Jackson v Lithgow City Council

[2008] NSWCA 312

New South Wales

Court of Appeal

CITATION:	Craig William JACKSON v LITHGOW CITY COUNCIL [2008] NSWCA 312
HEARING DATE(S):	15 August 2008
JUDGMENT DATE:	24 November 2008
JUDGMENT OF:	Allsop P at 1; Basten JA at 109; Grove J at 110
DECISION:	1. Appeal allowed. 2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered: (a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at 13 June 2007; (b) interest thereon be payable and calculated by reference to the Civil Procedure Act 2005, s 101; and (c) the defendant pay the plaintiff's costs. 3. The respondent pay the appellant's costs of the appeal.
CATCHWORDS:	NEGLIGENCE – causation – evidence - EVIDENCE – evidence in negligence action – inference of fact from occurrence of damage and all the surrounding circumstances – note of ambulance officers –opinion evidence under Evidence Act 1995 (NSW), s 78 - MEASURE OF DAMAGES (TORT) – damages for personal injuries – assessment – quantum recoverable – future economic loss – non-economic loss – loss of earnings and earning capacity – future care – past care - INTOXICATION – relationship between Civil Liability Act 2002 (NSW), s 50(2) and (3) – contributory negligence.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Health Insurance Act 1973 (Cth) Civil Procedure Act 2005 (NSW) s 101
CASES CITED:	Bradshaw v McEwans Pty Limited (unreported, HCA, 27 April 1951) Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 Diamond v Simpson (No 1) [2003] NSWCA 67 Flounders v Millar [2007] NSWCA 238 Guest v The Nominal Defendant [2006] NSWCA 77 Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 Jones v Dunkel [1959] HCA 8; 101 CLR 298 King v Goussetis (1986) 5 NSWLR 89 Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 Manser v Spry [1994] HCA 50; 181 CLR 428 National Insurance Co of NZ v Espagne [1961] HCA 15; 105 CLR 569 Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49 Redding v Lea [1983] HCA 16; 151 CLR 117 Rhesa Shipping Co SA v Edmunds The 'Popi M') [1983] 2 Lloyd's Rep 235 Rhesa Shipping Co SA v Edmunds (The 'Popi M') [1985] 1 WLR 948 Tarabay v Leite [2008] NSWCA 259 Wade v Burns [1966] HCA 35; 115 CLR 537
PARTIES:	Craig William JACKSON LITHGOW CITY COUNCIL
FILE NUMBER(S):	CA 40614/2007
COUNSEL:	Dr A Morrison SC, D Elliott S G Campbell SC, S E McCarthy
SOLICITORS:	Gerard Malouf & Partners, North Parramatta DLA Phillips Fox
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1111/2005
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	13 June 2007

40614/07

ALLSOP P
BASTEN JA
GROVE J

24 November 2008

Craig William JACKSON v LITHGOW CITY COUNCIL

Headnote

The appellant was found lying unconscious in a concrete drain in a park in Lithgow shortly before 7 am on 18 July 2002 with serious head injuries, probable fracture to his thoracic vertebra, fractured wrist, and cuts and abrasions. He had taken his dogs for a walk at about 3:30 that morning whilst intoxicated. He had no memory of the events in question or of events from the middle of the day before. No one saw the accident. There was no direct evidence as to the position of the appellant’s body in the drain when he was found. The appellant sued the local council having care and management of the park, alleging that he had fallen over the low, unfenced retaining wall of the drain and down approximately 1.5 metres on to the concrete drain.

The primary judge (Ainslie-Wallace DCJ) found in favour of the respondent council: the respondent owed someone in the position of the appellant, walking in the park at night, a duty to exercise reasonable care for his or her safety and that such duty was breached by the respondent failing to take steps to avoid the risk of foreseeable injury to someone falling over the wall at night. However, the primary judge concluded that the appellant had not proved how he fell and came to be injured, the evidence not permitting a conclusion that the appellant had stumbled over the low wall and fallen down on to the concrete, or that the appellant had approached the drain when it was dark.

Held, allowing the appeal:

Allsop P, with whom Basten JA and Grove J agreed

Causation

1. An inference could be drawn from the evidence that the appellant suffered a significant fall while walking down the hill in an easterly direction in the dark: [48], [49], [50] [51], [53], [56].

2. The task of the court in drawing an inference as to the cause of an injury is to assess whether an inference is available and more probable than other possibilities.

Bradshaw v McEwans Pty Limited (unreported, High Court of Australia, 27 April 1951), Rhesa Shipping Co SA v Edmunds (The ‘Popi M’) [1985] 1 WLR 948, applied.
Holloway v McFeeters [1956] HCA 25; 94 CLR 470, Flounders v Millar [2007] NSWCA 238, Guest v The Nominal Dependant [2006] NSWCA 77 cited.
Jones v Dunkel [1959] HCA 8; 101 CLR 298, Rhesa Shipping Co SA v Edmunds (The ‘Popi M’) [1983] 2 Lloyd’s Rep 235 referred to.


3. The “retrieval record” taken by the ambulance officers was a statement of the opinion of the ambulance officers upon their observation of the scene and could be taken as their opinion as to what happened and some evidence of the position of the body consistent with a view to effect that the appellant fell from the wall: [47].

Non-economic loss

4. The conclusion of the primary judge as to the assessment of damages for non-economic loss as 35% of the most extreme case was open and properly made: [71].

Economic Loss

5. The sum of $50,000 for future economic loss was inadequate; a global sum adequate to cushion the effects of the accident on an otherwise restricted skill base was $100,000: [79]

Care and Assistance

6. There was no error in the primary judge’s assessment of past care and future care: [85]

Future out-of-pocket expenses

7. An award of $15,000 for future medical out-of-pocket expenses was appropriate; it could not be assumed that the appellant would have the benefit of Medicare rebates for future visits to doctors: [94], [95].

8. The principle as to the receipt of benefits from other sources is one of compensation; the plaintiff should not receive a windfall. If the plaintiff is legally obliged to repay the collateral source out of the damages, full damages are paid. Collateral benefits should be ignored if they have an “additional characteristic” that they were intended to be retained by the plaintiff notwithstanding a claim for damages: [90].

