JULIE Posetti v Kosciusko Thredbo Pty Limited

[2004] ACTSC 50

JULIE POSETTI v KOSCIUSKO THREDBO PTY LIMITED
[2004] ACTSC 50 (23 June 2004)

NEGLIGENCE – personal injury – ski resort – claim against resort operator – timber ramp on boardwalk – gradient of ramp – compliance with building code – compliance with Australian Standards – effect of ice on ramp
DAMAGES – personal injury – T7 fracture – damage to associated structures – chronic pain dysfunction syndrome – loss of career – no issue of principle

National Parks and Wildlife Act 1974 (NSW)
National Parks and Wildlife Act Regulations 1974 (NSW), r. 11
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44
Practice Direction No 2 of 2001

No. SC 487 of 2000

Judge: Master Harper
Supreme Court of the ACT

Date: 23 June 2004

IN THE SUPREME COURT OF THE  )
  )  No. SC 487 of 2000
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:JULIE POSETTI

Plaintiff

AND:KOSCIUSKO THREDBO PTY LIMITED

Defendant

ORDER

Judge:  Master Harper
Date:  23 June 2004
Place:  Canberra

THE COURT ORDERS:

1. Judgment be entered for the defendant.

Contents Page      Paragraph

Background   1
The pleadings 5
The case on liability – the plaintiff’s evidence        7
The case on liability – the plaintiff’s supporting witnesses     16
Condition of the ramp – the defendant’s witnesses     24
The footwear issue            35
The meteorological evidence      39
Expert evidence – ski resort management 42
The engineering evidence      48
Damages – the plaintiff’s evidence      76
Damages – the supporting witnesses    106
The general medical evidence     109
The orthopaedic evidence     117
The psychiatric evidence     130
Gradient of the ramp – the regulatory scheme      137
The ice issue                 149
Contributory negligence  164
Damages – provisional assessment 165

Conclusion 187

Background

1. The plaintiff’s claim is for damages for injuries which she suffered when she fell on a ramp at Thredbo in New South Wales on 5 August 1997.  The defendant is sued as the company which occupied, managed and controlled the area of land on which the ramp was located.

1. The company is, and was in 1997, the lessee of part of the Kosciusko National Park, where it operates, for commercial purposes, the Thredbo Ski Resort.  The resort is promoted by the defendant as the best resort in the southern hemisphere, and is regarded by many as Australia’s premier ski resort.  The land includes extensive downhill ski runs on the south-facing slopes of the Ramshead Range, accessed by a complex of chairlifts and T-bars.  At the foot of the slopes lies a substantial village, which includes commercial, club and private lodges and apartments, a hotel and a number of restaurants, cafes, bars and shops.  Portions of the village are located on both sides of the Thredbo or Crackenback River, which flows through the valley in a generally northeasterly direction.  Whilst primarily a winter resort, Thredbo is a popular destination for tourists in the summer months also, offering a golf course, tennis courts and a bobsled which was installed some ten years ago.

1. The terrain is steep, and much of the village has been built on sharply inclined ground, particularly on the southern side of the river.  Shortly before midnight on Wednesday 30 July 1997, without warning, a catastrophe struck the village.  There was a landslide, and an entire ski lodge, foundations and all, slid down the hill, destroying another lodge in its path.  There were people in both lodges, mostly asleep in bed.  By daylight, police, ambulance and emergency services personnel were in the village, and over the next few days and nights rescue workers toiled ceaselessly in an attempt to rescue any occupants of the lodges who might still be alive.  As it turned out, there was only one survivor.  It was a week before the last body was removed from the wreckage.

1. 1997 was a poor season for snow.  The occupation levels of the destroyed lodges and indeed the entire village were well below capacity.  The landslide and the rescue project were, as one would expect, the major national news story of the time.  A large media contingent arrived in Thredbo to report on the events and to keep the public informed of developments.

The pleadings

1. The statement of claim asserts that the defendant at all material times occupied and/or managed and/or controlled an area of land near Thredbo in New South Wales containing timber walkways providing access to Friday Flat, and that on 5 August 1997, the plaintiff was walking along one of the walkways when she slipped and fell heavily and was injured, suffering a compression fracture of the T7 vertebra and soft-tissue injuries to the back and elbow.  The injury is alleged to have been caused by the negligence of the defendant by its employees and/or agents.  The action went to trial of the following particulars of negligence:

(i)Constructing and/or leaving in place a ramp on the walkway which was extremely slippery and hazardous in icy conditions.

(ii)Constructing and/or leaving in place a ramp on the walkway which was too steep for icy conditions.

(iii)Failing to ensure that the surface of the walkway on the ramp was raised or otherwise treated to reduce the risk of slipping during icy conditions.

(iv)Failing to supervise or supervise adequately the use of the walkway during icy conditions when it was extremely hazardous.

(v)Failing to provide adequate warnings of the risk of using the ramp during icy conditions.

(vi)Failing to warn persons such as the plaintiff that they should not walk upon the walkway in icy conditions unless special footwear was used.

(vii)Constructing and/or leaving in place handrails adjacent to the ramp which were inadequate.

1. The defence put all of these assertions in issue, and alleged that the plaintiff was guilty of contributory negligence, particulars of which were:

(i)Failure to take proper precautions for her own safety.

(ii)Failure to wear appropriate footwear for the prevailing weather conditions.

(iii)Failure to take any steps to avoid the consequence of any act or omission of the defendant relied upon by her.

(iv)Carrying equipment in such a way as to cause the plaintiff to be unstable.

(v)Carrying equipment in a bag slung or placed across the front of the body.

(vi)Failing to carry equipment stabilised in a backpack or similar container such that the plaintiff would not become unbalanced.

(vii)Failing to grip the outer edge of the balustrade provided so as to prevent the plaintiff falling.

The case on liability – the plaintiff’s evidence

1. At the time of the landslide, the plaintiff was a senior political reporter with the Australian Broadcasting Corporation, based in Canberra.  She was asked by the head of her department to go to Thredbo to relieve other ABC staff who had been down there for some days.  The request came at relatively short notice: the plaintiff packed some clothes and equipment and went to Thredbo on the afternoon of Monday 4 August 1997.  She was unfamiliar with the village and with the snowfields generally.  She stayed at the Thredbo Alpine Hotel, which the ABC was using as its base.  Her duties were to commence on the morning of Tuesday 5 August 1997, and her first task was to attend a press conference in a building in the Friday Flat area, at the northeastern end of the village.  The building would in normal circumstances have been accessible by Friday Drive, the main access road into the village, but use of the road was heavily restricted by police and emergency workers.

1. There was another route for pedestrians from the hotel to the press conference site, via one of two bridges across the river in front of the hotel.  For part of its length, at either end, the path was paved with interlocking concrete paving blocks.  The path led around the Thredbo tennis courts on their northern side.  East of the tennis courts, the path consisted of a raised timber walkway, with slight undulations matching the contours of the ground a short distance below.  The walkway led to a rectangular platform at the foot of the bobsled track, upon which was a small timber building.  The path joined the platform at its northwestern corner, and continued in the same direction via a ramp at its southeastern corner.  The timber walkway ended at the foot of the ramp, and the rest of the path to the residential development of Woodridge and the Friday Flat area was again of interlocking pavers.  Because of the manner in which the path joined the platform at the bobsled, a pedestrian using the path for access between the hotel and the Woodridge-Friday Flat area was required to change direction at the platform in a zigzag consisting of a right and left turn, to get around the building.

1. There was a point on the path between the bobsled building and Woodridge which was directly opposite the landslide site on the other side of the river and which afforded a convenient vantage point for press and television cameras.  The plaintiff knew vaguely where the press conference building was, having driven past it on her way in, but she had no idea how to get from the hotel to the building.  An ABC colleague, Ms Fran Kelly, a former supervisor of the plaintiff, also from Canberra, had been in Thredbo for some days and knew the way, and the plaintiff went to the conference on the Tuesday morning, 5 August, with her.  The plaintiff was carrying a box-shaped bag of thick fabric containing her tape recorder, batteries, mobile telephones, microphones and other broadcasting equipment.  The bag had a shoulder strap, and the plaintiff, who is left-handed, carried it with the strap over her left shoulder and the bag to the front of her body.  A similar bag was in evidence and its dimensions were estimated by counsel at about 15 inches by about 12 inches (45 by 30 centimetres).  The plaintiff estimated its weight at between 10 and 20 kilograms.

1. The plaintiff and Ms Kelly followed the path past the tennis courts to the bobsled building, around it and down the ramp.  The plaintiff’s evidence is that she had been using both hands to stabilise her bag.  She noticed that the ramp appeared to be very steep.  She had already decided that the walkway was icy and potentially slippery, and she put her left hand on the left balustrade of the ramp.  Ms Kelly was by this time a step or two in front of her.  The plaintiff took a couple of steps and felt her feet starting to slip.  She tried to grab hold of the railing, and her feet flew up in front of her.  She fell heavily on her back.  She was winded and felt shocked and numb, with a tingling sensation in parts of her body.  It was some time, the plaintiff thought perhaps twenty minutes, before she was able to stand up and continue.  Ms Kelly turned around and came back to assist.  She asked the plaintiff if she was all right.  Another reporter not then known to the plaintiff, James Woodford of the Sydney Morning Herald, arrived on the scene and stayed with the plaintiff to help her.  Ms Kelly walked on to represent the ABC at the press conference.

1. The plaintiff, asked whether she had made any observation of the surface on which she had fallen, said that it was extremely slippery.  It was like a thin, glistening layer of ice on top of the wood.  Eventually she got up and, with Mr Woodford’s assistance, continued on to the press conference venue.  By the time they got there, the conference was over.

1. Under cross-examination, the plaintiff said that she did not remember specifically whether she noticed a similar glistening on the walkway until she got to the top of the ramp.  Her recollection was that there was no gap between the timber planks forming the ramp, so that there was nowhere for melting water to run between the boards.  It appeared as though there was a thin layer of water that had frozen on the surface.

1. The plaintiff was asked whether she could not have grasped the balustrade or handrail.  He answer was that she tried to grip it but was unable to because it was too wide.  She had no stability.  Her fingers were too short for her to be able to grasp the top of the balustrade.  She tried to grip the inside edge, that is the edge closer to her, rather than the outer edge.  She recalled running her hand along the top and trying to grip underneath the inside edge with her thumb.  She was asked why, when she found that this wasn’t any use, she did not try to change her grip.  Her reply was that by that time she was flying into the air and landing on her back.  She denied that she was in any hurry to get to the press conference, or that she and Ms Kelly were running late for it.  Her general recollection was that by the time of the fall, the sun had not come over the mountains and it was still very cold and a little misty, though not enough to interfere with visibility.

1. On 26 August 1997, the plaintiff lodged a Comcare claim.  In the claim form she described the injury in the following terms:

Slipped, fell on back while walking along icy wooden ramp – causing immediate back pain.

