Kent v City of Darwin - [2018] NTSC 3

CITATION:Kent v City of Darwin [2018] NTSC 3
PARTIES:KENT, Brian Thomas

v
CITY OF DARWIN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:80 of 2015 (21545391)
DELIVERED:  17 January 2018
HEARING DATES:  3 to 6 October, 4 November, 29 and 30 November 2016
JUDGMENT OF:  BARR J
CATCHWORDS:

NEGLIGENCE – Duty of care – Reasonably foreseeable risk of injury –reasonably practicable response to risk – Breach of duty – Defendant failed to eliminate risk of entrapment of plaintiff’s bike in native vines at side of cycle path – Defendant in breach of duty of care to plaintiff cyclist
CONTRIBUTORY NEGLIGENCE – Plaintiff failed to stop or reduce speed in response to danger of approaching child cyclist – Child riding unsteadily – Plaintiff’s speed excessive in the circumstances – Speed contributed significantly to accident and injury – Plaintiff failed to take reasonable precautions which he should and could easily have taken – reduction in damages of 30% assessed as ‘just and equitable’
Law Reform (Miscellaneous Provisions) Act (NT), s 16(1)(b)
Personal Injuries (Liabilities and Damages) Act (NT), s 18, s 20, s 23, s 26, s 27, s 29
Insurance Commissioner v Joyce (1948) 77 CLR 39; Wyong Shire Council v Shirt (1980) 146 CLR 40; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Brodie v Singleton Shire Council (2001) 206 CLR 512; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Vairy v Wyong Shire Council (2005) 223 CLR 422; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, followed
Nance v British Colombia Electric Ry Co Ltd [1951] AC 601; Preti v Sahara Tours Pty Ltd and Parks and Wildlife Commission (2008) 22 NTLR 215, referred to
REPRESENTATION:
Counsel:
Plaintiff:B O’Loughlin
Defendant:D McConnel
Solicitors:
Plaintiff:De Silva Hebron
Defendant:HWL Ebsworth Lawyers
Judgment category classification:   B
Judgment ID Number:  Bar1801
Number of pages:  57

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Kent v City of Darwin [2018] NTSC 3

No. 85 of 2015 (21545391)
BETWEEN:

BRIAN THOMAS KENT

Plaintiff

AND:

CITY OF DARWIN

Defendant

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 17 January 2018)
Introduction