National Insurance Co of NZ v Espagne [1961] HCA 15; 105 CLR 569, Redding v Lee [1983] HCA 16; 151 CLR 117, Manser v Spry [1994] HCA 50; 181 CLR 428, Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1, Diamond v Simpson (No 1) [2003] NSWCA 67, Luntz H Assessment of Damages for Personal Injury and Death (4th ed).


Fund Management

9. The need for fund management must arise from intellectual impairment caused by the defendant’s negligence. There was no basis to conclude, from the medical evidence, that any impairment from the accident caused the need for fund management: [98].

Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49, applied.


Contributory Negligence

10. On the evidence, the presumption in s 50(3) of the Civil Liability Act 2002 (NSW) was engaged. It could not be concluded that the appellant’s intoxication did not contribute to the fall over the wall: [104].

11. The relationship between sub-s 50(2) and (3) of the Civil Liability Act 2002 (NSW) can be seen to contrast or juxtapose the likelihood of the injury etc occurring to an non-intoxicated person and proving that intoxication played no part in the cause of the injury etc: [103].

12. A greater contribution than the mandatory 25% reduction in damages for contributory negligence pursuant to s 50(4) was not warranted.

40614/07

ALLSOP P
BASTEN JA
GROVE J

24 November 2008

Craig William JACKSON v LITHGOW CITY COUNCIL

Judgment

1 ALLSOP P: Shortly before 7 am on 18 July 2002, the appellant (the plaintiff below) was found unconscious lying in a concrete drain in a park in Lithgow. He had suffered serious head injuries, a probable fracture of thoracic vertebra 11, a fractured wrist and cuts and abrasions.

2 The appellant sued the respondent, which was the local council having the care and management of the park, alleging that he had fallen over a low unfenced retaining wall and down approximately 1.5 metres on to the concrete drain.

3 The primary judge (Ainslie-Wallace DCJ), in a clear and careful judgment, ordered that there be verdict and judgment for the defendant, with costs.

The findings of lack of proof of causation

4 This result was based on two conclusions reached by her Honour: first, that the evidence did not permit a conclusion that the appellant had stumbled over the low wall and fallen down on to the concrete; and, secondly, that the evidence did not permit a conclusion that the appellant approached the drain when it was dark, rather than when it was somewhat lighter.

5 If the judge had been able to conclude that the appellant had fallen over the low wall on to the concrete below, that would, in all likelihood, have had an effect on the finding as to the prevailing darkness or light. I will return to this in due course.

6 These conclusions of the primary judge to the effect that the appellant had not proved how he fell and came to be injured were determinative on liability. The primary judge found that the respondent owed someone in the position of the appellant, walking in the park at night, a duty to exercise reasonable care for his or her safety and that such duty was breached by the respondent not taking steps to avoid the risk of foreseeable injury to someone falling over the wall at night. No cross-appeal or notice of contention sought to impugn these conclusions as to duty and hypothetical breach.

The focus of the appeal on liability

7 The appeal on liability focused, necessarily, upon the correctness of the primary judge’s conclusion that the evidence as a whole did not permit an inference to be drawn that the accident happened by the appellant walking down the slope of the park towards the wall, tripping or stumbling and falling 1.5 metres on to the concrete drain. To assess whether the primary judge erred in that conclusion it is necessary for this Court to make its own evaluation of the evidence and to reach its own conclusion on rehearing.

8 The appellant had no memory of the events in question or of events from about the middle of the day before. No one saw the accident. It was therefore necessary to reconstruct events from the objective circumstantial evidence. In this task, the parties on appeal and the Court were assisted by the clear expression by the primary judge of her reasons.

The relevant principles of proof

9 Before dealing with the facts it is helpful to remind oneself of the terms of the task at hand. In Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480-481, Williams, Webb and Taylor JJ cited and applied passages from the joint judgment of Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Limited (unreported, High Court of Australia, 27 April 1951), which were as follows:

… you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture … . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than on the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.

10 In Jones v Dunkel [1959] HCA 8; 101 CLR 298, the High Court discussed Holloway v McFeeters in an appeal concerning a truck accident on a hill. The proof of the accident was circumstantial. The cause had been heard before a jury. The High Court divided on the question whether the evidence permitted the jury to conclude that the defendant driver had been negligent and caused the accident. (Dixon CJ and Taylor J thought not; Kitto, Menzies and Windeyer JJ thought it could.) Dixon CJ, at 101 CLR 305, having referred to Holloway v McFeeters and Bradshaw v McEwans said the following, referring to the passage from Bradshaw v McEwans:

But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

Though Dixon CJ was in dissent, this passage can be taken to reflect the essential content of Holloway v McFeeters , and of the views of the justices in Jones v Dunkel . See also Flounders v Millar [2007] NSWCA 238 at [4]-[35] (Ipp JA, with whom Handley AJA agreed) and in particular [32]-[35].

11 On the basis of these authorities, Mr Morrison SC, leading Mr Elliott on behalf of the appellant, submitted that the appellant did not have to prove on the balance of probabilities what occurred, rather he said, “all the appellant has to do is to show that the appellant’s scenario was in the smallest degree more likely than either of the other eventualities.”

12 With respect, that is to misapprehend these authorities. It is to say no more than the “appellant’s scenario” is the most likely guess. The inference must be available and be considered to be more probable than other possibilities. To put the matter as Mr Morrison did is to commit an error of the kind to be found in the reasoning of the trial judge in Rhesa Shipping Co SA v Edmunds (The ‘Popi M’) [1983] 2 Lloyd’s Rep 235 where the cause of the sinking of the ship was found by the trial judge to have been impact with an unidentified submarine, an event thought by the judge to be extremely improbable. He came to this conclusion because the evidence of each of the other possible causes was in doubt (wear and tear), unlikely given the calm and still conditions (other perils of the sea) and not alleged (scuttling). In the House of Lords (Rhesa Shipping Co SA v Edmunds(The ‘Popi M’) [1985] 1 WLR 948) Lord Brandon of Oakbrook (with whom Lord Fraser of Tullybelton, Lord Diplock, Lord Roskill and Lord Templeman agreed) said at 951 and 955:

In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.