The form asked her to describe in detail the events which contributed to the injury.  Her response was:

Slippery, sloping ramp covered with ice – ice was beginning to melt.  I lost my footing and landed on my back – my fall being broken slightly by my elbow.

1. On 30 October 2001, the plaintiff verified answers to interrogatories on oath.  Some of her answers were tendered by the defendant.  The answers included the following.

A15(i) I was calmly walking with my colleague to the first press conference of the day.  I was walking with one foot in front of the other – straight ahead.

(ii) As I began the descent down the ramp I moved towards the over-sized railing and began to run my left hand along the top of the railing for support.  It was impossible to grip as the balustrade was far too wide.  I used my right hand to continue stabilising the equipment bag I was carrying across the front of my body.  My left and right feet were engaged in the normal process of walking – one foot in front of the other.

(iii) I was carrying a reporter’s kit bag across my body with the strap running left to right across my body and the bag positioned in front of my body so that I could stabilise it and use my hands to redistribute the weight.  I’m unsure of exactly how much it weighed by (sic) it contained a professional Sony tape recorder, microphone, notepad, mic. Stand, tapes and other sundry items, which in total may have weighed around ten kilos.

(iv) I was looking and facing straight ahead while watching where I put my feet.

A16 The weather was clear and there was no snow on the ramp or walkway.  Visibility was good.

The case on liability – the plaintiff’s supporting witnesses

1. Both parties called a number of lay witnesses who gave evidence as to the circumstances of the plaintiff’s fall and the condition of the walkway and ramp.  The plaintiff called four fellow-ABC staff members, and a journalist employed by the Sydney Morning Herald.  The defendant called six of its own employees, a police sergeant and an ambulance officer.  It is necessary to summarise this evidence.

1. Ms Fran Kelly was the plaintiff’s immediate superior in the ABC bureau at Parliament House in Canberra, and had worked with her previously in Sydney.  She thought highly of the plaintiff as a political reporter and radio journalist.  Ms Kelly travelled to Thredbo as part of the ABC team covering the recovery efforts.  Her recollection was that she arrived in Thredbo either on Monday 4 August (the same day as the plaintiff) or perhaps on the previous day.  She was familiar with the route to the press conference.  She remembered walking out of the village, across the road and onto some kind of wooden boardwalk.  She had a memory of a sort of ramp that went up and over something, and they were on the downward slope of that when the plaintiff slipped.  She said that they were walking along talking and she would have been alongside the plaintiff, or perhaps half a step ahead of her.  The plaintiff’s feet went from under her, and she slipped and ended up on the ground.  Ms Kelly waited with her for a short time but left to attend the press conference, after another journalist, James Woodford, offered to stay with the plaintiff.  Her memory of the state of the boardwalk on the morning of the fall was that it was slippery and icy.

1. Ms Kelly agreed in cross-examination that she was first asked to recollect the circumstances of the fall earlier in 2003.  She made no notes or record at the time of the incident.  She agreed that her memory was not absolutely clear.  She did not know Thredbo well, and that occasion was the only time she had been there.  She had a clear memory of the boardwalk because it was a route she took regularly during the three or four days she was there.  Cross-examined about whether there was ice present, she said that she remembered walking on the boardwalk gingerly and feeling that it was a slippery experience being on that surface.  It was very cold, though it did not snow whilst she was there.  She conceded that she was not a snow person and was not used to walking around snow resorts.  She recalled feeling that the wooden boardwalk was precarious.  The surface was slippery with a thin layer of ice.  Ms Kelly was not able to recollect any handrail.

1. The plaintiff also called Ms Anne Barker, an ABC journalist in Canberra in 1997.  She arrived in Thredbo the day after the landslide, which would have been 31 July, and stayed there until the following Thursday.  She stayed at the Thredbo Alpine Hotel and walked via the boardwalk to press conferences at Friday Flat twice each day.  Her recollection was that there were patches of ice scattered across much of the boardwalk.  She clearly remembered the ramp leading down from the bobsled deck.  One morning, she could not recall which day, she was walking with a colleague, Mike Donaldson from the Canberra newsroom, when she fell on the same ramp herself.  In her own words, she just went for a sixer down the ramp.  She caught onto Mr Donaldson and this broke her fall.  Otherwise she would probably have landed very heavily on her backside.  In the event, she was not hurt.  She said that she had been wearing a pair of black leather shoes, which she thought had a standard leather sole.  She was given very little notice to get ready to travel to Thredbo.  She knew that she would be in the village rather than on the slopes, and it did not occur to her that she needed to take any special footwear or clothing.  She had a general recollection of ice on the boardwalk most of the time she was there.  The only time she slipped was on the ramp from the bobsled deck.  Ms Barker was first asked to turn her mind to the events of August 1997 during the early part of 2003.  She said that she nevertheless had a clear memory of patches of ice on the boardwalk and of a thin layer of ice on the ramp where she slipped.  She though that she had probably been carrying an ABC bag with equipment at the time of her own fall.  She continued to use the path for the rest of her time in Thredbo without any similar incident.  She recalled being very careful each time she went down the ramp thereafter.

1. Mr Matt Peacock was by the time of the hearing based in London as European correspondent for the ABC, and he gave evidence by telephone.  He swore an affidavit a few days before giving evidence.  He had been sent to Thredbo in early August 1997 to cover the disaster.  During his time there, he had cause to walk on the wooden walkway past the bobsled site to view the landslide area.  He said that the walkway was in shadow and was very icy and slippery, which was compounded by the fact that this was not immediately visible.  There was no handrail for much of the walkway, and where there was, it was difficult to hold.  It was almost impossible to keep on one’s feet and he recalled that on more than one occasion he nearly slipped on the walkway himself.  He returned to Canberra the day the plaintiff arrived in Thredbo.  He was asked to cast his mind back to 1997 earlier in 2003.  He remembered that when he first heard that the plaintiff had fallen, he had though of the bobsled ramp as the likely place, as he had nearly fallen there himself a few times.  The first time he walked down it, he nearly fell over, and the next time he walked down it very gingerly but even then nearly fell over.  He remembered the need to exercise extreme caution as the ramp started to go down and he remembered it being extremely slippery for the whole of the time he was in Thredbo.

1. Ms Wendy Bilboe had worked with the plaintiff at the ABC in Wollongong and in Canberra, and by the time of the hearing was working with the plaintiff at the University of Canberra.  She did not go to Thredbo at the time of the landslide, but she had visited Thredbo a year or two earlier with her children, who had had a ride on the bobsled.  It was about Easter and there was no snow, though it had rained a little the previous night.  Ms Bilboe purchased tickets for the bobsled at the ticket office, which she identified as the building on the deck at the foot of the bobsled. There was at least one person inside the ticket office selling tickets, and there were other persons helping customers on and off the bobsled capsules.  On that occasion she and the children had approached the bobsled from the Valley Terminal, that is, in the same direction as the plaintiff on the day of her fall.  Ms Bilboe visited Thredbo again in March 1998, and rode the bobsled herself.  She approached it from the opposite direction, along the path and up the ramp.  After her ride on the bobsled she slipped on the ramp.  She was wearing Nike cross-trainers.  It had been raining or at least sprinkling the night before.  She was able to avoid falling.  Her husband took her hand and walked her down the ramp.  She thought the ramp was dry and that she slipped because it was steep.  She only became aware that the plaintiff had fallen on the same ramp a matter of weeks before the hearing.

1. Mr James Woodford is a journalist with the Sydney Morning Herald.  He came to Thredbo before dawn on the morning after the landslide, and spent about a week there.  On the morning in question, he was walking behind the plaintiff, whom he had met once or twice before, but has not seen since.  As she was going down the ramp, her feet went out from underneath her and she landed really hard on her back.  She sat in shock for a few seconds.  Mr Woodford went over to lend assistance.  He helped her to stand up, and stayed with her for some little time.  He remembered her walking off, obviously in pain.  His recollection of the ramp was that it was in shade and had a frosty, wet feel about it.  He remembered having to be careful every morning when walking along there.  It was the kind of place where you could easily slip over if you weren’t careful.  It was a short, sharp ramp and somewhere to be especially careful.

1. Mr Woodford’s recollection had been triggered only after he was contacted by a solicitor representing the defendant a matter of weeks before the hearing.  He initially had no idea what the solicitor was talking about, but a vague recollection returned.  It had seemed a minor incident at the time, but his memory came back and by the time he gave evidence he had a clear memory of the plaintiff taking a big fall and hurting herself and of helping her.  The event had not seemed significant by comparison with the landslide and the retrieval of bodies from the site.  His main memory was that the ramp was slippery.

Condition of the ramp – the defendant’s witnesses

1. Next we come to the defendant’s witnesses.  Mr Werner Siegenthaler has worked for the defendant since 1976.  He became mountain manager in charge of the ski lifts, snowmaking, slope grooming and ski patrol at Thredbo in 1990.  He was also responsible for the operation of the bobsled.  In 1997, he was in charge of 150 to 200 staff, out of a total of 700 to 800 staff employed by the defendant during winter.  His evidence was that the walkway and ramp were constructed in December 1994, at the same time as the bobsled hut.  The hut was used as a storage shed for the sleds.  There was also a cash register and a drink machine.  The public did not have access to the interior of the building.  Mr Siegenthaler was living at Bimbadeen, the ski lodge which was crushed in the landslide.  Fortuitously, he was at his principal home at Jindabyne on the night of the landslide.  He returned to Thredbo the next morning.  Each day he drove home to Jindabyne and returned in the morning to Thredbo, parking at the Friday Flat end of the village and walking to and from his office in the Valley Terminal.  He took the walkway past the bobsled each morning between 5.30 and 6.00 am.  His evidence was that on each morning, the walkway, including the ramp, was dry.  He encountered no difficulty in the use of the ramp, and did not see any ice on the pathway on any morning.  There was no snowmaking equipment or other source of water or moisture which might have sprayed onto the ramp.  He though that the ramp would have been a little smoother in 1997 than today.  He did not accept that even in 1997 it was hard and shiny.  He had never heard of anyone being injured or falling on the ramp.  He said that he had never been down the ramp himself when there was ice on it.

1. Mr Siegenthaler explained that a decision had been taken not to operate the bobsled during the rescue period, although some of the ski lifts were operating.  He said that for the entire week following the landslide until the last body was recovered, the weather was clear and sunny.  In cross-examination, he confirmed that he had not made any records about the state of the walkway during the landslide recovery process, and that he had had no reason to recollect any details of what he had been doing during that week in relation to the walkway until he found out about the plaintiff’s accident, probably a year or two later.  He conceded that he had not slipped on the walkway himself, and had no particular reason to remember its condition.  He had made a statement for the purposes of the case in November 2001, which he had used to refresh his memory.