The plaintiff claims damages for the defendant’s negligence arising from an incident (“the accident”) on the East Point Reserve cycle path, on or about 30 September 2012, in which the plaintiff fell from his bike and suffered serious injuries.
The plaintiff alleges that the defendant breached the duty of care owed to him by failing to trim a vine which had grown through a cyclone mesh fence bordering the cycle path, and in which the plaintiff’s bicycle became entangled after he had been distracted by oncoming riders. The plaintiff’s claim is restricted to the one alleged particular of negligence: that the defendant failed to prune the vine on the cyclone fence to stop the vine encroaching on the bike path.[1] The plaintiff does not, for example, allege a breach of duty of care by the defendant in respect of the siting of the cycle path in close proximity to the fence or the siting of the fence in close proximity to the cycle path.
In relation to causation, it is alleged in paragraph 5(g) of the Statement of Claim that the vine caused the handlebars of the plaintiff’s bicycle to twist suddenly to the left, which in turn caused the plaintiff to be projected over the front of the bicycle landing heavily on the surface of the bike path.
The plaintiff suffered a fracture of the right hip in the region of a previous hip replacement, and abrasions and other damage to the right shoulder and left elbow. After undergoing surgery to the hip following the accident, he suffered post-operative infection which then required a prolonged hospital stay and further surgery.
In its Defence, the defendant pleads that its duty was “to take all reasonable care to keep the [East Point] Reserve as reasonably safe for people using the Reserve and bike path as reasonably practicable in all of the circumstances”. The defendant acknowledges that such duty “would include the pruning of plants in the Reserve and maintenance of the bike path reasonably required of a Public Authority”.[2]
The defendant pleads that it complied with its admitted duty of care at all times.[3] The defendant further pleads that, if the plaintiff’s accident occurred as alleged (which is not admitted), it did not arise from a failure of the defendant to comply with its duty of care.[4] The defendant alleges that the incident occurred solely as a result of the negligence of the plaintiff. More specifically, the defendant alleges that the plaintiff failed to keep a proper lookout; failed to exercise proper control over his bicycle; rode his bicycle at an excessive speed in the circumstances; failed to apply the brakes of his bicycle; failed to stop, slow, swerve or otherwise manoeuvre his bicycle to avoid the [accident], and rode his bicycle without due care or attention. The defendant also alleges that the plaintiff rode his bicycle very close to the fencing adjoining the bicycle track in circumstances where it ought to have been obvious to him that the handlebars of his bicycle could collide with the fencing and with any vines protruding through or overhanging the fencing.[5]
In the alternative, the defendant relies on the same particulars of negligence as particulars of contributory negligence.[6]
The accident
The accident in which the plaintiff was injured occurred at approximately 10.00 am, Sunday, 30 September 2012.
The plaintiff and his friend, Daniel Mouton, were engaged in a recreational ride around East Point Reserve, riding their bikes side-by-side, in a westerly direction. They were travelling at approximately 20 km/h.[7] The plaintiff was riding in the left-hand lane (the correct lane) and Mouton beside him in the right hand lane (incorrect lane). At a point before reaching the light pole shown in photograph CB 25,[8] the plaintiff looked ahead along the cycle path, and saw a family of three, two adults and a girl aged 6 to 8 years, riding towards him. The plaintiff observed that the young girl was “a bit unstable [in her manner of riding] and moving around on her bike”.[9] When he first saw the family group approaching, they were approximately 100 metres ahead, at a point beyond the gates shown in photograph CB 34.[10]
In response to the presence of the oncoming cyclists, whether instinctively or as a result of some communication from the plaintiff, Mouton moved ahead of the plaintiff and then crossed into the left hand lane in front of the plaintiff. Mr Mouton said that his rear wheel was clear of the front of the plaintiff’s bike by one to two metres when he cut back in.[11] Mr Mouton said that, having crossed into the left hand lane, he did not accelerate away from the plaintiff but rather “fell back”, presumably so as to be travelling at the same speed as the plaintiff. The plaintiff originally deposed that Mr Mouton was 10 metres ahead of him, but corrected that to a distance closer to six metres in front.[12] The latter estimate may be correct. The separation between the two riders may have been less than six metres. In my assessment, however, Mr Mouton’s manoeuvre (which ended when he “fell back”, travelling in front of the plaintiff’s bicycle) was a distraction and must have restricted the plaintiff’s forward vision, particularly at the time Mr Mouton crossed the centre line of the cycle path as he moved into the correct outbound lane.
The plaintiff, in evidence in chief, did not acknowledge any distraction or restriction of forward view, even though his amended statement of claim alleged that “[t]he plaintiff’s friend had moved in front of him and this restricted his view”.[13] The plaintiff said that, as Mr Mouton moved in front of him, “I would have been concentrating on these three people riding … coming down the hill.”[14] When his amended pleading was drawn to his attention in the course of cross examination, he acknowledged that his forward view had been obscured, but “some distance back”.
In response to the oncoming family group, the plaintiff moved to the left of his lane as a precaution in case the bicycle of the oncoming girl rider crossed the centre line into the plaintiff’s lane. In his affidavit of evidence in chief,[15] the plaintiff described how Mouton had accelerated and pulled in front of him, and then deposed as follows:
Conscious of the child approaching, I moved to the left of the lane in which I was travelling in so as to give both the other riders and myself sufficient distance to pass safely.
As I moved to the left of the path and I looked ahead I could then see green leaves which had protruded through the cyclone fence. I do not think I had time to react and stop the bike as the leaves were not far from me when I saw them. I thought I would have to brush those leaves to avoid contact with the other riders. I thought it would be okay if I brushed those leaves as they would not impede my progress. I guess I thought the leaves were on a bush. …
In his evidence at trial, the plaintiff described the immediate pre-accident situation in which the child had just passed him and the two parents were approaching. He was concentrating on them, to ensure that he gave them clearance. He noticed “a whole lot of leaves” ahead of him which he assumed were “branches protruding out through the fence”.[16] He said he had to make a decision under pressure:
… so I was sitting up on top of the bike, looking down on those … looking down and all I saw were leaves. So I had a split second to decide. Well, I couldn’t pull out because I would have had hit the other people, so I had no time to stop and at the time I thought if I brush through these leaves, there will be no deterrent to my progress.
What did you decide to do? --- Brush the leaves.
In cross examination, the plaintiff said that the decision to brush the leaves was made “probably within a metre of that piece of vine sticking through the fence”.[17] When asked if he had a clear view of any vegetation on the path as he approached the point at which the accident occurred, he replied:[18]
I wouldn’t have been looking for it. I was concentrating on the people coming down. It’s not something that you look at when you’re riding. The bike path is supposed to be clear. I wouldn’t have been … even looking at that. … I’d be looking at the people driving down the path, to see if we’ve got enough clearance.
As mentioned in [9] above, the plaintiff saw the family of two parents and the little girl rider when they were approximately 100 metres ahead. He was travelling at a speed of approximately 20 km/h, and was thus advancing at 5.6 metres per second.[19] Notwithstanding his concern that the approaching young girl rider was unstable or unsteady, and that she might cross into his lane of the bike path, the plaintiff did not stop or slow down to make the situation safer, not even to facilitate or accommodate Mr Mouton’s overtaking manoeuvre. The plaintiff’s insistence (in the passage extracted at [13] above), that he had to make a split second decision under pressure,[20] might be correct, but such pressure arose in large part because he had not slowed at the earlier time, when he first perceived the risk of the oncoming child, nor at the slightly later time (later by some seconds) when Mr Mouton overtook him and in doing so blocked or restricted his view.