…

The passages which I have quoted from [the trial judge’s] judgment amply support the observations about his approach to the case which I made earlier. These observations were to the effect that he regarded himself as compelled to make a choice between the shipowners’ submarine theory on the one hand and underwriters’ wear and tear theory on the other, and he failed to keep in mind that a third alternative, that the shipowners had failed to discharge the burden of proof which lay on them, was open to him.
…
My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr Sherlock Holmes, as saying to the latter’s friend, Dr Watson: “How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that [the trial judge] decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

13 See also the discussion in Guest v The Nominal Defendant [2006] NSWCA 77 at [108]-[109].

The facts relevant to causation

14 With these principles in mind, it is necessary to look at the facts.

15 At some time on the day before the accident (17 July 2002) the appellant went to the Lithgow Workman’s Club with the brother of his then partner, Ms Spurling. They were joined at the club by Ms Spurling’s father. The events of the afternoon and evening (including how long they were at the club, when the appellant returned home and how much the appellant had to drink) were not clear, for reasons including the passage of time. The primary judge worked on the basis of the likely accuracy of Ms Spurling’s statement to the police on 18 July 2002. That statement was to the effect that the appellant went to the club at 7.30 pm and returned home (the appellant and Ms Spurling lived together at the time) at 1.30 am, accompanied by her brother. She said they became noisy. She asked them to be quiet or leave. Ms Spurling’s brother left, but the appellant remained and listened to music. At about 3.30 am Ms Spurling asked him to be quiet or go for a walk.

16 Some emphasis was placed by Mr Campbell SC (with whom Mr McCarthy appeared for the respondent) on the “stormy” relationship between the appellant and Ms Spurling. Certainly their relationship had broken down by the time of the hearing and there had been an apprehended violence order taken out by her against him. Nevertheless, the evidence did not disclose, and there was no finding, that the appellant was being asked at about 3.30 am other than to go for a walk. There no doubt may have been some curtness in expression by Ms Spurling, but she was expecting the appellant back shortly. At 4 am Ms Spurling looked for the appellant and could not find him, or their two dogs, which he had taken with their leads to go for a walk.

17 The importance of the character of the parting and the purpose of the appellant in leaving are related to when the accident is more likely to have happened. The respondent supported the primary judge’s conclusion that there was no inference available that the accident happened in the dark, that is substantially before 6.57 am, when he was found. One consideration in this regard is whether as a matter of common sense the appellant would have been walking for up to 3 hours with his dogs in the dead of night in mid-winter in Lithgow, or whether it was more probable that he intended a briefer walk and after a period of time to get from home to the park within say an hour, he suffered the accident.

18 The primary judge made the following conclusion about intoxication at [20] of her reasons:

The evidence establishes that before he left the house, the plaintiff had 6 or 7 beers with Peter and Travis Spurling and then more beers at his house. I am satisfied that when the plaintiff left the house he was at least moderately intoxicated.

19 After referring to the meaning of intoxication in the Civil Liability Act 2002 (NSW), s 49, her Honour said the following at [22] and [23]:

[22] Section 50 provides that where it is established that the person injured was, at the time of injury, intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired then no damages are to be awarded for the injury unless the court is satisfied that the injury is likely to have occurred had the person not been intoxicated.

[23] I find that the plaintiff was affected by alcohol in the sense his capacity to take care of his own safety was impaired. The defendant having satisfied that evidentiary onus, it is for the plaintiff to establish that the accident would have occurred to a person not intoxicated.

20 It will be necessary, in due course, to return to the question of intoxication and the operation of the Civil Liability Act 2002, s 50.

21 The primary judge then, at [24]-[37] of her reasons, discussed the drain and its immediate physical environment. The park sloped downhill from the Great Western Highway to Amiens Street in a roughly east-west direction. The appellant’s home was to the north of the park, on the western side of the highway, which ran in a north to south direction. The appellant argued, and it can be accepted, that a natural route to walk would be from the appellant’s home south along the highway crossing the road to the park and then down the slope into the park.

22 The wall and the drain were clearly shown in photographs taken by the police when they attended. These were available to the primary judge (who did not have a view) and this Court. Detailed explanation of the physical surroundings is found in the judge’s reasons at [24]-[37] which I do not propose to repeat and which are well-understood by reference to the photographs. It is only necessary to say that if one were coming down the hill towards the drain, the low wall concealed the significant fall behind it. The wall and the drain would be seen from other angles, but walking towards it from the west down the hill, the 1.5 metre drop was concealed.

23 The drain had sloping sides to the north and south, and a shear 1.5 metre fall on the west.

24 The primary judge dealt with the lighting at [38]-[44] of her reasons. In this context, the primary judge made the following findings at [43] and [44] of her reasons:

[43] I am satisfied that the wall, by reason of it being low to the ground, that its edge was partially obscured by plants growing on the ground against it, that it was within the contour of the slope and the lighting in the park as observed by Mr Burn, created a hazard for people walking across the park at night. The wall would not readily be seen by a sober person taking care for his or her own safety. A drop of about 1.5 metres from the wall would be totally unexpected to someone coming on it at night.
[44] I find that that accident was likely to have happened even had the plaintiff not been intoxicated.

25 Given the primary judge’s ultimate inability to be satisfied how the accident happened or even in what light, the finding in [44] is curious. I take it to be, in the context in which it appears, a finding that if the appellant did fall over the wall in the dark, then it is likely that the accident would have happened had the appellant not been intoxicated. It will be necessary to return to this finding in the context of the Civil Liability Act, s 50.

26 The primary judge then turned (at [48]-[51]) of her reasons to how the appellant came to be in the park. He had not been to the park before. There was no direct evidence of the route that he took.

27 In dealing with whether the risk was obvious (at [64]-[79] of her reasons) the primary judge found that the drain and the presence of the wall were apparent during daylight; but not readily apparent during the night. Her Honour found (at [65]) that a sober person walking through the park at night and taking reasonable care for his or her own safety would not have seen the wall or the drop, if approached from the high side.