1. Mr Peter Tomasi had worked for the defendant for about twenty years, and in 1997 was lifts manager.  He oversaw the operation of the bobsled, which was constructed at the end of 1994.  He had been site supervisor for the construction of the stainless steel track and the lift for the bobsled but not for the bobsled building and deck, which he said came under the jurisdiction of Mr Bill Wells, a builder.  Mr Tomasi was at home in Jindabyne at the time of the landslide and came to Thredbo immediately.  Thereafter, he drove to work at Thredbo each morning, usually between 6.00 and 6.30 am.  From time to time during the first week he used the walkway past the bobsled, sometimes in the morning and sometimes in the afternoon.  He said that its condition was dry and that it was used by a lot of people during that week.  North of the bobsled, at the edge of Woodridge, there was a main focal point for journalists, television crews and spectators to view the landslide site.  During the week he did not recall seeing any ice or frost on the walkway.  He could not be certain that he had walked along the walkway every day during that week, or on any particular day.  He did not ever slip on the track himself.  He was first asked to recall its condition during the week after the landslide three years or more later.

1. Mr David Kuhn was ski patrol manager in 1997, having worked for the defendant since 1983.  He was in Thredbo during the week following the landslide, and he used the bobsled walkway to get from home to work and back.  He generally walked along it at about 5.45 am each day.  During the days following the landslide, the weather was dry and cool.  The surface of the walkway and ramp to his recollection would have been dry.  He did not recall any ice or moisture until the last day of the recovery operation, about 6 or 7 August.  He was unaware of any other accidents on the ramp at any time.

1. Ms Jacquelin Peters had worked for the defendant since 1993, and by the time of the hearing was assistant lifts manager.  She was not in Thredbo at the time of the landslide or during the following week, and could not comment on conditions during that time.  She had used the bobsled walkway in summer and winter since it was built in 1994, and had never seen anyone fall on the ramp.  She had never had any problems in negotiating the ramp.  If it was slippery, she would tread carefully and make sure her footing was stable before each step, and would use the handrail for balance.  She normally wore hiking boots with rubber soles with a criss-cross tread.  She found that these were sturdy and gave good traction on all sorts of terrain, making them very good in the alpine environment.

1. Mr Andrew Cox was employed by the defendant from 1991 until 2002.  He is a qualified civil engineer and a former army officer.  He lived at Woodridge between 1993 and 1996.  He was property and development manager for the defendant in 1994, when the bobsled and walkway were installed.  He subsequently became chief executive of the company.  He confirmed the involvement of Mr Bill Wells as the construction supervisor of the timber decking, storage hut and ticket office, timber walkway and ramp associated with the installation of the bobsled.  Mr Cox had used the bobsled path daily to get to and from work.  He had used it during rain and after snow, and in freezing conditions.  He had himself once slipped and fallen on a section of path between the tennis courts and the bobsled.  There had been times when he had found the ramp to be slippery, for example, after snow or rain at low temperatures.  He travelled from Sydney to Thredbo immediately after the landslide, arriving at 6.00 am the next morning.  He stayed in an apartment at Woodridge, and worked from an office in the Valley Terminal building.  He used the bobsled path daily after the landslide, usually a little before 6.00 am.  His recollection was that the last body was recovered from the site early on 7 August, and that a few hours later it began raining and then snowing, until the landslide site was blanketed in snow.  He could recall no mornings when there was frost during the period, and virtually no wind in the early days.  His evidence was that on the morning of 5 August, he walked to work along the path.  There was no ice or frost on the ramp or the bobsled deck.  He heard no reports of anyone slipping or injuring themselves on the path.

1. Ms Maureen Roberts has been employed by the defendant for fourteen years as personnel manager, with general responsibility for staff matters.  In 1997 she lived in Jindabyne, and during the week following the landslide she parked at the Woodridge end of the village and walked to work along the bobsled path, generally between 7.00 and 8.30 am, returning in the evening.  Her recollection was that she wore her normal shoes, and that the path was in normal condition, with no snow.

1. Sergeant Kevin Daley of the New South Wales Police Media Unit arrived in Thredbo on the morning of 1 August 1997.  At 11.00 or 11.30 am on that morning, he set up a media conference at the Friday Flat media centre.  The weather was fine and sunny.  Sergeant Daley recalled at one point moving onto the balcony of the lodge where he was staying, taking off his police jacket, and being comfortable in a short-sleeved police shirt, although it is not clear which day or what time of day this was.  He walked twice a day along the road on the southern side of the river towards Friday Flat.  He had no recollection of seeing any ice or frost in that area.  He did not use the bobsled path.  The weather remained clear and sunny until the following Wednesday afternoon, which would have been 6 August (the day after the plaintiff’s fall).  On the Wednesday afternoon it became overcast and on the next day torrential rain set in.  Sergeant Daley referred to the Wednesday afternoon as 7 August and Thursday as 8 August; in fact Thursday was 7 August and Friday 8 August so there is some confusion about the precise days and dates, but at all events it is clear that the weather remained fine until a couple of days after the plaintiff’s fall.  Sergeant Daley recalled that it was extremely cold at night.  His understanding was that temperatures were as low as -10°C.  He was first asked to recall the events of August 1997 a few months before the hearing.

1. Mr Dane Goodwin is a New South Wales Ambulance Officer.  He went to Thredbo on 1 August 1997 as media representative for the NSW Ambulance Service, and remained there until 7 August.  He had been to the snow a few times before, but had never lived in an alpine area.  His recollection was that it was very cold, with temperatures down to -7°C overnight, and that the days were mostly sunny but cold.  He confirmed that it did not snow until the last body was retrieved at about 3.00 or 4.00 am on 7 August.  He did not recall the torrential rain referred to by Sergeant Daley, but he may have left Thredbo before the rain began.  His job was to prepare media briefings and to attend media conferences twice each day.  He used the bobsled pathway to get to the media centre.  He would generally walk from the Valley Terminal to the media centre a little after 7.00 am.  He evidence was that he never felt threatened on the walkway, and walked along it as he would any other walkway.  It seemed to be in good condition.  He never saw any ice or snow or frost on it.  He used it probably five times a day whilst he was there, and numerous other people were using it at the same time.  He never saw anyone slip or fall.  He never used a handrail.  He wore a soft-sided all weather ugg-type boot, with a soft rubber sole, slightly rippled.  The boots had been issued to him by a skiwear company on arrival at Thredbo.  He usually had a telephone in one hand and papers in the other, and just walked normally along the walkway.

1. Mr Goodwin was first asked to recollect these events almost six years later, a few weeks before the hearing.  He had numerous records including videotapes of his interviews but no records relating to the condition of the walkway.  He would not concede that there was any possibility that he might be mistaken about ice or snow on the walkway.  His memory was that the timber boardwalk continued all the way to Friday Flat and he would not concede that this might possibly be wrong.  He had not been back to the site since 1997.  He agreed that the ramp was moderately steep.

1. A statement was tendered in the defendant’s case by Dr Stephen Breathour, who conducted a general practice at Thredbo in 1997.  He had worked in Thredbo every winter for 20 years and lived there for some time. He had a contract, presumably with the defendant, to open the surgery during the skiing season and for all school holidays, and usually kept the surgery open for about 40 weeks in the year.  During the landslide he had the surgery fully staffed with another doctor on alternate days and a nurse and a radiographer.  The surgery was a base for doctors flown in for the rescue effort, and its normal function was needed for the relatively small number of people skiing during the week.  Dr Breathour lives at Woodridge, near the end of the walkway, and his surgery is at the Valley Terminal end.  Although he could not remember specific days that he walked on it, he used the walkway constantly during the rescue operation.  He recalls the weather as generally fine, and this is confirmed by his surgery records for the period 4 August to 7 August.  There was no ice or snow around the village, and definitely no ice or snow build-up on the walkway, although there may have been frosts on some days.  He estimated that up to 100 staff would have used it before 8.30 am on their way to work.  He recalled a child in summer falling on the walkway after tripping on a plank with a raised edge, but no other incident of any person falling or suffering injury.

The footwear issue

1. A significant issue arose during the hearing as to the plaintiff’s footwear at the time of her fall.  In response to a request to describe the footwear worn by the plaintiff at the time she slipped, her solicitors replied in April 2001 “flat walking boots”.  They were asked for more detail, including photographs and an opportunity to inspect the boots.  They responded as follows:

Flat, resin-sole, elastic sided Diana Ferrari shoes.  Unfortunately, our client has subsequently got rid of these shoes.

The following year, the defendant’s solicitors took the matter further, and were informed in September 2002 that the plaintiff was wearing boots which were flat with a slight heel moulded to the sole, with a basic tread pattern including a series of lines running across the sole to aid grip.  The brand was Diana Ferrari and the boots were about three months old.

1. On 2 December 2002, the plaintiff’s solicitors wrote to the defendant’s solicitors advising that the plaintiff had been able to locate what she believed were the boots she had been wearing on the day of the accident.  They provided the boots for inspection.  The boots produced were Diana Ferrari brand brown suede with laces and a synthetic sole with a patterned tread.  These were shown to the plaintiff during cross-examination and she identified them as looking like the shoes that she recollected she had been wearing at the time of her fall.  She conceded that there was a slim chance that they might not have been.  She had seen them under her mother’s bed in late 2002.  Her mother had taken them out of a garbage bag full of shoes to be given away and the plaintiff was pretty sure that those were the shoes she had been wearing.  She said that she could not remember exactly what she was wearing on the day, but knew she was wearing flat walking shoes, and these were the ones she thought she was wearing at the time.  She had had several pairs of shoes in her wardrobe.  He recollection was that she had bought the shoes on sale at a shoe shop in Wollongong some time before leaving for Europe in 1996.

1. The plaintiff was cross-examined about the particulars previously provided in which the boots had been described as flat resin-soled, elastic sided, Diana Ferrari boots.  She remembered that there had been a time when she thought that she might have been wearing such boots.  She remembered borrowing a pair of her sister’s elastic-sided brown boots, though she thought this had been some time after coming back from Thredbo.  She was a bit vague about this and suspected that she had confused the description.  The elastic-sided boots were Diana Ferrari as well.  The plaintiff had been house-sitting for a friend at the time of the landslide, and had packed what she had.  She conceded that she had been confused about what boots she had been wearing at the time.  When the plaintiff had seen the boots at her mother’s home in Wollongong during 2002, she recognised them as having been her own and this sparked a memory that they were probably the ones she had worn at Thredbo.  They had never been a particularly good fit, and her mother had a slightly smaller foot than her own.  She was asked whether she might have bought the boots in 1997, and not in Wollongong in 1996.  She thought not, and recalled seeing a photograph of herself wearing the boots in Europe in 1996.  She was shown a new pair of Diana Ferrari black elastic-sided boots in the same size, with a synthetic sole with fine furrow lines perpendicular to the direction of travel.  She eventually agreed that it was possible that she was wearing her sister’s boots of a similar design to the elastic-sided boots shown to her.  It was suggested to her that in her anxiety to establish that the fall at Thredbo had been absolutely no fault of hers, she had found and produced a pair of shoes with a good non-slip tread.  She denied this.