I am satisfied that the plaintiff did not slow down at the earlier time when he first perceived the risk and became apprehensive about the approaching family group; and that he failed to slow down at any time up to when the oncoming family group reached and passed him. In cross examination, it was put to him at that he could have slowed down at any time, to which he replied, “Didn’t see the point in doing it. It was at that stage there was no restriction on the bike path.”[21]
The plaintiff’s evidence also indicates that he was not keeping a proper lookout. The following passage of cross examination is illustrative:[22]
Well I suggest to you that in fact you could see the vine from about the same time that you could see the oncoming riders?---Wouldn’t have been looking at the fence, would have been concentrating on the riders. Wouldn’t have seen it in perspective. It just blends in as part of the fence.
You knew there was a fence there along that side of the path though, didn’t you?---There was a fence at that time, yes.
There was a fence even before the entry to Pee Wee’s, wasn’t there? ---On and off up along that area, yes.
And that fence goes right up to the edge of the bike path in the same way that it does at the accident scene, doesn’t it? ---Yes.
And so you’re conscious of the fence on your left? ---Yes.
And you say though that you could see the fence and the oncoming riders but not the vine? --- I didn’t say anything about the fence, I saw the riders.
All right. And what I’m suggesting to you is that you could have seen the vine if you were keeping a proper lookout, couldn’t you? ---No. I don’t accept that at all.
The plaintiff’s use of the past conditional (“wouldn’t have been looking at the fence”, “would have been concentrating on the riders” and “wouldn’t have seen it in perspective”) indicated that he was re-constructing events in giving his evidence. It is likely that he used that form of expression to convey his belief as to what he probably did or did not do. I interpret his evidence to mean that, although conscious of the presence of the fence, he did not look at the fence, from the time he first saw the approaching family group up to a time just before the accident, and thus he did not see the vine. He reasoned further that, even if he had looked at the fence, he would not have seen the vine, given (1) his perspective and (2) that the vine blended in as part of the fence.
I have difficulty in accepting the plaintiff’s evidence in relation to the hypothetical he set himself. The presence of the vines at the scene of the accident was very obvious in the photos, even from the perspective of a person approaching the vines and viewing them ‘end on’, and even if some allowance were made for the fact that the photos were taken after the accident, when the vines had probably become more ‘bushy’. There is little doubt that the plaintiff would have seen the vines if he had been looking to the front and keeping a proper lookout. He had a clear line of sight ahead, ongoing from a point about 50 metres away from the accident scene. There is evidence that, if a rider had detected the hazard of the vines from approximately 25 - 35 metres away, a rider would then have been able to stop.[23] I accept that evidence. However, that does not necessarily mean that the plaintiff’s failure to detect the presence of the vines, by keeping a proper look out, was a material cause of the accident. Even if the plaintiff had seen the vines well ahead, he was probably not in a position to make an accurate assessment of the particular risk which the vines posed, for reasons explained below.
Evidence in relation to the vines
The leaves which the plaintiff said he decided to “brush”, believing they would not obstruct his progress, were the leaves of the rainforest vine Flagellaria indica, strands of which were growing through and over the top of a chain mesh fence approximately 1,370 mm high. The fence was set back approximately 400 mm from the edge of the bitumen cycle path. The outbound lane of the cycle path was 1,200 mm wide. On the plaintiff’s case, the vine protruded 800 mm out from the fence and 400 mm into the outbound lane of the cycle path.[24]
Given the single particular of negligence, that the defendant failed to prune the vine on the fence to stop the vine encroaching onto the bike path, the extent of encroachment was an issue at trial. The plaintiff here relied on photographs of the scene of the accident taken by Mr Mouton. In his affidavit of evidence in chief,[25] the plaintiff referred to 23 photographs taken by Mr Mouton, which the plaintiff thought at the time of swearing his affidavit had been taken on 4 October 2012, that is, four days after the accident. The plaintiff deposed that the photographs (he mentioned three in particular) showed “what the vine looked like when I finally saw it after my crash”. On the basis of that understanding, the plaintiff stated his estimate of the extent of the encroachment or intrusion, derived from the photographs.[26] This was clearly an exercise in reconstruction on his part, and I consider that the plaintiff’s evidence in this respect was unreliable, because of (1) his mistaken reliance on the photographs, and (2) his defective memory.
The first matter of concern in relation to the photographs is the standpoint or position of the photographer. Whether one looks in an easterly direction along the cycle path (back towards Darwin) or in a westerly direction along the cycle path (towards East Point), it is apparent that the closer the photographer moves to the side of the cycle path where the relevant vines are situated, the greater the impression of overhang or encroachment by the vines onto the cycleway. This effect is demonstrated in the photographs at Court Book pages 24, 26, 27 and 30, and especially at pages 31, 38, and 45.
A derivative concern is the extent to which the photographs accurately depict the density of the vines and the length of the fence colonized by the vines. This is an issue of depth perception, affected by parallax error.[27] The photographs at Court Book pages 26, 30, 31, 38, 40 and 45 appear to significantly increase the density of the vines. Those photographs may be tellingly compared with the photographs at pages 32, 39, 43 and 44. In particular, the photograph at page 32 shows the vines from a ‘side on’ perspective. I consider that the last four mentioned photographs more accurately depict both the density of the vines and the length of fence along which or through which the vines protruded.
In my opinion, the following photographs provide a balanced representation of the scene of the accident: photographs at Court Book pages 23, 25, 28, 29, 32, 34, 35, 36, 39, 43 and 44. My assessment of ‘balanced representations’ is, of course, at the date the photographs were taken.
A further and important concern is that the photographs had not been taken four days after the accident, but five weeks after the accident, on 5 November 2012. In the intervening period, there had been a significant amount of early wet season growth of the vine, 30 - 50 centimetres approximately. The extent of vine growth between the date of the accident and the date on which the photographs were taken can be ascertained by reference to the copies of the photographs taken from Court Book pages 35 and 36 marked by Scott McDonald, expert horticulturalist, in which he marked areas of new growth (as assessed by him) over the five-week period.[28] Similar areas of new growth were identified by Roger Matthews,[29] former Council Parks Section team leader, and Anita Meadows, horticulturalist.[30]
The extent of new growth identified by these witnesses has led me to treat the plaintiff’s evidence with caution. I have concluded that the plaintiff was misled into asserting that the photographs accurately depicted the state of the vines at the time of the accident as a result of his mistaken belief as to the date on which the photographs were taken. Although the plaintiff asserted in evidence at trial (consistent with his affidavit evidence) that his memory of the “general shape and dimension” of the vine at the scene of the accident was “much the same” as in the photographs,[31] I do not think that he was telling a deliberate untruth. Rather, he had it fixed firmly in his mind that the photographs reflected the state of the vines at the date of the accident. It is probable that any visual memory the plaintiff had of the vines from the time of the accident had been erased and replaced by the photographic images. Otherwise, he would have made some mention of the difference in the state of the vines in his affidavit of 15 February 2016. I note further in this context that, in the pre-commencement letter dated 23 February 2015,[32] the plaintiff’s solicitors asserted that the 23 photographs enclosed with the letter represented the state of the bike path as at 4 October 2012.