28 At [67]-[79] of her reasons, the primary judge discussed the various possibilities as to how the appellant came to be hurt. The appellant’s mother had voiced her suspicions that he had been assaulted either at Ms Spurling’s or the appellant’s father’s instigation. (The former suspicion was based on her knowledge of the somewhat stormy nature of the relationship between the appellant and Ms Spurling. The latter was based on grounds which are unnecessary to identify, but which might rationally be seen to found the speculation.)

29 At [68]-[70] of her reasons, the primary judge discussed the evidence of an expert retained by the respondent, a Mr Bailey. For reasons that her Honour gave, Mr Bailey’s report was of little assistance in determining the issue of causation. No attempt was made on appeal to press Mr Bailey’s report as helpful in the assessment of the facts on appeal. Having examined it, I agree that the report is of little assistance.

30 Likewise, the appellant tendered reports of a Mr Burns. A review of this report leads me to conclude that it does not assist in the resolution of the appeal. No real reliance was placed on the report in argument on appeal.

31 A significant difficulty confronted by her Honour was that there was no direct evidence as to the position of the appellant’s body in the drain when he was found. The photographs taken by the police were taken after the appellant was taken from the scene. The evidence disclosed that blood and urine was at a position on the drain 2.69 metres from the base of the wall and roughly in the middle of the U shaped drain.

32 The respondent below and on appeal said that it was entirely speculative to draw any conclusion as to whether the appellant had tripped over the wall and fallen down the 1.5 metres (as the appellant alleged in his case), fallen off the wall while standing on the wall, fallen into the drain from the side having tripped or stumbled, or had been assaulted.

33 The respondent also submitted below and on appeal that it was speculation as to whether the accident occurred before or after daylight.

34 The ambulance officers who attended made a record which was in evidence. Neither side called the ambulance officers. They were available to both sides to be called. Of course, there was no obligation on either side to call the ambulance officers. In particular, the defendant was not under any obligation to call them if the plaintiff had not made good his case. I will come in a moment to the documentary record made by the ambulance officers. It is crucial in the resolution of this appeal.

35 The appellant pointed to a number of factors which he said made the inference that he fell over the wall while walking down the hill more likely than any other explanation. Walking down the hill, the fall was obscured at night, whereas approaching the drain from its sides meant that it was visible. The direction from his home and the lie of the land and contour of the hill would naturally lead to him come down the hill to this point, it being more likely that he would have walked downhill than across the hill. The place of the blood and urine was consistent with falling off the wall and moving forward rather than simply falling vertically off the wall. The injuries to the appellant were serious and were consistent with a significant fall from a height as opposed to simply stumbling on a gentle slope and falling forward. I find these considerations of assistance. They do not, however, lead to the inference that he fell in the way he alleged, but they are at least indicative of, and certainly consistent with, that possibility.

36 The appellant also relied on a number of facts which I do not think can be taken to be of any real assistance. He said that the pool of fluids, as far as it could be ascertained, was running lengthwise in a south west to north east axis consistent with a roughly lengthwise fall from the west wall. I think the running of the liquid would be more determined by the shape of the drain floor. It was also said that the dog leads were bundled and lying to the south west of the pool of fluids as though they had fell from his left hand. I think this is speculative. He said that the ambulance officer’s discarded gloves in the photographs were east of the pool and given that he had a suspected head and neck injury and blood on his face, a bleeding nose and was incontinent, it is likely they were used around his head, suggesting his orientation was lengthwise, consistent with a fall from the western wall. I think this is again speculation.

37 As was discussed in argument with Mr Campbell SC, the most important piece of information which could throw light upon what had happened was the position of the body. Whilst the ambulance officers were not called, they filled out a document called a “retrieval record”. From the contents of the document, it can be inferred that the document was filled out substantially contemporaneously. On that document adjacent to a heading “patient history” the following appeared:

Found by bystanders - parkland
Fall from 1.5 metres onto concrete.
No other Hx

(The abbreviation “Hx” meant history.)

38 There was also some information recorded about the appellant and his physical condition to which I will return.

39 This document was available to both parties prior to the litigation. The records of the ambulance service were admitted without objection (see transcript, 30 March 2007, page 306). Immediately after their admission into evidence, senior counsel for the respondent raised the question of the use of the document. At transcript pages 307-309 a discussion occurred between Mr Campbell, Mr Elliott and the primary judge. Mr Campbell commenced by asking for a limitation on the use of the document under the Evidence Act 1995 (NSW), s 136 such that it was not evidence “of the fact”. Mr Campbell was clear that he was not asking the primary judge to exclude the evidence, but to limit the use of it. Mr Campbell described the entry to which I have referred as “the musing or a rumination on the part of the ambulance officer”. Her Honour replied, “or the bystander”. It then appears that her Honour was prepared to treat the evidence as “evidence of what was said as opposed to evidence of the truth of it in the sense that the Evidence Act talks about”. Mr Elliott then put submissions that there was no unfair prejudice as a precondition of the operation of s 136, nor was the evidence misleading or confusing. The judge then said that she did not understand Mr Campbell was asking her to deal with the matter under s 136, but to limit the use of hearsay material. Her Honour said:

The fact that somebody may have said to the ambo, “he’s fallen 1.5 metres onto concrete” is not going to advance my determination because you will say that to me too in submissions but you’ll base it on the evidence and this is just based on …

40 Mr Elliott then said:

Indeed, your Honour. It’s just that an ambulance officer I will ask your Honour to draw an inference that the fall occurred as we say and not as was put by the – by Mr Bailey in his hypothesis because of the orientation of the body. I can’t prove orientation of the body by a photograph taken at the time or recollections of anybody who saw it at the time but what I can say is that an ambulance officer who had no duty to do anything other than record the most accurate history he possibly could with the benefit of his training and experience formed the view that that was the most likely history and was sufficiently convinced of that as to write on it a report where this would be a critical matter and that your Honour could therefore draw comfort that the orientation of the body was likely to be one that would suggest to anybody who happened on the scene that it occurred because the plaintiff was walking in an easterly direction off the western wall.