1. The defendant subsequently tendered a statement by Mr Charles Cutajar, dated 16 July 2003.  Mr Cutajar is the operations manager of Diana Ferrari shoes at Richmond in Victoria, and was previously manufacturing manager for the same company.  He had examined the suede lace-up boots.  He said that the boots had been manufactured as a special one-off production boot in order to use up surplus suede leather in stock.  Prior to this, a similar boot had been manufactured, but made from shiny leather rather than suede.  The special production boots, called Antelope Nubuck, went on sale in July or August 1997 and were sold only from the three Diana Ferrari shops which then operated in Victoria, located in Geelong, Brooklyn and Fairfield.  They were not available for purchase from any other outlet, or at any time prior to July 1997.  Mr Cutajar’s statement was admitted without objection, and he was not required for cross-examination.

The meteorological evidence

1. Expert meteorological evidence was called by both parties.  The plaintiff called Mr Steven Lellyett, deputy regional director for New South Wales of the Commonwealth Bureau of Meteorology.  Mr Lellyett has an honours degree from Monash University majoring in meteorology and a post-graduate diploma in meteorology.  He worked as a weather forecaster in his early years, and is a former head of the climate and consultative services section of the Bureau.  Through Mr Lellyett, the plaintiff tendered records of meteorological observations taken at two weather stations.  Thredbo Village weather station is located about 30 metres north of the Snowgums chairlift terminal, that is, a little north of the Village Terminal building and generally of the built-up area of the village, and on the northern side of the river.  Recordings at this station are taken by an observer at 9.00 am and 3.00 pm each day.  They include some observations recorded by instrument and some visual observations.  Also in evidence was a printout of data recorded automatically at a station located some 500 metres up the mountain, north of the village.

1. The records establish that frost was observed at the village site on 3 August 1997 at 9.00 am, but no frost was seen on the three subsequent days.  There was no rain recorded between 9.00 am on 3 August and 9.00 am on 6 August, though cloud was increasing by the end of the period.  The minimum temperature recorded automatically in the village each day was about -7.5° C and the maximum about 9° C.  The instruments measured relative humidity (71% at 9.00 am on 5 August 1997).  Mr Lellyett’s evidence was that it was not scientifically viable to use the conditions at the weather stations as a reliable indicator of whether or not frost might have occurred at the observation site at Thredbo Village.  He explained that there could be variations over small distances, affected by, for example, localised surface depressions, the presence of shadow and sunshine, and proximity to water such as a river or creek.  His view was that having regard to the readings, there was a small or slim chance that there might have been frost in the vicinity of Thredbo Village at 9.00 am on 5 August 1997: it was unlikely but he could not discount the possibility.

1. The defendant called Mr Russel Morison, a senior project research scientist at the Centre for Environmental Modelling and Prediction within the School of Mathematics at the University of New South Wales.  Mr Morison had previously been employed by the Bureau of Meteorology, and he was qualified as an expert witness jointly with Professor Lance Leslie through Unisearch, an expert witness facility coordinated by that University.  Mr Morison’s evidence was that there was no natural source of moisture consistent with the formation of ice on the ramp.  He conceded that if there had been frost on the ramp, the activity of people walking on it could have broken the frost up, and turned it into a slippery surface similar to ice – perhaps not as slippery as ice but close to it.  He said that ice was transparent, because of its lack of air content, and was not easy to see on a dark surface.  He agreed that if there was frost that had been walked upon at quite cold temperatures one might end up with a patina of an ice-like substance which would be slippery to walk on, particularly on a steeper slope.  Despite all of this, Mr Morison was of the view that, having regard to the meteorological readings, there was virtually no chance of ice or frost on the ramp between 8.00 am and 9.00 am on 5 August 1997.  He later revised this opinion to express it in terms that the likelihood of frost forming on the ramp at that time was fairly low.  Influence by the presence of the river nearby was a possibility but no more.  His concluded opinion, at the end of his re-examination, was that there was absolutely no chance of ice and virtually no chance of frost having been there as a result of the natural conditions.

Expert evidence – ski resort management

1. Mr John Gow was called as an expert witness in the defendant’s case.  Mr Gow is a consultant to the ski industry.  For twenty years up to 1997, he was successively President and Chief Executive Officer of two major Canadian ski resorts, one at Banff, Alberta and the other at Vernon, British Columbia, with responsibility for the design, construction, maintenance and operation of all resort facilities.  He is a qualified ski instructor and mountain guide, and has worked in the skiing industry since 1964.  He is presently a director of a major resort planning company based at Whistler, British Columbia.  He has served as an adviser to the British Columbia Environmental Assessment Review Agency on matters related to approval of snow resorts.  In 1999 he was retained by the major ski resorts in Australia to conduct reviews of their mountain safety practices and to provide seminars on safety and risk management.  Since 1997, he has been engaged as a consultant by the defendant and its insurers and solicitors from time to time in the context of litigation.

1. Mr Gow was engaged by the solicitors for the defendant in March 2002 to provide his opinion as an expert on a number of issues arising from the present action.  His opinion was that given the previous day’s temperature, the clear sky, the temperature at 9.00 am, and shade conditions at the ramp, it was likely that there was frost on the walkway and ramp at the time of the plaintiff’s fall.  His understanding was that the purpose of the walkway and ramp was to provide access to and from the bobsled, and that the bobsled operated only in summer, when frost would not be encountered.  He thus regarded the use of the path during the aftermath of the landslide at the beginning of August as out of the ordinary.  He expressed the opinion that the ramp and its gradient were proper, adequate and functional for the purposes of summer pedestrian use.  He thought that the ramp was adequate for pedestrians wearing reasonable footwear and using the handrails properly for stability.  The ramp and its surface were within normal and accepted standards for outdoor walkways designed for summer pedestrian use at resorts in Australia and internationally.  The circumstances at Thredbo immediately after the landslide were extraordinary, and the plaintiff ought to have been aware of this, and ought to have proceeded with caution and care for her own safety.

1. Mr Gow thought that pedestrians should be expected to exercise a greater degree of individual care in a winter mountain environment, where walkways, slopes and ramps might be routinely encountered in a variety of conditions including frost on the surface.  In Mr Gow’s opinion, it ought to be obvious to pedestrians in such winter conditions that they might encounter frost, ice or snow, and they should maintain a lookout for such conditions and proceed with appropriate care and caution.

1. He said that it was not the usual or accepted practice for winter resorts in Australia or internationally to provide advice to visitors to equip themselves with adequate winter clothing or footwear, or to use such clothing or footwear while walking around the resort.  He was critical of the ABC and the plaintiff for not realising that appropriate winter clothing and footwear would be necessary.  He also thought that the plaintiff’s shoulder kit bag was inadequate and inappropriate for use in a winter mountain environment.  She should have been provided with a backpack which would have left both her hands free.  If she had been, she would have been able to use both hands on the handrails of the ramp, and the accident would probably have been avoided.

1. Mr Gow went to Thredbo in April 2003 to carry out a physical inspection and to review his report in the light of corrected information.  He was informed that the bobsled operated during winter in dry conditions when its track was clear of snow.  He was also told that the walkway and ramp were used to provide regular pedestrian access between Woodridge and the Valley Terminal.  He said that neither of these pieces of information changed his overall view of the matter, or altered the opinions and conclusions set out in his original report.  He observed a number of pedestrians using the ramp, some using the handrails and others not.  His opinion was that the ramp was of a slope similar to those found in pedestrian areas at snow resorts throughout the world, all of which would be routinely covered in snow or ice.

1. He conceded in cross-examination that he was unaware of the NSW National Parks and Wildlife Service Building Code.  He was unable to comment on the coefficient of friction of an icy timber walkway with a slope of 1:4 and would defer to an engineer on such an issue.  He was unaware of any Australian standard about handrails, and disagreed that a largely circular handrail would be preferable from a safety perspective to a piece of wood roughly 19 centimetres by 5 centimetres.  He regarded the timber handrail as highly effective.

The engineering evidence

1. Both parties called expert engineering evidence.  Mr Allan Fozzard is a consulting engineer in private practice and a Fellow of the Institution of Engineers, Australia.  He qualified as an engineer at the end of 1964.  He was employed by a succession of engineering firms until 1981, when he started his own practice.  Since then he has been responsible for some thousands of building projects.  He has acted as an expert witness on numerous occasions.  He prepared three reports for the plaintiff’s solicitors, and gave oral evidence.  He conducted a site inspection in November 2000.  He measured the length of the ramp as 4310mm, its height as 1125mm, and its slope at 15.13 degrees.  The railing was 1000mm above the deck and 1040mm above the surface of the ramp.  The rail was 190mm wide and 50mm deep, and was supported by vertical timber posts, 50mm by 50mm, 1880mm apart.  There was provision for five stainless steel cables spaced 130mm apart below the railing though some of these were missing at the time of the inspection.

1. The surface of the ramp consisted of treated timber planks 100mm by 50mm, butted together.  The surface appeared to have been dressed when new, but was highly polished at the time of inspection.  Mr Fozzard’s camera, placed on the ramp, slid down the slope, accelerating.  The inspection took place between 12.00 noon and 1.00 pm on a dry and sunny day.

1. Mr Fozzard measured the slope at approximately 15 degrees or, in traditional terminology, 1 in 3.7.  He regarded this as non-compliant with the Building Code of Australia, which on his interpretation required the ramp to have a gradient not steeper than 1 in 8.  The Code, as he read it, required a ramp to comply with Australian Standard 1428.1.  AS 1428.1 provided that the maximum gradient of a ramp exceeding 1520mm in length was to be 1 in 14.  The Code also contained a specific provision applying to any building constructed in an alpine area, which required an external ramp serving as an exit to have a gradient not steeper than 1 in 12.  He expressed the opinion that the rationale for the special provisions in the Code about alpine areas was that in such areas icy and slippery conditions could be expected, making the non-alpine 1 in 8 maximum unsafe.  In any event, the slope of the ramp, 1 in 3.7, violated all of the stated regulatory criteria.

1. Mr Fozzard next dealt with the requirements for a balustrade or handrail.  AS 1428.1 required ramps to be provided with handrails.  The top rail did not qualify as a handrail.  It was at most a balustrade, though it was more than 1000mm above the ramp.  Compliance with the Code would require that a separate rail, with a maximum diameter of 50mm, be provided in addition to the balustrade at a height between 864mm and 1000mm.  In his opinion, pedestrians need to be able to obtain a grip on a solid, near-circular rail.  He explained that the kind of handrail required was illustrated in Figure 1 and Figure 9 of AS 1428.1.

1. Mr Fozzard next dealt with the surface of the walkway and ramp.  Both the Code and AS 1428.1, on his interpretation, required that the surfaces of walkways and ramps have a non-slip finish.  A surface coefficient of friction of 0.4 was specified for horizontal surfaces.  Sloping surfaces required an increased coefficient of friction.  A slope as steep as the ramp in question would require a coefficient of friction exceeding 0.75.  He said that leather on timber in clean and dry conditions has a coefficient of friction in the range 0.3 to 0.5.  The surface of the ramp and deck only just provided a coefficient of 0.4, adequate for the level deck but totally inadequate for the ramp.