I accept the evidence of Scott McDonald, Roger Matthews and Anita Meadows, referred to in [25]. The evidence of those witnesses provides a composite picture of robust new vine growth in the five-week period post-accident. The new growth evidence is logically consistent with the arrival of early wet season rains causing the spurt in new growth identified by the experts.[33]
On the basis of my acceptance of the ‘new growth’ evidence, I am not satisfied on the balance of probabilities that, at the date of the accident, any part the vines protruded into or over the outbound lane of the cycle path. I do not accept the plaintiff’s evidence[34] (including the evidence of the plaintiff’s drawing, exhibit ‘BTK1’) that the vines materially protruded some 400 mm into the outbound lane of the cycle path. For the same reason, I do not accept the evidence of Mr Mouton that the state of the vines, viewed by him in the short period immediately after the accident, was the same as shown in the 23 colour photographs taken on 5 November 2012.[35] While it is possible that a tendril or two might have crossed the ‘line of bitumen’, depending on the wind conditions, most if not all of the vine vegetation situated at or in close proximity to the scene of the accident was in the area between the bitumen and the fence.
Counsel for the plaintiff submitted that John Jamieson, the forensic engineer called as an expert in the plaintiff’s case, had been provided with “some of the 23 photographs” and that “in his report he agreed and expressed his opinion that the vine was encroaching approximately 400mm over the path”. However, that is not correct. Mr Jamieson made no assessment, based on the photos, of the extent of encroachment. He simply adopted the plaintiff’s evidence as to “the extent of intrusion of the plantings” shown in exhibit ‘BTK1’, saying “These dimensions were assumed to be correct, subject to information to the contrary”.[36] Counsel for the plaintiff also submitted that Chris Hall, the forensic engineer called as an expert in the defendant’s case, agreed (with Mr Jamieson). However, that also is not correct. Mr Hall did not even agree with the opinion wrongly attributed to Mr Jamieson. While it is correct that Mr Hall accepted the plaintiff’s evidence (from exhibit ‘BTK1’) that there was a distance of 400 mm between the fence line and the path,[37] he said that it was “difficult to accurately assess the over-hang” from the photographs”. Mr Hall’s opinion was that “it was likely that the foliage extended no further than 200 mm over the path (if at all) at the handle bar height”.[38] I understand that to mean that he assessed the extent of intrusion or overhang as being in the range nil to 200 mm. However, Mr Hall’s opinion was based on his assessment of photographs taken five weeks after the accident, not “shortly after”, as he had been led to assume.
On analysis, therefore, the evidence of the expert engineers does not affect the conclusions set out in [28] above.
I mention finally the possibility that the impact or contact between the plaintiff’s bicycle and the vine or vines in which the plaintiff’s bike became entangled caused the vines to be dislodged and end up in a different position to that in which they were prior to the incident.[39] However, the extent of any such effect cannot be reliably assessed on the evidence (photographs taken five weeks after the accident), and I have not found it useful to speculate.
I turn to examine the circumstances and causes of the accident.
The cause of the accident
The point at which the plaintiff’s handlebars struck the vine can be ascertained from the photograph at Court Book page 32, being the point on the cycleway between the head of the ‘symbol man’ and the base of the arrow shaft.[40] The photographs at Court Book pages 30, 41 and 42 are also relevant. The fence ‘segments’, that is, the length of fence between the horizontal uprights in the chain mesh fence, are approximately 4 m in length.
I accept the plaintiff’s evidence that, instead of brushing the leaves and passing through and beyond, the plaintiff’s left handlebar caught or was caught by a segment of Flagellaria vine. I accept the plaintiff’s evidence that his handlebars got ripped out of his hands and that his bicycle (or the front wheel of his bicycle) was pulled violently to the left, in towards the fence, causing the plaintiff to be propelled over the handlebars.
A sample of the Flagellaria vine was tendered by the plaintiff’s counsel without objection.[41] Not only did it feel strong; expert evidence was given as to its tensile strength,[42] and its rampant climbing tendencies.[43] It is easy to understand that the vine could have grown and anchored itself to the chain mesh fence. It is also easy to understand how segments of the vine may have grown through the fence, and protruded into the area between the fence and the cycle path, at various heights above ground level. The photos demonstrate this clearly. It is more difficult to understand how an end or ends of the vine could then have snagged the left handlebar of the plaintiff’s bike. One might well expect that the end or ends of the vine would not have been able to firmly attach to any part of the plaintiff’s bike or (if they did attach) have the tensile strength to resist the forward momentum of bike and rider. However, I bear in mind that the vine can grow through the fence and then loop back through the fence again, in which case it will be anchored to the steel mesh and be “quite strong and hard to be yanked off”.[44] The vine (certainly in its new growth phase) can also cross over and tangle with other vines or parts of the same vine.[45] If the plaintiff’s handlebar had snagged on a well-anchored loop, or on a part of the vine which had crossed over and become entangled with some other part of the vine, then there could easily have been significant resistance to forward momentum. Mr Jamieson considered that it was “not unreasonable that such vine-like growths could sufficiently hook a handlebar and bring a bicycle down”.[46] I agree.
Therefore, it is quite possible that the plaintiff’s left handlebar was snagged or trapped by some part of the Flagellaria vine, particularly given the width of the handlebars (750 mm) of the plaintiff’s large mountain bike, coupled with the fact that the plaintiff had probably moved closer to the edge of the bitumen. The evidence of the plaintiff and Mr Mouton should be considered in the context of that real possibility.
The plaintiff was very clear, both in his affidavit evidence and evidence given at trial, that his bike had been wrenched to the left of the cycle path by a vine or vines. He said that he was riding at some distance off the mesh fence, and that he would not have come into contact with the fence itself.[47] In cross-examination, he was not challenged in relation to his evidence about the immediate cause of the accident. Moreover, when Daniel Mouton spoke with the plaintiff at the scene, within a very short time of the accident, the plaintiff told Mr Mouton that his handlebars had become entangled in some vines that were growing through the fence and which had grown over part of the bike path; and that this had caused his bike to come to a sudden halt which had thrown him over the front of the bike.[48] In giving evidence at trial, Mr Mouton said that he asked the plaintiff, “How did you come down so suddenly?”, or words to that effect, and that the plaintiff replied, “The stuff on the side hooked me and that’s why I sort of flipped over”.[49]
I am satisfied on the balance of probabilities that the accident was caused by the left handlebar of the plaintiff’s bike becoming entangled in a vine or vines which had grown through the fence and into the area immediately adjacent to the cycle path. This caused the plaintiff’s bike to come to a sudden halt, which in turn caused him to be thrown him over the front of the bike and to land heavily on the ground.
The defendant’s liability in negligence
The principles explained by the High Court in decisions concerning the liability of roads authorities are relevant to this case.
In Brodie v Singleton Shire Council, the High Court decided that the distinction between misfeasance and non-feasance would no longer be the test in determining the liability of roads authorities, and that the ordinary test of liability in negligence would apply. The content of the duty of care was explained by Gaudron, McHugh and Gummow JJ (who together with Kirby J formed the majority) as follows:[50]
Authorities having statutory powers ... to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) ... Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
The perception of the response by the authority calls for … a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.
In relation to ‘repair and maintenance’, their Honours observed as follows:[51]
The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which created a danger, or the removal of items which protect against danger.