41 The primary judge then said:

I still propose to – I’ll accede to Mr Campbell’s – I’m not, Mr Elliott – that of all of the things is not going to be the most persuasive.

42 There the matter ended. With respect to her Honour, this was not a clear ruling. The notice of appeal did not, however, specifically complain about this ruling; though there was full debate on appeal about the ruling and about what would be taken from the document.

43 Reading these three pages of transcript and what her Honour understood Mr Campbell to be asking her to do, I understand the ruling to limit the use of any hearsay material in this note (that is any recounting of what was said by others) such that it is not to be evidence of the truth.

44 This Court is in as good a position as her Honour was to conclude what was hearsay material in the sense that her Honour was using the expression (that is, something said to the ambulance officers and recorded by them as something that was said to them).

45 Her Honour did not take this record into account in her analysis of the facts. From that it can be concluded that her Honour took the view that the document was a record of what had been said to the ambulance officers. I do not read the relevant entry wholly in that fashion. The first line of the entry can be taken to be what was said to the ambulance officers. The second line, however, can be taken, on its face, to be the conclusion drawn by the ambulance officers as to what had happened, they having the inert unconscious body in front of them and they having the advantage of being able to assess the position of the body and its relationship with the wall and the drain. Having the advantage of those matters what is the relevance, utility and admissibility of the record of their opinion? There was insufficient material to permit the opinion to be admitted as one of a qualified expert.

46 Under the Evidence Act, s 76(1) evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. One exception to this rule is contained in s 78 which is in the following terms:

The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

47 Given the terms of s 78 and the fact that this document was quite plainly a business record within the terms of s 69, it seems to me that if the line is read as a statement of the opinion of the ambulance officers upon their observation of the scene it can be taken as their opinion as to what happened. If this is so, this is some evidence that the appellant fell from the wall. It can also be taken as some evidence of a position of the body consistent with a view to that effect.

48 Although the ambulance officers were not called, the record is some evidence to place with the rest of the material to assess what happened. The evidence relied upon by the appellant and to which I have already referred is all consistent with the appellant coming down the hill from the west, from the highway. If he did so, and if he did stumble over the wall, the injuries he suffered would be consistent with that significant fall and with a broken wrist in trying to break his fall. The injuries appear somewhat more likely to have occurred from a serious fall than from stumbling from the side of the drain.

49 Without the note of the ambulance officer read in the way that I read it, it would be difficult to draw an inference as to what happened. With the note of the ambulance officers, the balance of the evidence being consistent with such a fall, I am prepared to draw the inference that the appellant, walking in an easterly direction (from the west) down the hill, fell over the wall and down on to the concrete striking his wrist and head making him unconscious.

50 There is the question of darkness or light. The primary judge’s reasons and the argument dealt with this as a separate issue from the fall. I do not think it is. If the fall occurred as I have inferred, that is more likely to have occurred in the darkness because of the obscurity of the wall and the lack of any ability in the darkness to see the wall and the 1.5 metre drop. If the fall occurred shortly before 6.57 am (remembering that this was mid-winter in Lithgow on the western side of the range) the hazard would have been somewhat more visible.

51 In all the circumstances, given that the appellant appears to have left home at 3.30 am to take the dogs for a walk, it is unlikely from human experience that he remained out in the chill of a Lithgow winter morning for somewhat over three hours before falling over the wall. It is far more likely, in my view, if one accepts that he fell over the wall, that this occurred in the dark some not-too-lengthy time after leaving home.

52 The appellant sought to make something in submissions as to the body temperatures contained in the medical records. For my part, this was pure speculation. Any medical conclusion from the temperatures recorded of the appellant’s trunk and of his extremities required medical opinion.

53 The inference that the appellant fell over the wall while walking down the hill rather than stumbling from the side is assisted because of the ambulance officers’ conclusion and the greater visibility of the drain from the side. Further, the scale of the appellant’s injuries appears more consistent with a significant fall of 1.5 metres than stumbling into the shallow drain from the side.

54 The inference that I would make is also more likely to have been the cause than falling off the wall having been standing on it. Such a fall would be less likely to lead to the position of the blood and urine 2.6 metres from the base of the wall and would, in ordinary human experience, be unlikely to have led to the significant injuries that would occur from a sudden fall from that height after tripping or stumbling while in motion.

55 As to the possibility of the appellant having been assaulted, the police having investigated the matter do not appear to have formed any such view. The ambulance officers do not appear to have formed any such view. While it is a possibility, on all the evidence, including the opinion of the ambulance officers at the time, I am prepared to infer that the accident occurred in the manner asserted by the appellant.

56 For the avoidance of doubt, and in deference to the primary judge, if it is not legitimate to use the ambulance officers’ record in the way that I have, I would agree with the primary judge that on the material available it was not possible to infer that the accident happened in the way asserted by the appellant. All the other material, while consistent with that being the case, does not permit, in my view, any inference that it occurred in that fashion. Critical is understanding the place of the body, its configuration and its relationship to the surrounding structures. The ambulance officers had that advantage. I read their note as recording their view. That evidence, together with the balance of the consistent material is sufficient in my view to allow the drawing of the inference in question.

57 I turn to the questions of damages, after which I will return to the question of contributory negligence.

Damages

58 Notwithstanding her views on liability, the primary judge considered the question of damages.

59 Her Honour dealt with damages at [80]-[179] in a careful and thorough review of the facts.

60 Notwithstanding the evident care with which the primary judge approached the task, her findings and conclusions can be viewed as contingent in the sense discussed in Wade v Burns [1966] HCA 35; 115 CLR 537 at 555, 563 and 568 (Barwick CJ, Menzies J (with whom Taylor J agreed) and Owen J, respectively), King v Goussetis (1986) 5 NSWLR 89 at 94-95 (McHugh JA, with whom Kirby P and Hope JA agreed), Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 at 263 (Kirby P, with whom Meagher JA agreed), Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 at [35]-[36] (Basten JA), Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 at [22] (Basten JA, with whom Ipp JA agreed) and Tarabay v Leite [2008] NSWCA 259 at [24]-[35] (Basten JA, with whom Bell JA and I agreed).