1. He said that simply walking up and down the ramp in the best possible conditions, on the day of his inspection, required some level of care.  Even in the best of conditions he regarded the slope of the ramp as unsatisfactory for a public pathway providing access to and from the deck of the bobsled facility.  Its risk was exacerbated by its smooth surface.  He was also critical of the abrupt change of slope from the horizontal deck to the ramp, and said that a transition would have been preferable.  There was no alternative access.  He noted that another Australian Standard, AS 1657, directed towards industrial and maintenance applications for walkways and platforms, rather than for public access, would permit a ramp with a slope of 1 to 3.7, but the ramp would need to be provided with a cleated or grated and slip-resistant walkway surface.  Thus, he said, the bobsled ramp would not even meet the less stringent requirements of that code.

1. In April 2002, Mr Fozzard was provided with copies of the architectural plans dated June 1994 which had accompanied the development application for the construction of the bobsled and the building and deck, and also with engineering structural plans.  These did not cause him to change his previous opinion in any way.  He noted that the ramp did not comply with the plans or any particular designs.  The approval stamp affixed to each of the plans by the Kosciusko District Building Surveyor of what is now the NSW National Parks and Wildlife Service called for compliance with the relevant building code and Australian Standards current at the time of approval.  Mr Fozzard also expressed the opinion that the construction of the ramp had been governed by the Kosciusko Interim Building Code 1994, the bobsled having being a place of entertainment.  His opinion was that the external deck around the bobsled building was part of the building and an appurtenance to it.

1. In oral evidence, Mr Fozzard explained that the height of the bobsled building and ramp was 1300 metres above sea level, placing it within an alpine area (1200 metres or above, and likely to be subject to significant snowfalls) as defined in the Building Code of Australia.  Referred to the classification of buildings into ten classes in Part A3 of the Code, he placed the bobsled structure and attached ramp into class 6 (a shop or other building for the sale of goods by retail or the supply of services direct to the public).

1. Mr Fozzard then referred to the Interim NSW National Parks and Wildlife Service Building Code, dated August 1994, applicable to building activities within national parks, including the Kosciusko National Park.  The Interim Code requires such building activities to conform with, inter alia, the NPWS Building Code and the Building Code of Australia, including the NSW variations to the latter.  The Interim Code requires that all work must comply with the development and building approval conditions and the approved plans and specifications (clause 2.13c).  Clause 4.4.1 of the Interim Code states that the aim of the design standards is to ensure that all activities within the park are designed, inter alia, to ensure the wellbeing and physical safety of the public.  Clause 4.4.7 provides that all buildings including associated facilities must be conveniently accessible by the disabled, and that the requirements of the Building Code of Australia and AS 1428 are the minimum acceptable standards.  External works should be designed to ensure that people with disabilities are not unreasonably disadvantaged.  Mr Fozzard was of the opinion that the Interim Code, including the provision as to disabled access, applied to the bobsled building, deck and ramp.

1. Mr Fozzard’s evidence was that his original understanding was that the minimum gradient required for the ramp was 1 in 12, as specified in Part G4 of the Building Code of Australia, but having considered the Interim NPWS Building Code, he had changed his opinion and now was of the view that the minimum permitted gradient was 1 in 14, as provided by AS 1428.  He noted that the original architectural plans showed a ramp which appeared to be some 30 metres long, but in the event a ramp was built which was much shorter and steeper.

1. Mr Fozzard then referred to clause G 4.7 of the Building Code of Australia, dealing with construction in alpine areas.  The clause is as follows:

G 4.7 External Trafficable Structures

External stairways, ramps, access bridges or other trafficable structures must have-

(a)   a floor surface that consists of steel mesh or other suitable material if it is used as a means of egress; and

(b)   any required balustrade constructed so that its sides are not less than 75% open.

Mr Fozzard was of the view that the timber surface of the ramp was not a suitable material, though it would have been satisfactory if the ramp had been constructed with a slope of 1 in 14 or greater.

1. Mr Fozzard was asked to estimate the cost in 1994 of constructing a ramp with a slope of 1 in 14 and handrails as required by AS 1428.  He was unable to provide an estimate in 1994 dollars but said that the cost today would be less that $5,000.

1. In cross-examination, Mr Fozzard said that his wife had herself slipped on the ramp on the day of their inspection.  She was wearing shoes with polyurethane soles.  It was put to him that the shoes were unsuitable for walking in an alpine environment.  He answered that they were not walking in an alpine environment.  He agreed that the 1 in 14 gradient was essentially set for the disabled.  He accepted that there were gradients on some pathways in national parks that do not comply with the standards.  He explained that there were five different types of paths, with different requirements applying to each.  He made the point that the ramp in question is effectively attached to the bobsled building and is therefore governed by the rules that apply to the building.  The deck was the base of the building, and was a platform constructed as part of a total facility, in the same way that a veranda forms part of a house.  He was challenged on his opinion that the ramp formed an egress from the building.  It was put to him that one did not have to use the ramp to get to the building.  His response was that it was the only way to get to the building if coming from the north.

1. Mr Fozzard was shown the two pairs of boots which had been tendered during the plaintiff’s evidence.  He thought that the soles of the suede boots could be regarded as rubber, so as to have a satisfactory coefficient of friction on the ramp in dry conditions.  He was less sure of the grooved resin soles of the elastic-sided boots.  He thought that they might qualify when new but would be likely to become unsuitable once the soles became worn.

1. It was put to Mr Fozzard that there was nothing about the visual appearance of the ramp which made it appear dangerous.  He disagreed with this.  It was obvious to him from the photographs, and from his visual inspection, that the ramp was dangerously steep.

1. It was also put to him that the requirements about a ramp serving as an exit from a building related only to an exit required as a fire escape.  He disagreed with this, and said that the requirements were of general application.

1. The defendant called Mr Michael Cantali, consulting engineer, to give expert evidence.  Mr Cantali has a bachelor’s degree in engineering and a master’s degree in project management.  He is a Member of the Institution of Engineers, Australia and also a licensed builder.  He graduated in engineering in 1970.  In recent years, he has worked as regional engineer for the Clay Brick and Paver Institute.  Since 1992, he has been in private practice as a consulting engineer, with a particular interest in pavement design and construction.  He has been engaged in other matters as an expert witness on pavement design.  Mr Cantali visited the site at Thredbo at about 5.15 pm on Saturday 4 August 2001, and again at about 8.15 on the following morning.  It was very overcast and rained on that morning.  He noted the width of the ramp at about 1.33 metres between handrails.  During his inspection, the bobsled was not operating.  A number of pedestrians used the walkway and ramp in both directions.   He did not see any pedestrian show signs of any difficulty in negotiating the ramp up or down.

1. Mr Cantali’s opinion was that the ramp did not form part of the building, but was rather an integral part of the walkway.  His understanding was that the purpose of the building was to store trolleys.  He thought that the allegation on behalf of the plaintiff that the surface of the ramp was icy at 9.00 on 5 August 1997 was consistent with the conditions he observed.  He expressed the view that flat shoes, resin-soled or otherwise, were not suitable for icy conditions.  Spiked or hard-treaded shoes which physically key into the icy surface are recommended; otherwise the sole will simply aquaplane over the surface, in a similar manner to a smooth car tyre on a wet or icy road.  He said that icy surfaces have a very low to negligible coefficient of friction with any flat-soled shoe.  It is virtually impossible to get a good grip on an icy surface without keying into it.

1. Mr Cantali did not regard the ramp as an exit from the bobsled building, but rather a part of the walkway.  He took the view that AS 1428.1 applies to the design of new buildings and has no application to alpine walkways.  He also thought that the bobsled building was not a building in the true sense, but rather a well-built store for trolleys.  It had no provision for accommodating people in the normal sense of a building.  He also noted that there were no exits from the bobsled building which led directly to the ramp.  Taken to the ten classifications of buildings set out in Part A3 of the Building Code of Australia, Mr Cantali placed the bobsled building in class 10a (a non-habitable outbuilding or structure - an open garage, private garage, shed, or the like).

1. Mr Cantali thought that the balustrades were quite safe as handrails, both as to load and as to ease of gripping.  He regarded the timber surface of the ramp as good for traction, drawing attention to the coarse grain of the timber, and the fact that the slats had been laid transverse to the direction of travel.  Mr Cantali’s opinion was that the ramp was quite safe, quite acceptable, and compliant with all legal requirements at the time of its construction and at the time of the hearing.  The dirt pathway which it replaced would have been much more hazardous.

1. Mr Cantali had been able to locate a publication of the NSW National Parks and Wildlife Service, Walking Track Construction Guidelines.  The publication is undated.  It contains references to some earlier publications, the latest being 1987, but there is no other hint as to when the document was first published.  Relevantly, it includes guidelines for the design of boardwalks.  The guidelines refer to a classification of walking tracks in national parks into three categories: walk, track and route.  Routes are unconstructed and are intended for well-equipped and experienced walkers.  They should be to sturdy-boot standard.  Tracks are well defined and suitable for people of average fitness with some experience.  They should be to boot standard.  A walk is a well-constructed and surfaced path designed for high use by persons of all ages and physical condition, constructed to shoe standard; easy grades suitable for disabled use may be required, with bridges or boardwalks where necessary.  The path leading past the bobsled building is clearly a walk rather than a track or a route.  The guidelines provide for a walk to have an 8% preferred maximum gradient, with 5% for disabled use with a maximum length of 9 metres.  The guidelines refer to Platform Design Code AS 1657, and provide that where a boardwalk is more than 300mm above adjacent ground, a handrail should be provided at 900mm, and that if the slope exceeds 1 in 8, a cleated surface should be provided for additional slip resistance.  A boardwalk should be designed so as to comply where possible with the Disabled Access Code AS 1428, and to do so, should have a maximum slope of 1 in 20, or 1 in 12 for a maximum length of 9 metres between horizontal landings.  Handrails should include grips of 40 to 50mm diameter.  An illustration shows a circular handrail with the comment that the width of its support should not interfere with the sliding of the hand or firm clasp.

1. Mr Cantali was extensively cross-examined.  He conceded that he was aware that the bobsled building was used as the ticket office for the bobsled, but did not see what relevance that fact had to his opinion.  He was unsure whether he had been aware at the time he wrote his report that the building was used as a ticket office, rather than solely as a store for trolleys.  He disagreed that this might bring the building within Class 6 in Part A3 of the Building Code of Australia.  He reasoned that the purpose stated on the plans which accompanied the application for approval of the building was that of storage.  Its primary purpose was the storage of goods.  Further, members of the public purchasing tickets did not enter the building, but rather stood outside the building and purchased their tickets from a staff member on the other side of a ticket window.  Mr Cantali agreed that a freestanding kiosk for the sale of (for example) ice creams to members of the public would be a Class 6 building because its purpose would be to provide that service.  The bobsled building, however, was predominantly for storage rather than sales.