In relation to the cycle path in the East Point Reserve, the defendant was in an analogous position to the Singleton Shire Council. Indeed, as mentioned in [5], the defendant admits and alleges that it was under a duty “to take all reasonable care to keep the [East Point] Reserve as reasonably safe for people using the Reserve and bike path as reasonably practicable in all of the circumstances”. The defendant also acknowledges that such duty “would include the pruning of plants in the Reserve and maintenance of the bike path reasonably required of a Public Authority”.
In Roads and Traffic Authority of New South Wales v Dederer,[52] Gummow J (Heydon J agreeing) re-stated what were described as “basic and settled matters of legal principle”, as follows:
First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.[53]
In light of the defendant’s concessions referred to in [42], there is no real issue as to the existence and scope of the defendant’s duty of care. Rather, the issue is whether the defendant took reasonably practicable measures to discharge its duty.
Reasonably foreseeable risk of injury and reasonable practicable response
In identifying the relevant risk of injury, it is necessary to consider and assess both the likelihood that injury will be caused and the nature and degree of such injury.
At the point where the accident occurred, the chain mesh fence was 400 mm from the edge of the bitumen cycle path. That was potentially dangerous, even without the presence of any vines, because of the possibility that the handlebars of a bicycle travelling on the left edge of the outbound lane of the cycle path could strike the mesh and cause a similar accident to that which befell the plaintiff. The presence of vines meant that the potential danger was greatly increased because the chain mesh fence could easily become a solid lattice frame onto which a vine might anchor itself and grow into the space between chain mesh fence and the cycle path. If the vines were the native Flagellaria vine, which had significant tensile strength, there was a further increased risk that the handlebars or some part of a bike being ridden on the cycle path would become snagged or trapped by the vine, with resultant accident and injury.[54] The identified risk was foreseeable in the sense that it was real, and not far-fetched or fanciful.[55] In relation to foresight of consequences, a cyclist coming off a bike travelling at 20 km/h is likely to sustain injuries in the range from minor bruising and grazing, to broken bones, and even serious closed head injuries. There is a very wide range of potential adverse outcomes.
It is therefore not surprising that there exists a national standard which relates to the safe design and siting of cycle paths, applicable Australia-wide, co-written by Austroads and Standards Australia and titled “Guide to Traffic Engineering Practice – Part 14 Bicycles” (“the Australian Standard”).[56]
Section 6.3.5 of the Australian Standard specifies clearances between ‘bicycle operating spaces’ and ‘fixed objects’. The required lateral clearance between the edge of any path for cycling and “any obstacle, which when struck may result in cyclists losing control or being injured”, is specified as 1.0 m, with 0.5 m minimum also specified. The reference to “any obstacle” includes bushes, trees and large rocks used in landscaping.[57] There are certain exceptions, not relevant in the present case. In my opinion, there is no relevant difference between bushes and vines. The relevance of the Australian Standard is that (1) it confirms that the risk of injury to a cyclist using the cycle path, through striking an obstacle located too close to the edge of the cycle path, was a recognized foreseeable risk at the time of the accident, and (2) it specified the extent of clearance reasonably required to eliminate or reduce that risk.[58]
It is probable that, at the point where the accident occurred, the vines were extending well into the 400 mm wide zone between the chain mesh fence and the edge of the bitumen cycle path. I refer to my findings in [28] and [38] above. There was very little, if any, lateral clearance between the edge of the cycle path and the vines, certainly not the recommended clearance of 1.0 m, and not even the 0.5 m minimum clearance specified in the Australian Standard.
Although the defendant’s servants were not necessarily aware of the Australian Standard, they were generally aware of the risk identified in [46], or at least the appropriate response to that risk. Roger Matthews, former Council Parks Section team leader, gave evidence as follows:[59]
… I am talking about any training you have in the context of maintaining the bike path at East Point Reserve or any other shared bike paths. So, when it comes to pruning and maintenance of that bike path?---The … training that I got was through Charles Darwin University in horticulture, but training, as Council training me … it’s more or less an unwritten law, I suppose, where we try to keep at least half a metre from the path where the edge of cycle path is, half a metre back for vegetation.
Mr Matthews trained Anita Meadows, a horticulturalist employed by the defendant. In 2012 Ms Meadows had responsibility for an area of the East Point Reserve from Lake Alexander and its surrounds and “everything on the left-hand side of Alec Fong Lim Drive [the road which tracks to the side of the cycle path] all the way up to the furthest end of the East Point Reserve”.[60] Ms Meadows’ area of responsibility included the cycle path, the chain mesh fence and the area of vines at the scene of the accident. Mr Matthews agreed that, in training or introducing a Council worker to East Point Reserve, he would point out the dangers which a worker should look out for in order to reduce the risk of accident. Mr Matthews further agreed that, in training Ms Meadows, he pointed out to her the dangers, to pedestrians and cyclists, from overhanging branches or encroaching vegetation on the cycle path.[61]
Ms Meadows agreed that the Council’s policy was that, if Flagellaria vine “encroached within the edge of the pathway”, it required cutting back, for safety reasons. Her insights as to the danger of the vine did not apparently extend to an understanding of the danger posed by the presence of the vine in the space to the side of the pathway, although she was aware of the risk that a cyclist’s handlebars could be wrapped up in the vine.[62]
Both Mr Matthews and Ms Meadows were aware of the tensile strength of the native Flagellaria vine.[63]
Given the identified foreseeable risk of injury to cyclists using the cycle path, such as the plaintiff, the question to be asked is what was a reasonable response to the risk. In that consideration, the court has to properly balance the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action, as well as any other conflicting responsibilities of the Council.[64] The inquiry must judge, post-accident, what the reasonable person would have done pre-accident to avoid what is now known to have occurred.[65]
In my opinion, the identified risk from Flagellaria vines encroaching over or within the minimum 0.5 m of the cycle path could have been eliminated and the cycle path made safe if the vines had been cut back or trimmed on the bay side of the chain mesh fence, or if the vines growing through or over the fence had been pushed back through the fence or otherwise re-directed, in either case so that no vines were present in the area between the fence and the edge of the cycle path. Such measure was clearly called for, based on what was known of the relevant risk prior to the accident. The measure was one which a reasonable person would have taken, pre-accident, in response to the foreseeable risk.[66] It would have been a reasonably practical means of obviating the risk.
I turn to consider “the expense, difficulty and inconvenience” of taking the suggested measure, and maintaining control of the vines to prevent their presence in, or return to, the area between the fence and the edge of the cycle path.
The defendant’s system included safety checks in accordance with a ‘Serviceability Chart’, tendered in evidence.[67] Serviceability charts reflected the allocation of resources to tasks in specified precincts, which were subsequently costed and provision made in the defendant’s annual budgets.[68] Under the relevant serviceability chart, three hours per week were allocated to visual checks of the cycle path at the time of the accident. The checks of the cycle path in the near vicinity of the accident scene were carried out by Ms Meadows, whose area of responsibility I referred to in [51] above. I am satisfied that the checks were carried out at least three days per week, possibly up to five days per week. Although Ms Meadows explained that the Serviceability Chart was a guide, in that it was not possible to carry out all the specified tasks on a daily basis,[69] she generally achieved the allocated three hours per week.[70] On the days when she inspected the cycle path, she would spend approximately 30 minutes driving along in her work truck and carrying out a visual inspection. At certain sections she would get out and walk, to inspect and prune anything she considered to be a hazard.[71] Ms Meadows agreed that pruning the vines at the scene of the accident, using secateurs she carried with her in her truck, would not have taken much more than 10 minutes.[72]