61 The questions alluded to by Basten JA in Tarabay v Leite as to the degree to which error of the appropriate kind must be revealed in contingent findings was not debated in this appeal. Both counsel approached the matter on the basis of the necessity to find error in the various conclusions of the primary judge. I will do likewise, by reason of the approach of counsel and also out of deference to the careful judgment of the primary judge.

Non-economic Loss

62 The primary judge carefully examined the medical records contemporaneous with the accident; she recognised the severity of the trauma to the head; she examined the evidence concerning the appellant’s personality and mood changes with care, paying particular attention to the evidence of the appellant’s mother, Ms Shakespeare. The primary judge also gave careful attention to the personal history of the appellant, including his learning difficulties, and his potential for aggressive, and sometimes violent, behaviour. Alcohol had played its part in the past. Having examined the evidence, I am content to adopt the clear and careful reasons of the primary judge in these respects. Her Honour correctly observed that the real issue was whether there had been a change in the appellant’s conduct since the accident.

63 The answer to this question depended not only on her Honour’s conclusions on the lay evidence but also on an analysis of the competing medical evidence.

64 Before turning to the specific topic of mental depression, the primary judge drew the following conclusions at [128]-[130]:

[128] Based on the medical evidence, I cannot find that the plaintiff has any identifiable memory deficit as a result of the brain injury. However, I accept that Ms Shakespeare’s evidence (and what she told Dr Roberts about the plaintiff since the accident) reflect a deterioration in his behaviour. I accept that after the accident the plaintiff had mood swings and was more aggressive and angry. I do not accept the submission of the defendant that this was a re-emergence of his pre-accident personality and unrelated to the accident. I am fortified in this finding by the evidence that after being prescribed Epilim his behaviour stabilised.
[129] Given the temporal association between the change and the accident I am satisfied that the plaintiff did suffer some injury which has affected his behaviour. That this position was not made entirely clear on testing could be because, as Mr Rawling indicated, the plaintiff was functioning at a very low level before the accident and a small change difficult to quantify through objective testing.
[130] Nonetheless I accept that the evidence supports change in behaviour related to the accident. Since the accident the plaintiff has been reluctant to socialise and both he and his mother said that he prefers to be at home rather than go out. Ms Shakespeare said that this is a change in the plaintiff’s attitude.

65 The primary judge then reviewed the evidence on the question of depression and concluded at [140]-[141]:

[140] Whether the plaintiff suffered depression in the clinical sense or whether his suicidal thoughts in 2003 were related to some other aspect of his injury cannot be determined on the evidence. He continues to see his general practitioner who continues to prescribe the antidepressants. I am satisfied that the plaintiff’s behavioural change – his mood swings and his social isolation are caused by the brain injury from the accident.
[141] Whether the depression stems from the separation or is a consequence of the injury is more difficult to determine. Given its persistence over years, it is more probable than not that it is connected with the injury.

66 Her Honour then dealt with the injury to the wrist.

67 Having concluded this review of the evidence, the primary judge said at [144]:

The damages for non economic loss are to be assessed as a percentage of a most extreme case. I assess damages for non economic loss as 35% of a most extreme case.

68 The appellant attacked the 35% as inadequate. First, criticism was made of the failure to direct any attention to the probable T11 fracture. That oversight can be forgiven. Little, if any, attention is given to it in the medical reports. It does not appear to have been the cause of any disability. By September 2002, the T11 fracture was assessed to be stable by Dr Nair.

69 The balance of the criticism was made from what might be said to be a “global perspective”. It was said that at least 50% was warranted.

70 There is no doubt that the physical injury suffered was significant. The brain trauma and amnesia were serious. However it is equally clear that the appellant made a significant recovery. The medical evidence was equivocal as to any measurable long term impairment, but her Honour’s findings (which were not challenged by the respondent) reveal the on-going effects of the accident. Taken as a whole, in my view, the 35% assessment is well able to be supported. The primary judge also had the advantage of seeing the appellant and his mother, and of questioning Dr Rawling (the only doctor who was cross-examined).

71 Given the primary judge’s advantages in seeing the witnesses and given her Honour’s careful weighing of the evidence I am not persuaded that there is any error revealed. Thus, I would not interfere with a conclusion of 35%. Having examined the evidence I consider that conclusion to be open and properly made.

Economic Loss

72 The primary judge at [145]-[159] of her reasons examined the evidence as to the appellant, his work history and the likely effects of the accident. Once again, those findings were clear and comprehensive. No attack was made on these primary conclusions.

73 The appellant was a man of limited education and skill. He had worked in the past in the building industry as a labourer, in a pump manufacturing business, mowing lawns, fencing, concreting and at a kennel and dog grooming business. His work had been sporadic. He had had two motorcycle accidents. During the appeal, in argument, counsel for the respondent accepted a description of the appellant as someone who was not equipped with sophisticated alternative skills for the labour market.

74 No sum for past economic loss was awarded.

75 The primary judge thought it most appropriate to approach the assessment of future economic loss by a global sum. No specific complaint was pressed about this approach. It was said, however, that intuitively it was far too low for a 31 year old man, in the light of her Honour’s primary findings. These findings (which were not the subject of appeal) were at [156]-[159] as follows:

[156] … The defendant argued that the plaintiff’s pre-accident personality was difficult and would make it difficult for him to be employed. I accept that. The accident has, in my view created further difficulties for the plaintiff in being employed. In fact he said that he would find being supervised difficult. He said, of being supervised:
“Depends who they were … . Depends the way they speak to me … the way they treat me … Putting me down … if they treat me good I’ll treat them good, if they treat me bad I’ll treat them bad.”
[157] It is probable that the personality changes in the plaintiff as a result of the accident, his social isolation as he reflected in his comment to Dr Potter: “ … I don’t like to leave the house that much. Don’t like crowds … I did handle change but its hard for me to do things” would make it more difficult for him to manage a lawn mowing business than before the accident.
[158] Although the accident may have caused a diminution in the plaintiff’s capacity to carry out work of the type he would prefer, I am not persuaded that this would have sounded in an ongoing economic loss. To the extent that his past conduct reflects the future, the plaintiff is unlikely to have sought and maintained regular work. It is probable that in the future he may obtain work from time to time.
[159] The consequences of the plaintiff’s injury are such that he may have difficulty maintaining employment in the future. …
(Footnotes omitted)

76 Her Honour then concluded at [159]:

… Taking into account the plaintiff’s age and his past work record, I would have awarded a sum of $50,000 for future economic loss.