1. Mr Cantali acknowledged that at the time of his report, he had been unaware of the Interim NSW NPWS Building Code which came into effect in August 1994.  Referred to the requirement in clause 4.4.7 that all buildings including associated facilities must be conveniently accessible by the disabled, he disagreed that the ramp was an “associated facility” to the bobsled building.

1. Mr Cantali’s attention was also directed to a note to clause 2 of AS 1428.1.  To assist in understanding this, I should explain that clause 1 of AS 1428.1 states that the standard specifies minimum design requirements for elements of buildings and related facilities to permit access by people with disabilities.  Particular attention is to be given to accessways, circulation spaces and fitments.  Clause 2 states that the requirements specified in the standard are intended to permit general use of buildings and facilities by people with disabilities acting independently, or, where a person’s usual method of operation is with an assistant, in the company of that assistant.  Compliance with the standard will, in general, satisfy the requirements of the Building Code of Australia in terms of the provision of access to buildings for people with disabilities.

1. The note to which Mr Cantali’s attention was directed by counsel for the plaintiff stated that although the standard was intended to be used for the provision of access to buildings, in the absence of specific information, appropriate clauses could well be applied to external locations such as walkways and landscaped areas.  His response was a little unclear, but he appeared to be expressing the view that the note, and perhaps AS 1428.1 in its entirety, was intended to apply only to buildings and walkways specifically designed and intended for use by the disabled.  Consistently with this, he appeared to interpret the provisions about ramps in clause 5.3 of AS 1428.1, including the requirement that ramps be provided with circular handrails, as applicable solely to ramps specifically intended for the disabled.

1. Mr Cantali’s attention was directed to Part G4 of the Building Code of Australia, dealing with construction in alpine areas.  Part G4 is expressed to apply to any building constructed in an alpine area and to overrule other provisions of the code.  It provides that an external ramp serving as an exit must have a gradient not steeper than 1 in 12: clause G 4.5.  Mr Cantali agreed that the structure was built in an alpine area, but was reluctant to accept that the ramp in question was an external ramp.  He ultimately conceded that it was, but said that it was not an exit for the purposes of the clause.  His opinion was that there was no regulatory requirement placing any limit on its gradient, as long as it was safe for its intended purpose.  He was asked his opinion as to what maximum gradient would be safe for its purpose.  He thought that 1 in 3 might be acceptable and said that he would have no hesitation in putting up the ramp as it was at the time of his inspection (1 in 3.7).

1. Mr Cantali was unfamiliar with the Walking Track Construction Guidelines and had not used the publication.  He was asked about the maximum recommended gradients for walking tracks.  His understanding was that the guidelines applied to dirt tracks rather than paved tracks, and were concerned with issues such as the difficulty of pushing a wheelchair in soft soil.  He was asked to assume that he had been involved in the design and construction of the ramp, and that he had knowledge that it would be accessed by members of the public, which might include people with a disability.  On that assumption, he was asked what slope he would adopt for the ramp.  His answer was that on the hypothesis put to him, he would ensure that the ramp complied with AS 1428.1 (maximum slope 1 in 20).  He would regard himself as contractually bound to do so.

1. Re-examined on the handrail issue, Mr Cantali expressed the view that a circular metal handrail would be much less satisfactory in alpine conditions that the timber balustrade in place.  In frost or damp, he thought a metal handrail would be likely to become slippery and would provide inadequate traction.  It would make a fall more likely rather than less likely.

Damages – the plaintiff’s evidence

1. The plaintiff was born at Wollongong in New South Wales on 22 October 1970 and is 33 years of age.  She completed Year 12 there in 1988.  Having won a competition for academic achievement and public speaking, she went on an exchange programme to Germany for several months.  On her return, she successfully applied for a position as a cadet journalist at a Wollongong radio station.

1. A cadetship as a journalist usually lasted four years, but it was possible to complete it more quickly.  In the plaintiff’s case, after twelve months, she was graded as a D-grade journalist.  In 1989, during her cadetship, she won an Australian Journalists Association award, being named cadet of the year, competing against cadets in television and newspapers as well as radio.  In December 1989 she married.  In 1990, she enrolled in a Bachelor of Arts course at Wollongong University which she continued part-time until about 1994, when she still had a few subjects to complete the degree.  In January 1991, she changed jobs, and commenced with the Australian Broadcasting Corporation as a reporter.  By this time she was a C grade journalist.  The position was based at the Wollongong regional office of the ABC.  In 1992, she was promoted to news editor for the Illawarra region, with responsibility for three journalists and several casual reporters.  Her duties by this time included writing, producing, editing and presenting news bulletins.  She was also responsible for rostering and supervising the work of those below her.

1. In 1994, she moved to Sydney with ABC television documentaries.  She worked on camera as a reporter with a programme called Living in the 90s for about 12 months, and then returned to radio, working in the 2BL newsroom in Sydney.  In 1995, she went back to television as a reporter and presenter with a pay-television joint venture.  Through no fault of the plaintiff, the joint venture was unsuccessful, and in October 1995 she returned to ABC radio as a current affairs reporter based in Sydney, working on AM, PM and The World Today.  During 1996 she was nominated for a Walkley award, for a series of investigative reports on child abuse in institutional care.  In the same year she won a human rights award for radio.

1. In January 1997, she was asked by Ms Fran Kelly, then bureau chief for ABC radio current affairs in Canberra, to fill a vacancy as a senior political correspondent at the bureau.  By this time the plaintiff had proceeded beyond her previous grade C level, though her precise grading is unclear because the ABC had by then adopted a different classification system.

1. The Canberra job was based at Parliament House.  It was a position involving long hours and requiring extraordinary stamina.  During parliamentary sitting weeks the plaintiff described the pace as frenetic, running from one press conference or interview to another, and meeting inflexible deadlines with unforgiving executive producers.

1. This was the position in which the plaintiff was employed at the time of the Thredbo landslide.  She was asked to travel to Thredbo to relieve colleagues who had been down there for some days.  She travelled to Thredbo on the afternoon of Monday 4 August 1997, and stayed at the Thredbo Alpine Hotel, which the ABC was using as a base.

1. The circumstances of the plaintiff’s fall on the ramp on the walkway on the morning of 5 August have already been described.  Immediately after her fall, she described herself in evidence as being in shock.  She felt numb, with a tingling sensation in parts of her body.  She was winded.  It was about twenty minutes before she was able to stand up properly.  She had considerable pain in her back, and also pain in her right elbow which she thought she must have struck on the ramp as she fell.  The back pain was acute and was in the upper to middle part of the back.  Her lower back was also throbbing.  With the assistance of Mr Woodford, mentioned above, she walked very slowly to the site of the press conference which had by then concluded.  She stayed in Thredbo for the rest of the day, in a lot of pain and feeling very sore, but attempting to fulfil her duties.  As the day went on, the pain got worse.  She was asked why she did not seek medical attention on the day, and said that she felt she could not complain about back pain when there were still seventeen or eighteen people buried under rubble at the landslide site.

1. By the following day, Wednesday 6 August, the shock had worn off but the pain had become, if anything, worse.  She adapted her interviewing technique to fit in with her condition, and left much of the editing process to staff in Sydney because she found it too painful.  She spent some time on that day lying in her hotel room and resting.  She returned to Canberra on the following day, Thursday 7 August.  She told her producer that she could not stay in Thredbo because she was in too much pain and could not continue with her programme responsibilities.  Her evidence in chief was that the next morning, Friday 8 August, she attended her general practitioner, Dr Harlow, at Griffith in Canberra.  Dr Harlow prescribed painkillers and anti-inflammatories, and advised the plaintiff to use a heat pack and to rest.  The Friday was a rostered day off and the plaintiff was able to go home and lie down, and spend the weekend resting.  She went back to work on the following Monday for two or three days, and then took ten days leave which had been prearranged, for the purpose of moving house.  She went back to see Dr Harlow at the end of that time, and was referred for x-rays.  The x-rays revealed an anterior compression fracture of the body of the T7 vertebra.  Dr Harlow recommended that the plaintiff take some weeks off to rest.  She was advised not to sit or stand for too long, and not to carry anything.

1. Unfortunately the plaintiff’s husband was working in Malaysia at the time.  Her family and a number of friends helped with the house move, and generally looked after the plaintiff, cooking and washing up as well as moving furniture.

1. The plaintiff attempted to go back to work on 15 September, but lasted only three or four days and went off work again.  On 13 October 1997 she attempted a graduated return to work, three half-days a week.

1. The plaintiff’s husband returned from Malaysia early in October 1997.  About a month later, he was diagnosed, suddenly and unexpectedly, as suffering from non-Hodgkin’s lymphoma.  The plaintiff continued with her work part-time, and during the same period accompanied her husband to appointments with medical specialists in relation to his condition and treatment.  She took four weeks’ leave over Christmas 1997.  She and her husband went to Wollongong for Christmas.  This was her first attempt at travelling a long distance since the accident, and the plaintiff found the trip painful.  She needed to stop from time to time to get out and stretch.

1. The plaintiff and her husband had not planned to start a family at that time, but they were told that his treatment would probably cause sterility.  After obtaining advice from a neurologist, Dr Danta, as to the likely effect on her back condition, the plaintiff became pregnant, but had a miscarriage in January 1998, being admitted to Canberra Hospital overnight as a result.  She stayed off work until about the end of March 1998.  During that month, she commenced part-time work as a tutor in journalism at the University of Canberra.  This involved her in about an hour and a half per week conducting tutorials, and about three hours preparation and marking which she was able to do at home.

1. In about the middle of 1998, the plaintiff resumed her graduated return to work programme with the ABC, initially limited to one or two hours per week.  She found that computer keyboard work caused her back pain to flare up.  As an alternative, she arranged and planned a series of political discussions which ran for about fifteen minutes each Friday afternoon on the PM programme.  She gradually increased her working hours, getting up to twelve hours in the workplace and about ten hours at home each week.  She spent three half-days at the office on Mondays, Wednesdays and Fridays.  She found that prolonged sitting increased her pain, and in particular keyboard work.  Carrying her kitbag caused her increased pain also.  She felt the pain in her back and also through the chest and around the ribcage, and from time to time pain and numbness and tingling down the right arm and in the right leg.  To alleviate the pain she took medication and got into the habit of drinking a few glasses of wine in the evenings.  She said that she was often in agony when she got home from work, and could do nothing but rest.  This pattern continued until the end of 1998.  The plaintiff’s recollection was that she discontinued her University tutoring work once she resumed work at the ABC in mid-1998.