Ms Meadows held the view that any vines encroaching on the cycle path should be pruned back, but not removed altogether. She cited conservation reasons: “… it’s a native vine growing in a native reserve”.[73] Here again, it appeared that Ms Meadows’ appreciation of the danger of the vine did not extend to an appreciation of the danger posed by the presence of the vine in the space between the side of the cycle path and the fence.[74]
Given that the inspections in accordance with the Serviceability Chart were to check for and rectify obvious hazards, and given that Ms Meadows would, in the course of such inspections, get out of her vehicle and walk the cycle path, pruning any hazards she detected, it is obvious that the measure described in [55] was easily achievable within the weekly hours allocated.[75] No additional resources were required beyond those already allocated and budgeted for. The issue of competing priorities in the allocation of the defendant’s “finite resources” does not arise.[76] Nor, in my opinion, was the measure of such a nature that it needed to await the major clean ups of the cycle path which took place only twice or three times each year.[77]
Counsel for the plaintiff contends that the task of inspecting and properly maintaining the East Point Reserve cycle path was clearly achievable and not “inordinately expensive or inconvenient”.[78] I accept that submission. I reject the defendant’s submission that its system of inspection and maintenance pruning was an adequate response to the risk of vegetation encroaching on or near the bike path. Although a system was in place, it was inadequate in that it did not, apparently, require the pruning of vine vegetation to the side of the cycle path and hence did not obviate the foreseeable risk to the plaintiff and other cyclists, referred to in [46] above.
The defendant’s system was also said to include bi-monthly inspections of a number of locations within East Point Reserve, the results of each of which were recorded in a document headed ‘Parks Safety Checklist’.[79] The tendered checklist documents referred to a limited number of locations: “East Point Reserve”, “East Point Reserve/Opposite Lake Alexander”, and “Sing Park (Next to Pee Wees)”. The results of bi-monthly inspections for the sub-locality “East Point Reserve/Opposite Lake Alexander” were recorded in Parks Safety Checklists on 24 August 2012 and 25 October 2012.[80] Similarly, the results of bi-monthly inspections for the sub-locality “Sing Park/Next to Pee Wees” were recorded in Parks Safety Checklists on 24 August 2012 and 25 October 2012.[81] Any repair or maintenance work required was identified in an internal work order and work then carried out.
Although there was some oral evidence (referred to below) to the effect that there had been checklists completed for the area where the accident occurred, no relevant documents were tendered in evidence. Undeterred, counsel for the defendant submits that the Court should infer that bi-monthly inspections for the area would have been carried out and the results recorded. However, I am reluctant to draw such an inference because no Park Safely Checklist documents were tendered, for any period of time (whether before or after the accident), which identified the area where the accident occurred as a discrete location subject to bi-monthly inspections. Further, the location of the accident was not identified by reference to any official (or unofficial) name in the defendant’s business records. The only possibly relevant evidence was that of Anita Meadows, as follows:[82]
Ms Meadows, can you just explain to the court from your memory of 2012 what different areas were provided for on these checklists at East Point?---So, in terms of these?
Yes. The witness is pointing to the subject checklist [exh D20]?---So what – so as in how many of these sheets they – were provided of what different areas?
Well, we’ve got one for Sing Park?---Yeah.
And we’ve got one for opposite Lake Alexander?---Yes, there were others, so yes, there were others. I can’t remember exactly all of them but there would have been a section for the top barbecue area; there should have been a section as a whole; there should have been various other ones.
The gun turrets?---The gun turrets, yeah, Dudley Point, there should have been one for there.
The Rocksitters?---Rocksitters, yeah.
All right, thank you. In relation to the area of the vine?---Yeah.
The “area of the vine” is the area where the accident occurred. Evidence that there ‘would have been’ or ‘should have been’ checklists completed for that location is too vague to ground an inference in the absence of any relevant checklist documents. Indeed, Ms Meadows said in cross-examination that she was unsure as to whether there was a checklist “for the area of the bike path in question”.[83] In the circumstances, I decline to draw the inference that the defendant’s system of bi-monthly inspections of locations within East Point Reserve included the area of the cycle path where the accident occurred.
In conclusion, based on my findings in [38], [46], [49], [55], [59] and [60], I am satisfied on the balance of probabilities that the defendant breached its duty of care to the plaintiff. The defendant’s failure to obviate or eliminate the foreseeable risk demonstrated a lack of reasonable care for the plaintiff’s safety.
I now consider the issue of contributory negligence.
Contributory negligence
Counsel for the defendant contends that, if the plaintiff succeeds, his damages should be reduced by “at least 60%” to take account of his contributory negligence. The grounds advanced for the proposed reduction are that (1) the plaintiff put himself at risk of injury by riding through foliage,[84] and (2) the plaintiff did not stop or slow his bike in response to the risk he perceived.[85]
Apportionment of liability where a person suffers damage as a result partly of the person’s failure to take reasonable care and partly of the wrong of another person is dealt with in s 16(1)(b) of the Law Reform (Miscellaneous Provisions) Act, which provides that the damages recoverable are to be reduced “to the extent the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.
In Nance v British Colombia Electric Ry Co Ltd,[86] it was said that:
“… when contributory negligence is set up as a defence, … all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury.”
Contributory negligence “certainly includes failure to adopt reasonable precautions or a reasonable course of action to avoid the consequences or risks which the defendant's negligence sets up.”[87]
In its unanimous decision in Podrebersek v Australian Iron and Steel Pty Ltd, the High Court observed as follows:[88]
The making of an apportionment as between a plaintiff and the defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
In carrying out the necessary ‘comparative examination’ referred to in the above extract from Podrebersek, the court should make an evaluation of the comparative importance of the respective acts and omissions of the parties in causing the damage.[89]
I am satisfied on the balance of probabilities that the plaintiff’s failure to stop or slow down contributed in a significant way to the accident in which he was seriously injured. I refer to my findings in [15] and [16] above. It is quite extraordinary that, notwithstanding his appreciation of the danger posed by the unsteady riding of the approaching child, he did not contemplate stopping, or at least slowing his bicycle to walking speed, to allow the danger to pass. These were reasonable precautions which the plaintiff should and could easily have taken. For the plaintiff to have continued riding at 20 km/h or thereabouts, in circumstances where the child was approaching and his fellow cyclist (Mr Mouton) overtook him and moved in front of him, obscuring his forward vision, was foolhardy. His speed was excessive in the circumstances. I am satisfied that, if the plaintiff had stopped or slowed to walking speed, there would have been nil or minimal deceleration effect as a result of any contact with the vine. Indeed, if the plaintiff had reduced his speed (as the circumstances required), the plaintiff and the child would have passed one another at a different point on the cycle path to that identified in [33] above. The presence of vines may not have been an issue. If, however, the plaintiff’s bike had become entangled with the vine (or any vine) while travelling at very low speed, he would not have been thrown over the handlebars. He would have been able to support himself simply by placing his feet on the ground to hold himself upright, or by leaning against the fence.
I am satisfied that the plaintiff’s damages should be reduced for his contributory negligence in failing to stop or slow his bike in response to the risk he perceived. I consider that a just and equitable reduction is 30%, that is, that the plaintiff should receive 70% of the amount of damages assessed by this Court.
I reject the other ground argued by the defendant for reduction of damages for contributory negligence, referred to in [66] and footnote 84. I do not consider that there should be any reduction for the fact that the plaintiff rode his bike into the vines at the side of the cycle path. I do not accept the defendant’s submission that the plaintiff unreasonably put himself at risk of injury by “riding through foliage”. Unlike the defendant’s employees, the plaintiff was not aware of the potential ‘entrapment properties’ of the Flagellaria vine, described in [35] above. The Flagellaria vine posed particular risks of which the plaintiff was not aware. Riding into an area near the side of the cycle path where the vines were present was not a failure by the plaintiff, in his own interests, to take reasonable care of himself.
I turn to assess the plaintiff’s damages.
Damages
The plaintiff was born on 27 February 1944, and so was 68 years old at the time of the accident.
He had been married to his wife, Kerry Ann Kent, for some 45 years.