77 As to past economic loss, the appellant did not press any particular sum. Indeed, in oral submissions it was recognised that in the four years before the trial, the appellant was caring for his daughter for a significant period of time, and a global figure for past and future should be given.

78 I have difficulty with the conclusion of the primary judge as to $50,000 for future economic loss. The appellant was a man with few employment skills and of limited education and intelligence. He had not revealed anything but what might be said to be a loose grip on the labour market before the accident. The accident has had an effect, as found, on his personality and behaviour, though, in significant respects, capable of being controlled by medication. Nevertheless, a man with limited skills has had them further diminished by personality changes tending to his social isolation and propensity to aggression.

79 Whilst giving full weight to the findings of the primary judge, a sum of $50,000 for future economic loss represents (on the figures put on appeal, about which there was no dissent) only a very small weekly economic loss. In my opinion, a global sum adequate to cushion the effects of the accident on an otherwise restricted skill base would be $100,000.

Care and Assistance

80 The primary judge examined the evidence as to events after the accident and concluded as to factors about past care at [167] of her reasons:

[167] … I am satisfied that for a period of 8 months from the date of the plaintiff’s release from hospital until he was prescribed medication for his depression and mood swings in April 2003, Ms Shakespeare provided him with care and assistance in domestic chores and other assistance which arose solely because of the injury. I assess that level of that assistance at an average of 10 hours per week.

81 It was submitted that this was inadequate.

82 The appellant’s written submissions did not descend to any particular criticisms of the past care assessment by her Honour. Having regard to Ms Shakespeare’s evidence, and its review by the primary judge, I see no error in the assessment of the past need for care. The parties on appeal appeared to agree that this past care was to be valued at $6,800.

83 As to future care the primary judge said the following at [167]-[168]:

[167] … I do not find that the plaintiff requires monitoring of his medication. The plaintiff agreed that he had voluntarily stopped taking his medication rather than forgetting about it.
[168] I am not satisfied that the plaintiff has any future need for domestic services or assistance.

84 These findings were attacked by the appellant. The appellant submitted that it was reasonable to expect that the appellant would require assistance for at least 1 hour per day. This was to be required primarily, if not solely, for Ms Shakespeare to attend the appellant to ensure that he took his medication and to give him counselling and support for his depression.

85 Given the evidence, in particular of the appellant, Ms Shakespeare and Dr Rawling, I am not able to identify any error in her Honour’s conclusions. The appellant appeared to be fully able to manage his medication; he is able to care for his daughter for up to a week at a time. There was no evidence which requires the conclusion that he requires on-going domestic assistance.

Future Out-of-Pocket Expenses

86 The primary judge accepted that a modest sum should be awarded for future cost of attendances upon medical practitioners and for the cost of what would otherwise be subsidised medication. At [179] the primary judge said:

I would have awarded damages for the future representing the subsidised costs of his present medication – approximately $90 per annum and a small award for future cost of attendances on a general practitioner in the event that there were occasions when the plaintiff could not find a doctor who would bulk bill in relation to his attendances, $5,000.

87 The argument about this was unsatisfactory, in that it lacked satisfactory underlying evidence, precision and detail. In the end, the appellant submitted that a significant sum in the order of $35,000 (or $35 per week) for unsubsidised medication should be given. The primary judge recorded that the total claim for the plaintiff under this head at the trial was $20 per week. No explanation was given for the difference.

88 The evidence revealed that there was a need for future medication for depression and mood control. No precise estimate of costs was made for these expenses. The evidence revealed that the prescription of these drugs would require visits to medical practitioners. The evidence was that the appellant visited practitioners who would often bulk-bill. The appeal proceeded on the basis that the appellant had been in receipt of some kind of (unidentified) disability pension which provided for access to subsidised pharmaceuticals. The evidence and submissions did not deal in any precise way with the nature of any pension, its continuance upon receipt of compensation for economic loss or the effect on the subsidisation of pharmaceuticals in circumstances of receipt of compensation.

89 The primary judge referred to what was said by Dixon CJ and Windeyer J in National Insurance Co of NZ v Espagne [1961] HCA 15; 105 CLR 569 at 572-573 and 599-600, respectively. These passages appeared to be used in support of the proposition that if the appellant had been receiving these subsidies and it had not been proved that he would not continue to receive them, damages would be reduced by reference to their receipt. Such a proposition is not to be drawn with any clarity from the case.

90 The legal principles as to benefits from other sources are discussed in Luntz H Assessment of Damages for Personal Injury and Death (4th Ed) at 428-430 [8.1.5]. There, Professor Luntz summarises the major cases including National Insurance v Espagne; Redding v Lee [1983] HCA 16; 151 CLR 117; Manser v Spry [1994] HCA 50; 181 CLR 428; and Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1. The following can be taken from that summary. The basic principle is one of compensation, but the plaintiff should not receive a windfall. If the plaintiff is legally obliged to repay the collateral source out of the damages, full damages are paid. Equally, the collateral benefits should be ignored if they have an “additional characteristic” that they were intended to be retained by the plaintiff notwithstanding a claim for damages. See also Diamond v Simpson(No 1) [2003] NSWCA 67 at [205]-[233].

91 No submissions were made as to the possible effect of the Health Insurance Act 1973 (Cth), s 18 which would appear to disentitle a person from receipt of Medicare payments if a right to receive compensation has been made out: see Luntz op cit at 278-284 [4.4.1]-[4.4.6] and 432 [8.2.3].