1. At the beginning of 1999, the plaintiff was told that the ABC no longer approved her working at home.  She was required to do all her work at her office.  She attempted to comply with this, but her pain increased sharply.  In March 1999, she was referred by Comcare to Dr D Billett, orthopaedic surgeon (for assessment, rather than treatment).  Dr Billett expressed some concern to the plaintiff about the stability of the fracture.  He told her that if the fracture was unstable, the body of the T6 vertebra might move forward in relation to the body of the T7 vertebra, carrying some risk of damage to the spinal cord.  He recommended further radiological investigation.  The plaintiff was concerned that she might end up paralysed.  X-rays or MRI scans were arranged which excluded this risk.  The plaintiff, in the interim, had been subjected to significant additional stress and anxiety because of the issue raised by Dr Billett.

1. I accept that the witnesses on both sides have all given what they believe to be truthful evidence, and have done their best to remember the condition of the ramp and walkway at the relevant time.  However, I do not find the evidence compelling.  The defendant’s employee witness were all accustomed to working in Thredbo during the winter.  Most had been using the walkway since it was constructed in 1994, and had continued to do so over the years since 1997.  All had used the ramp in both directions on numerous occasions.  All were aware from experience of what was appropriate footwear for the village, including the walkway and ramp.  All would be likely to remember the unusual weather conditions during the days following the landslide.  The fact that it did not rain or snow during the recovery effort was significant and something one would expect those witnesses to recall.  All of them used the ramp much earlier in the morning than the time of the plaintiff’s fall, and in the opposite direction to the plaintiff.  I cannot be satisfied on the basis of the evidence of those witnesses that the ramp was ice-free at the time of the plaintiff’s fall.

1. Much the same can be said of Mr Goodwin.  Any additional credibility which might arise from his limited experience of alpine areas is more than outweighed by the fact that he was not asked to recall the events until almost six years later.  In addition, I had a degree of discomfort about his evidence because of his unwillingness to accept even the possibility that he might be mistaken, particularly in circumstances where I am satisfied he was mistaken about one relevantly minor matter of recollection.

1. At the same time, I was left with some misgivings by the evidence of the plaintiff’s supporting witnesses.  In most cases, they were not asked to recall the events until many years later.  Their recollections may have been coloured by the fact that the events took place in a ski resort in an alpine area, with sub-zero temperatures overnight, and some snow visible on the south-facing ski runs.  I am satisfied that the ramp was unusually steep for a ramp on a pedestrian walkway, and that it had a relatively smooth surface.  I accept Mr Fozzard’s evidence that it might have been slippery, depending on the footwear worn, but I cannot be satisfied on any of the plaintiff’s supporting evidence that the ramp was covered with ice on the morning of the fall or any of the mornings during the days following the landslide.

1. The plaintiff herself is the only witness who had a good reason to recall the condition of the walkway at a much earlier time. I am mindful of the description she gave in the Comcare claim form some six weeks after the fall. It does not seem to me likely that at that time the plaintiff would have appreciated that the presence or absence of ice on the walkway was of any relevance to any entitlements she might have to compensation or damages. The Comcare claim form was for compensation as an employee of a Commonwealth instrumentality, in respect of an injury suffered in the course of her employment. Fault was irrelevant. It seems unlikely that the plaintiff had by that time directed her mind to the possibility that she might be entitled to damages at common law if she could establish that her injuries had arisen as a result of the negligence of some entity other than herself. Her solicitors did not commence the present action until 4 August 2000. She was, of course, effectively precluded from bringing an action for damages against the ABC by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), but I think it highly unlikely that she was aware of this or gave any thought to it until much later. Her description in the claim form was “slipped, fell on back while walking along icy wooden ramp”. She recorded elsewhere on the form “slippery, sloping ramp covered with ice – ice was beginning to melt.”

1. The plaintiff’s recollection of events at about the time of the fall has proved less than completely reliable in a number of respects.  Her oral evidence was that she saw Dr Harlow the day after her return from Thredbo to Canberra, that is on Friday 8 August 1997.  She also said that she had injured her right elbow when she fell.  I am satisfied that she was wrong about both of these matters.  It is clear from the notes of Dr Harlow, her general practitioner at the time, that she did not see her until Tuesday 12 August 1997, a week after the fall.  Dr Harlow also records bruising to the left elbow.  The elbow injury was a minor one and seems to have cleared up completely in a relatively short period of time but both of these matters cast some doubt on the reliability of the plaintiff’s recollection.

1. The evidence about the plaintiff’s footwear is in the same category.  Her instructions to her solicitors, when first asked for particulars about footwear, described the boots she was wearing in reasonably specific terms.  Later, after an incident at her mother’s home, she changed her instructions about the footwear.  She became quite definite that she had been wearing a particular pair of boots at the time of the fall.  It became clear from later evidence that this could not have been the case.  I do not accept the suggestion of senior counsel for the defendant that the plaintiff deliberately changed her instructions about the boots in order to improve her case, but I am left with some concern arising from the fact that she felt able to be so definite about what turned out to be the wrong boots.  She is perhaps by personality type inclined to express herself in definite terms, rather than to appear uncertain or doubtful, and to say this is not to criticise her integrity.  I am, however, left with some disquiet as to the reliability of her evidence as to her recollection of events which happened in 1997.

1. I am satisfied that the plaintiff’s fall occurred between 8.30 and perhaps 8.50 am on the morning of Tuesday 5 August 1997.  I am satisfied that there had been no snow or rain which might have left water on the walkway or ramp, and that there was inadequate moisture in the air for there to have been a frost on that morning.  At the same time, I am satisfied that the temperature was cold enough for water to have frozen on the ramp, had it got there in some other way.  I am satisfied that the snow on the slopes and the water in the Thredbo River and on the landslide site were too far away to have provided an explanation for water or ice on the ramp.  I am also satisfied that the ramp had been in use by pedestrians for three hours or more on the morning, prior to the plaintiff’s fall, and that there had been considerable traffic on it.  Whilst I cannot be satisfied on the basis of the evidence called in the defendant’s case that the ramp was dry and free from ice or frost at the time, equally I find myself unsatisfied by the evidence called in support of the plaintiff, that there was ice or frost present.  I accept that the plaintiff has done her best to give her evidence truthfully, but I am left with reservations as to the reliability of her recollection.  The question I must determine is whether I am satisfied on the balance of probabilities that at the time of the fall there was ice on the ramp.  If there was, I would have little hesitation in making the causal connection between the presence of the ice and the fall.

1. I must also take into account the incontrovertible fact that the plaintiff slipped and fell on the ramp.  I must ask myself whether there is a reasonable explanation for this having happened in the absence of ice.  The ramp was steep and its surface relatively smooth.  Other witnesses recalled having felt a sensation of insecurity when descending it.  The plaintiff’s footwear may well have had soles which, in combination with the slope and surface of the ramp, failed to provide an adequate degree of friction.  It seems to me feasible that the plaintiff could have slipped and fallen on the ramp in the absence of an icy surface.

1. The plaintiff bears the onus of establishing her case as pleaded to the satisfaction of the court on the balance of probabilities.  To do so, she must establish on the balance of probabilities that there was ice on the ramp which was a cause of her fall.  To succeed in this, she has merely to tip the balance; but I find myself unsatisfied that the platform was icy.  The plaintiff has accordingly failed to make out her case.

1. I should add that I accept that if there had been any previous falls on the ramp, the defendant was not aware of them.  No falls or injuries had been reported in any formal sense to the defendant.  No one had previously sought first aid or medical treatment in the village as a result of a fall on the ramp.  Indeed, the plaintiff did not do so herself, and the defendant was unaware of the fall until served with process in the action.  I also accept that there had been no falls reported to the defendant subsequent to the plaintiff’s fall, by the time of the hearing of the action.  This is not to say that people may not have lost their footing, stumbled, slipped or even fallen on the ramp from time to time: some of the plaintiff’s supporting witnesses gave credible evidence of having done so themselves.  They made no formal report of these incidents, which I find unsurprising.  This is thus not a case where the defendant had knowledge of the danger posed by the ramp because of similar previous incidents.

Contributory negligence

1. Had I found that the plaintiff’s fall had been caused by ice on the ramp, I would not have found her guilty of contributory negligence.  I reject the proposition arising from Mr Gow’s evidence that it was contributory negligence for her to walk from one part of Thredbo village to another carrying a bag with a shoulder strap, rather than wearing a backpack.  I reject the argument that she should have made use of the balustrades to prevent herself from falling.  Her evidence was that she had one hand on the balustrade as she slipped, and that by the time it occurred to her to grasp the balustrade, she was already flying through the air.  The defendant failed to establish that the plaintiff was wearing inappropriate footwear.  Indeed, it seems to me that footwear with a non-porous synthetic sole would have been adequate anywhere on the path, and probably anywhere in the village, except on the ramp in question.  It was not suggested that the defendant provided any warning or advice to visitors about footwear, or recommended any particular type or quality of sole.  None of the particulars of contributory negligence are made out.

Damages – provisional assessment

1. Although I am not satisfied that the plaintiff’s case has been made out, it is appropriate that I assess the damages which I would have awarded had she succeeded.  The plaintiff has a right of appeal against my decision, and the parties would be put to unjustifiable further expense and inconvenience if the plaintiff were successful on appeal and the evidence in relation to damages had to be taken again.  Hence I embark upon the assessment of damages.

1. I accept that the plaintiff is an honest and truthful person, and that she did her best to give accurate evidence.  As I have mentioned, I have some reservations about the reliability of her recollection about the events of August 1997.  I have also mentioned that the plaintiff expresses herself with conviction, and does not present as a person who is a prey to indecision or self-doubt.  In giving her evidence, she had a tendency to melodrama and to answering questions at considerable length, sometimes going beyond a response to the question asked.  She was argumentative from time to time during cross-examination.  She is clearly highly intelligent: she gave the impression in some answers of attempting to gauge where the course of the cross-examination was directed, and to deal with questions that had not yet been asked.  These are not matters which necessarily reflect adversely on her credibility, but they are impressions I must take into account in evaluating her evidence.

1. I generally accept that the plaintiff has suffered since 1997 from constant pain, varying between moderate and severe, in the thoracic area of her back.  I accept that she has suffered from pain in the lumbar area also.  I accept Dr Billett’s evidence that she probably suffered an injury of the lower lumbar region which led to nerve root irritation causing symptoms to the right side of the lumbar spine.  I also accept Dr Billett’s opinion that the plaintiff suffered a soft-tissue injury to the cervical spine in the fall.  I accept Dr Billett’s evidence that the plaintiff has developed degenerative arthritic changes above and below T7 which have been causative of continuing pain, and that this is likely to get worse rather than better in future years.

1. I accept the evidence of Dr McGrath that the plaintiff probably suffered damage to structures surrounding the T7 vertebra, which has not been diagnostically detected.  Dr McGrath’s evidence was that such damage heals much more slowly than a bone fracture, but is likely to resolve slowly over time.  I prefer the evidence of the treating practitioners, Dr Douglas, Dr McGrath and Mr Sutton generally to that of the specialists who saw the plaintiff only for the purpose of specific opinions to Comcare.  I found a piece of evidence from one of the Comcare doctors helpful: Dr Dewey, who has seen many patients over the years with T7 flexion fractures, explained that often the patient did not realise the extent of the injury initially, and that the symptoms often worsened in the ensuing two or three weeks.  This would be consistent with the plaintiff being able to continue working in Thredbo for a day or so, and with her not seeking medical treatment until a week after the fall.