The plaintiff had a history of hip problems. He dislocated his hip in a motor vehicle accident in 1965. Subsequently he developed avascular necrosis in 1980 and underwent a hip resurfacing procedure. In 1983 he underwent a total hip replacement performed by or under the care of Professor Howie at the Royal Adelaide Hospital. The plaintiff required a further procedure in 2009 because the hip socket had become loose. At the time of the accident in September 2012, the plaintiff had a 25% lower extremity impairment.[90]
After the accident, the plaintiff was taken to the Emergency Department of the Royal Darwin Hospital, where he was admitted into the ward. He was in severe pain to his right hip and also his right shoulder. The right shoulder was stabilised in a sling. The plaintiff was investigated with x-rays and an MRI to his right hip, which revealed a periprosthetic fracture in the area of a previous (1983) hip replacement.
After consultation with the surgeon who had performed the previous hip replacement, a decision was made to transfer the plaintiff to the Royal Adelaide Hospital for surgical treatment by his former treating surgeon.
The plaintiff was flown to Adelaide on 14 October 2012 and admitted to the Royal Adelaide Hospital. He underwent surgery to repair the fractured femur, under the care of Professor Howie and Professor Solomon. The stem of the previous hip replacement was changed, which involved surgery to replace the pin in the femur with a much longer component and reinforcing the bone with two metal bands or cables.
Some 10 days after surgery, the plaintiff experienced symptoms indicative of a multi-organism infection. This necessitated two further procedures. The first procedure was to reopen the surgical wound and debride the infected tissue, described as a “washout”.[91] Unfortunately, the plaintiff suffered further infection and had to undergo a third procedure to clean out the wound and also replace some of the components of the hip replacement. He was given intravenous antibiotic treatment and transferred back to Darwin on 30 November 2012. He was re-admitted to Royal Darwin Hospital for intravenous antibiotic treatment. He remained on antibiotics for two years.
When the plaintiff was discharged from the Royal Darwin Hospital, on 21 December 2012, he was barely able to walk. He was also generally very weak as a result of the series of infections described. He returned to his home, an elevated house in the Darwin suburb of Malak. (He and his wife would later move to a ground level home in the suburb of Lyons.) Some three or four months after he was discharged from hospital, possibly more than that, he was able to resume an exercise program at his gym. By that stage he could drive himself.[92] By 2015, he was back to doing light work at the gym: riding an exercise bike. He also did exercises in a hot exercise pool under the direction of a physiotherapist.
Damages for pecuniary loss
The plaintiff is an electrical engineer. In August 2011, he had commenced employment as a Principal Electrical Engineer with GHD Pty Ltd. His role was that of High-Voltage (HV) Cable Project Manager, engaged on the Woolner Zone Substation Project for the Northern Territory Power and Water Corporation. His hourly rate of pay was $121.10 per hour, for all hours worked. That amount included a loading in lieu of annual and sick leave and statutory public holidays, but the employer in addition made superannuation guarantee contributions on the plaintiff’s behalf. The plaintiff in cross examination accepted that he worked about 39 hours each week, effectively full-time hours, on a casual or consultancy basis.[93] During the period from 10 August 2011, when the plaintiff commenced, to 30 June 2012, a period of 44 weeks, the plaintiff’s gross earnings were $170,996.[94] Averaged over that period, the plaintiff’s average weekly gross earnings were close to $3,886. That average takes into account the weeks the plaintiff did not work, for example the GHD Christmas closure period, public holidays, recreation leave taken by the plaintiff, and so on. The plaintiff said that he had kept a log book of hours worked,[95] which may have enabled greater precision in ascertaining past earnings, but the log book was not produced or relied on.
The assessment of any award of damages for past pecuniary loss is subject to s 20 Personal Injuries (Liabilities and Damages) Act, which requires the court to disregard any amount by which an injured person’s gross weekly earnings would, but for the injury, have exceeded an amount that is three times average weekly earnings as published before 1 January preceding the date on which the assessment is made.
The term “average weekly earnings” is defined in s 18 of the Act to mean “Average Weekly Earnings for Full Time Adult Persons, Weekly Ordinary Time Earnings for the Northern Territory as estimated and published by the Australian Statistician”.
The average weekly earnings figures most recently published prior to 1 January 2018 were published in May 2017. The relevant amount was $1,616.50.[96]
According to the Australian Bureau of Statistics website, the biannual survey of Average Weekly Earnings (AWE) is designed to provide an accurate estimate of the current average value of wages and salaries paid to employees by an employer over a specified period.[97] It does not include all remuneration and so, although superannuation contributions may be part of an employee’s remuneration, they are excluded from Average Weekly Earnings. The effect of s 20 of the Act is that, in assessing damages, I must disregard any amount of the plaintiff’s gross weekly earnings which may exceed $4,849.50, or three times the “average weekly earnings” amount referred to in the previous paragraph. Given that I have assessed the plaintiff’s average weekly gross earnings in the amount of $3,886, s 20 has no effect.
The plaintiff’s intention was to continue in employment with GHD until the completion of the Woolner Zone Substation Project. That project was handed over to the Power and Water Corporation on 24 July 2013. I am satisfied that the plaintiff would have continued to work for GHD until then. Unfortunately, the plaintiff had to cease employment as a result of the injuries sustained in the accident (and the surgical and other treatment required). He did not then return to work. When the plaintiff was asked whether he intended to retire at the end of the Woolner Zone Substation Project, he answered to the effect that he had no other project in contemplation, but that if “something small” had come up, he might have taken the opportunity. However, he would not have signed on for another major project.[98] There was no evidence at trial of any suitable small projects, on which the plaintiff could have worked, having become available after 24 July 2013. I note in this context that the plaintiff did not return to any work after his accident, even after his injuries had stabilized. My conclusion is that the plaintiff would probably have retired permanently at the end of his engagement in the Woolner Zone Substation Project. In the circumstances, I have not allowed damages for loss of earnings or loss of earning capacity beyond 24 July 2013.
Given the basis of calculation of the plaintiff’s average weekly gross earnings of $3,886, it is appropriate in assessing past loss of earnings to apply that average to the entire period from Monday 1 October 2012 to Wednesday 24 July 2013, without the need to speculate on specific periods during which the plaintiff would or would not have been working. The period may be usefully rounded up to 42.5 weeks: 39 weeks in the 2012/13 financial year, and 3.5 weeks in the 2013/14 financial year. I calculate nett loss of $100,921 for the 2012/13 financial year.[99] For the 2013/14 financial year, the notional gross loss is $13,601. That amount is less than the taxable threshold, and hence no deductions are required.
The assessment for loss of earnings is therefore assessed at $114,522.
The plaintiff has also lost the benefit of amounts which GHD would have contributed to discharge its superannuation guarantee obligations. I propose to adopt a somewhat simplified approach to the assessment of this head of damage. The plaintiff’s assumed total gross earnings for 42.5 weeks at $3,886 per week is $165,155. On the assumption that the employer was required by statute to contribute 9% of the gross, the employer would have contributed $14,864. Such compulsory employer before-tax contributions would have been taxed at 15%. The plaintiff therefore lost the nett benefit of employer contributions in the sum of $12,634 (85% of $14,864).
The combined assessment for loss of earnings [91] and loss of employer superannuation contributions [92] is therefore $129,386.
I calculate interest on the amount of $129,386 referred to in [93] to be $15,081.[100]
Wilson v McLeay damages
While the plaintiff was in Adelaide his wife arranged accommodation for herself at the Quest Mansions, which was within walking distance of the Royal Adelaide Hospital. Mrs Kent devoted herself to the plaintiff in what were very difficult circumstances. She would visit the plaintiff each day and help with his feeding and personal hygiene, and provide personal effects and clean clothing. She stayed with him for approximately 4 to 6 hours per day and, when he was able to get out of bed, she assisted him with crutches and wheelchair excursions around the hospital. Her attendances were very important in maintaining her husband’s morale. Mrs Kent’s accommodation cost for her 48-day stay amounted to $6,461. That amount has been agreed. The plaintiff also claims, for Mrs Kent, laundry costs of $10 per day (total $480) and $65 per day for meals (total $3,120).[101] Those amounts have not been strictly proven, and I have some doubt as to whether Mrs Kent actually did laundry each and every day. I also have some doubt that Mrs Kent actually spent $65 per day for meals, or that $65 is a reasonable daily allowance in any event, given that she was staying in self-contained accommodation and (I am satisfied) was quite able to do food shopping.[102] Doing the best I can, I allow for laundry one day in three (total $160) and $300 per week for food and meals (rounded up to a total of $2,100). The overall total for accommodation, laundry and food is $8,721.

