. )
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Decision last updated: 11 November 2011
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