92 It is not for the Court to rummage through the evidence and Commonwealth and State legislation to piece together the appellant’s entitlements on the evidence. Counsel gave no real assistance in this regard. Decisions on appellate review do not require the Court on appeal to search out and piece together the cases of the parties.

93 This Court is left, however, to do its best with these limitations to assess the likely need of the appellant for the relevant drugs and medical attendances.

94 I do not think it can be assumed that the appellant will have the benefit of Medicare rebates (bulk-billed or otherwise) for future visits to doctors to obtain necessary prescriptions. The submissions were unhelpful as to likely frequency in this regard. There was evidence of the cost of such visits: $31 at a private rate (Exhibit D). The submissions were unhelpful as to cost of pharmaceuticals, and the frequency of the need for them. As I said earlier, the submissions do not help in relation to the legal basis for any subsidy in the future.

95 It is unclear from [179] of the primary judge’s reasons as to whether she would have awarded $5,000 in all, or $5,000 plus $90 per annum. On the paucity of material available, and in the light of the Health Insurance Act, s 18, I would award the appellant a sum by way of buffer for these expenses at a level in the order of the $15 per week. This would provide approximately $750 per year for medications and attendances at medical practitioners. Discounting at the rate the appellant did in submissions on appeal (to which no objection was taken) this would entitle the appellant to a sum of $15,000 for these future medical out of pockets.

Fund Management

96 This issue was not dealt with in written submissions. It was not raised before the trial judge. The High Court in Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49 made clear at 52 (Brennan CJ, Dawson, Toohey and Gaudron JJ) that the need of the plaintiff for fund management assistance must arise from the intellectual impairment caused by the defendant’s negligence.

97 Here, the evidence was inadequate to draw the conclusion that the personality effects caused by the accident could be seen to give rise to the need for fund management for a modest award. The evidence was plain that one aspect of the effects of the accident was a heightened sense of responsibility in the appellant. He had significantly reduced his alcohol intake and was able, for up to a week on end, to care for his daughter.

98 There is no basis to conclude from the medical evidence that any impairment from the accident caused a need for fund management.

Conclusion on Damages

99 Thus, subject to contributory negligence, I would award the following:

(a) non economic loss at 35% of the worst case (the money figure being apparently agreed)	$149,500
(b) past and future economic loss (including superannuation)	$100,000
(c) past care (the money figure not apparently the subject of dispute)	$ 6,800
(d) future out of pockets	$ 15,000
$271,300

Contributory Negligence

100 On her Honour’s findings the appellant was clearly intoxicated at the time of the accident. However, her Honour found at [44] of her reasons (see above) that the accident was likely to have happened even had the appellant not been intoxicated.

101 The Civil Liability Act, s 50 is in the following terms:

(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

102 Her Honour’s findings at [20]-[23] were to the effect that the appellant was intoxicated at the time of the accident. Her Honour’s finding [23] of her reasons (see above) engages s 50(1). However, her Honour found at [44] of her reasons (see above) that the “accident” was likely to have occurred even had the appellant not been intoxicated. Except for the use of the word “accident”, this finding can be seen as (and I would take it to be) a finding for the purpose of s 50(2).

103 With these findings, s 50(3) is engaged and there is a statutory presumption that there was operative contributory negligence (of at least 25%: see s 50(4)) unless the Court is satisfied that the person’s intoxication did not contribute in any way to the cause of the injury. The relationship between sub-s 50(2) and (3) is not entirely clear, but can be seen to contrast or juxtapose the likelihood of the injury etc occurring to a non-intoxicated person and proving that intoxication played no part in the cause of the injury etc. It was expressed as follows in the Second Reading Speech of the then Premier in the Legislative Assembly on 23 October 2002:

The bill will clamp down on plaintiffs who are injured while they are intoxicated. A defendant will not owe a plaintiff a higher standard of care simply because the plaintiff was intoxicated. Nor will personal injury damages be available for an intoxicated person unless the accident was likely to have occurred even if the person had not been intoxicated. If the accident is likely to have occurred anyway, the intoxicated person’s damages will be reduced on a presumption of contributory negligence of 25 per cent, or more if appropriate, unless the person’s intoxication played no part in the accident.

104 Here, the terms of the finding in [44] was clearly one as to s 50(2), not s 50(3). The primary judge did not make a finding that would remove the operative effect of the presumption in s 50(3). On all the evidence, I cannot conclude that there was no contribution of the intoxication to the fall over the wall, being the cause of the injury. The presumption in s 50(3) therefore applies.

105 It is then necessary to consider s 50(4). This provides for a mandatory 25% allowance for contributory negligence. The allowance can be increased if the Court thinks it appropriate in all the circumstances to do so. Here, Mr Campbell SC submitted that there should be a contributory negligence allowance of 50%. I cannot agree. The appellant went for a walk at night with his dogs when intoxicated. I do not think that requires a court to conclude that a greater contribution than 25% reduction of damages was necessary, especially as he fell over a 1.5 metre wall above a concrete drain which was unlikely to have been seen even by a sober person.

106 In all the circumstances, I see no reason to increase the allowance for contributory negligence pursuant to s 50(4) above 25%.

107 In my view, therefore, the appeal should be allowed and the appellant should be entitled to a verdict of $203,475 to take effect as at the date of the primary judge’s orders, being 13 June 2007. Interest on that amount can thereafter take effect pursuant to the Civil Procedure Act 2005 (NSW), s 101.

Orders

108 I would make the following orders:

1. Appeal allowed.
2. Orders made by the District Court on 13 June 2007 be set aside and in lieu thereof it be ordered:
(a) there be verdict and judgment for the plaintiff in the sum of $203,475 to take effect as at
13 June 2007;
(b) interest therein be payable and calculated by reference to the Civil Procedure Act 2005, s 101; and
(c) the defendant pay the plaintiff’s costs.
3. The respondent pay the appellant’s costs of the appeal.

109 BASTEN JA: I agree with the orders proposed by the President and with his Honour’s reasons.

110 GROVE J: I agree with Allsop P.

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