1. It follows that I find that to the extent that the plaintiff is suffering from chronic pain dysfunction syndrome, the pain is physically caused.  I reject the opinion of the orthopaedic surgeons whose view can be summarised as saying that the only significant physical injury was the T7 fracture; that the fracture has healed; and that the continuing complaints must therefore be psychologically based.

1. I accept that the physical symptoms prevented the plaintiff from working for the hours, and with the intensity, which she had been able to manage before the accident, and that the pain and physical symptoms were the major cause of her depression.  Whilst the depression was exacerbated by her husband’s illness and her miscarriage, I am not satisfied that these events, which would have happened regardless of the plaintiff’s injury, would have caused her depression or other psychological symptoms in its absence.  I accept Dr Stern’s opinion that the depression resulted in increased perception of the physical pain.  I accept Dr Swift’s opinion that the plaintiff’s dysthymic disorder is likely to persist to some degree for as long as her chronic pain persists, but that it is capable of improvement if she finds enjoyable and rewarding work.

1. Dr Knox’s initial opinion was that the plaintiff’s impairment was predominantly physical, and that her depressed mood disorder comprised about 10 percent of her total impairment.  He attributed the mood disorder as to 80 percent to her pain, and 20 percent to her husband’s illness and infertility and her miscarriage.  His later opinions were of less assistance because they were based on the assumption that the T7 fracture and accompanying soft-tissue injuries had recovered within a matter of months.  Despite this, Dr Knox did not think that the plaintiff would have become psychologically unwell without her physical injury.  He expects that her stress will be considerably reduced once the legal and compensation processes are over.  He thinks that her depression and anxiety will reduce gradually over time, though not recover completely, particularly if her pain continues indefinitely.

1. The plaintiff has now suffered from chronic pain in the back for seven years.  She had pain and restriction in the neck for some time, and despite Dr Billett’s opinion, I attribute this to the fall.  There is no suggestion that she had any neck symptoms before the fall, or that she would have developed any by now in the absence of the fall.  I suspect that Dr Billett’s contrary view reflects a difference between the legal and medical concepts of causation.

1. I have no doubt that much of the pain over the years has been caused by damage to structures surrounding the T7 vertebra, in accordance with Dr McGrath’s opinion.  I must accept his view that those symptoms will diminish over time as the structures slowly heal.  At the same time, as Dr Billett explained, degenerative changes have occurred in the discs above and below the T7 vertebra, and arthritic changes will develop involving the vertebrae.  These are likely to be productive of pain in the region permanently, and the pain, in Dr Billett’s opinion, is likely to get worse.

1. I reject any suggestion that the plaintiff is suffering from compensation neurosis, and that she is likely to make a full recovery once this case is behind her.  At the same time, I acknowledge that the case has been a considerable source of stress to the plaintiff, and that some improvement is likely once it is over.  Fortunately she will retain her entitlement to Comcare in the future.

1. In addition to her chronic pain and her anxiety and depression, the plaintiff’s damages must reflect the loss of her chosen career.  She had done exceptionally well for a young radio and television journalist.  She was only twenty-six at the time of the accident, after which she never really got back to the level of work she had been doing before.  I accept that the loss of her career as an ABC journalist has been devastating for her, and must have been a contributing factor to her depression and other psychological problems.  It is entirely a consequence of the fall.  The quality of the plaintiff’s life has changed beyond recognition.  It seems to me that an appropriate figure to compensate her by way of general damages for pain and suffering and loss of enjoyment of life is $100,000.  It is seven years since the injury, and statistically the plaintiff has some fifty years of life ahead of her.  It seems to me appropriate to apportion the damages as to $40,000 for the past and $60,000 for the future.  It is acknowledged on the plaintiff’s behalf that she has received from Comcare a lump sum amount calculated according to a statutory formula of a little in excess of $40,000, and that in those circumstances the Court should not make any allowance for interest on the past component of the general damages.

1. The plaintiff’s out-of-pocket expenses consequent upon the injuries she suffered in the fall have been met by Comcare.  There were two Comcare schedules of payments in evidence, dated 28 April 2003 and 28 July 2003.  The total of treatment expenses in the earlier schedule was $83,530.64, plus travel expenses of $8,572.24.  By the date of the later schedule, medical expenses had increased to $85,512.94.  There had been no change in the travel expenses.  At the time of the earlier schedule, Comcare were holding accounts from Mr Sutton in the sum of $332 which had not yet been accepted for payment or paid.  By the time of the second schedule, the unpaid accounts held by Comcare amounted to $1,684.94, including the amounts invoiced by Mr Sutton.  Most of the balance was for car travel claims, with small amounts for home help and chemist expenses.

1. I am satisfied on the evidence that all of the accounts paid by Comcare represent expenses properly incurred by the plaintiff in respect of the consequences of her injury.  I think I can reasonably infer from the fact that the plaintiff’s expenses had increased over the 3-month period by some $3,350 that her outgoings are continuing at the rate of some $13,000 per annum.  I recognise that this includes home help and gardening, which has been provided commercially, rather than gratuitously by family members.  I allow $105,000 to cover past medical and other treatment expenses, travel, and home and gardening assistance.  Because these expenses have all been paid by Comcare, I make no allowance for interest.

1. The plaintiff has not, for some time, required expensive medical treatment, but she needs to see her general practitioner from time to time.  She requires both prescribed and over-the-counter medication, and she will need psychological counselling in the short to medium term.  Rather than conducting a mathematical exercise, it seems to me that the assessment of an amount to compensate the plaintiff for future treatment expenses calls for the exercise of a broad discretion.  I propose to allow $25,000, which includes an allowance for the cost of travel to and from her treatment providers.

1. She will have a continuing need for assistance in the house and garden.  Thus far, her husband’s condition has precluded him from providing much of this help, and it has been necessary to engage commercial providers.  Dr Douglas is optimistic that the husband’s condition will improve, enabling him to attend to more of the tasks around the house.  This does not necessarily lead to any reduction in the damages recoverable, bearing in mind that it is the plaintiff’s need for the services which gives rise to the entitlement for compensation, and the measure should be the same whether the services are provided gratuitously or at a cost.  As against this, I remind myself that it is only those services required as a result of the plaintiff’s injuries which are compensable, not any additional services which might be required because of the husband’s medical condition.  Again, a mathematical approach is not appropriate.  It appears to me that an appropriate sum to compensate the plaintiff for her need for domestic services for the future is $40,000.

1. This brings me to loss of earning capacity.  There was in evidence a set of figures prepared by Bandle McAneney and Co, Chartered Accountants, calculated up to 28 April 2003, showing the amount the plaintiff would be likely to have earned had she remained with the ABC before and after tax, and the amounts she had actually earned with the ABC and the University of Canberra.  The figures separately show the amounts received by the plaintiff from Comcare, also before and after tax.  The basis of the figures, although not admitted, was not seriously in contest.  The figures assume that the plaintiff would have been earning $61,390 gross with the ABC in 1998, increasing to $73,995 per annum by 2002.  On these assumptions, the plaintiff would have earned $278,163 after tax from 1 July 1997 until 28 April 2003 had she remained at the ABC.  In fact she earned $57,384 net during the period.  The actual earnings fluctuated considerably; I suspect that the plaintiff may have been somewhat over-compensated when working with the ABC, and under-compensated with the University of Canberra.  I would allow the difference up to 30 April 2003 of approximately $220,000.  I would allow an additional $45,000 for the period from 28 April 2003 to date.

1. Up to 28 July 2003, the plaintiff had received incapacity payments of $287,482.38 gross.  The tax deducted from this amount by Comcare and remitted to the Australian Tax Office was approximately $80,000.  It appears from this that the plaintiff’s losses were broadly covered by the gross Comcare payments, so that she was actually out of pocket by an amount roughly equivalent to the tax.  She is entitled to interest at commercial rates on the actual loss.  The interest rates to be applied, pursuant to Practice Direction No 2 of 2001, are 10 percent up to 30 April 2001 and 9 percent thereafter.  I allow $10,000 for interest on past loss of earnings.

1. The plaintiff would be obliged to refund to Comcare the gross sum it has paid by way of incapacity payments, although she has received only the net amounts, the balance having being deducted by way of tax.  She would be entitled to recover as part of her damages the tax thus deducted, which I allow in the sum of $95,000.

1. In assessing an amount for loss of earning capacity for the future, I accept on the medical evidence that the plaintiff is presently able to manage 50 percent of a full load in her academic role.  It is likely that she may be able to increase this over time to 75 percent of a full load.  I must also accept that being unable to manage a full load, her employment options are and will remain greatly reduced.  That fact that she can work 50 percent of a full load, and perhaps up to 75 percent, does not mean that she can look forward to earning 50 percent of what she could have earned at the ABC if not for her injuries, let alone 75 percent.  Counsel for the plaintiff put forward figures justifying an award for future loss of earning capacity of almost $460,000, but I think that this was predicated on unrealistically pessimistic prospects for the plaintiff’s future.  I would allow $350,000.

1. There is also a claim for loss of superannuation benefits.  Based on the allowances for loss of earning capacity, I would award $3,500 under this head for the past, plus interest of $1,000; and $30,000 for the future.

1. The individual components of the award are:

General damages $100,000.00

Medical and other treatment expenses, travel

and home and gardening assistance (past) $105,000.00

Treatment expenses (future) $25,000.00

Domestic services (future) $40,000.00

Loss of earnings (past) $265,000.00

Interest on past loss of earnings $10,000.00

Tax on Comcare payments $95,000.00

Loss of earnings (future) $350,000.00

Loss of superannuation benefits (past) $3,500.00

Interest on loss of past superannuation benefits $1,000.00

Loss of superannuation benefits (future) $30,000.00

Total $1,024,500.00

1. It appears to me on reflection that the total is properly proportionate to the losses suffered by the plaintiff as a consequence of her injuries.  Had I found in her favour, I would have awarded damages of that amount.

Conclusion

1. The plaintiff having failed to establish her case on the balance of probabilities, there must be judgment for the defendant.  The normal order as to costs would be that the plaintiff pay the defendant’s costs.  I shall provide the parties with an opportunity to make submissions should there be an application for some different order.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 23 June 2004

Counsel for the plaintiffs:  Mr R L Crowe SC
  Mr S R Hausfeld

Solicitor for the plaintiffs:  Pamela Coward and Associates

Counsel for the defendant:  Mr B J Salmon QC
  Mr P A Walker

Solicitor for the defendant:  Connery and Partners

Date of hearing: 28, 29, 30 April, 1 May, 21, 22, 23, 24, 25, 28, 29, 30 July 2003

Written submissions completed: 9 September 2003

Date of judgment:  23 June 2004