I calculate interest on the amount of $8,721 referred to in [95] to be $1,168.[103]
Damages for non-pecuniary loss
Damages are no longer awarded for pain and suffering and loss of amenities of life. In lieu, damages may be awarded for non-pecuniary loss in accordance with s 27 Personal Injuries (Liabilities and Damages) Act. That requires assessment of an injured person’s degree of permanent impairment in accordance with s 26 of the Act.
On 12 September 2015, the plaintiff was examined by Dr Simon Journeaux, consultant orthopaedic surgeon, for the purpose, inter alia, of assessing his whole person permanent impairment as a percentage using the 6^th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. The defendant has not objected to the evidence of such assessment, and has not sought to cross-examine Dr Simon Journeaux.[104]
The assessment was complicated by the fact that the plaintiff had a 25% lower extremity impairment prior to the accident. At the time of his assessment by Dr Journeaux, the plaintiff had 67% lower extremity impairment. After some adjustments, the lower extremity impairment was reduced to 59%. A calculation was then made whereby the 25% pre-accident impairment was ‘deducted’ from the 59% post-accident. The additional impairment of the lower extremity, attributable to the accident, was assessed as 34%, which was converted to a 14% whole person impairment.
The Table in s 27 Personal Injuries (Liabilities and Damages) Act provides that, where the degree of permanent impairment as a percentage of whole person is 14%, then the person is entitled to 12% of the maximum amount of damages a court may award for non-pecuniary loss pursuant to s 27(1) of the Act.
The amount most recently declared as the ‘maximum amount’ of damages for non-pecuniary loss is $660,000, with effect from 1 October 2017. The plaintiff’s entitlement (12%) under this head of damages is therefore $79,200. The Act provides that no interest is to be awarded on damages for non-pecuniary loss.[105]
Gratuitous services
The plaintiff claims damages for gratuitous care. The term used in s 23 Personal Injuries (Liabilities and Damages) Act is ‘gratuitous services’, defined in s 20 of the Act to mean attendant care services provided to an injured person and for which payment is not required. The definition of ‘attendant care services’ is as follows:[106]
attendant care services means any of the following that are required for the essential and regular care of an injured person:
(a)services of a domestic nature;
(b)services relating to nursing;
(c)services that aim to alleviate the consequences of a personal injury.
By definition, the domestic, nursing and other services must be required for the essential and regular care of an injured person. There are further limitations contained in s 23(1) of the Act, including that the need for the services must be solely because of the personal injury to which the damages relate, and that the services would not have been provided but for that personal injury. There is a final limitation contained in s 23(2) of the Act, the effect of which is that a court may not award damages for gratuitous services unless the services are provided for six hours or more per week and for six months or more. There is no requirement that the services be provided for a continuous period of six months.
There is no direct evidence that any attendant care services were gratuitously provided during the period of the plaintiff’s hospitalisation in the Royal Darwin Hospital from the day of the accident up to the time of the plaintiff’s transfer to Adelaide on 14 October 2012.[107] The topic was not mentioned in the affidavit evidence of the plaintiff or Mrs Kent; nor was it referred to in evidence given at trial.
During the period of just under 7 weeks the plaintiff spent hospitalised in Adelaide, Mrs Kent stayed with the plaintiff each day for up to six hours. There is no reason in principle why damages for gratuitous attendant care services may not be assessed for the period of the plaintiff’s hospitalization, although the fact that he received nursing and other care in hospital is a relevant factor to be taken into account under s 23(5)(b) Personal Injuries (Liabilities and Damages) Act. I agree with the submission of the plaintiff’s counsel that three hours per day should reasonably be allowed for ‘services relating to nursing’ or ‘services to alleviate the consequences’ of the plaintiff’s injuries. The hourly rate, if the plaintiff ultimately qualifies for an award of gratuitous attendant care services, is $40.41. For the 48-day period in Adelaide, the assessment is $5,819.[108]
After his return to Darwin on 30 November 2012, the plaintiff was re-admitted to the Royal Darwin Hospital, where he stayed until his discharge on 21 December 2012. There is no direct evidence that any attendant care services were gratuitously provided during this further period of hospitalisation.
For the two-week period referred to in [104] and the three-week period in [106], I have no doubt that Mrs Kent supported the plaintiff in his time of need,[109] but probably not to the same extent as when the couple were in Adelaide, away from home, where Mrs Kent was able to devote herself to her husband’s needs without the distraction of managing household domestic matters, seeing friends and the like. I am able to infer, in the absence of direct evidence, that attendant care services were gratuitously provided to the plaintiff by Mrs Kent during the plaintiff’s stay as an in-patient at the Royal Darwin Hospital. I assess 12 hours per week for a total of five weeks at the hourly rate of $40.41, rounded up to $2,425.
In relation to the period after his discharge from Royal Darwin Hospital on 21 December 2012, the plaintiff claims that his mobility was severely restricted for the first six months and that he could not assist with the normal tasks he had previously undertaken, including cleaning the house, gardening, making the bed, washing dishes and the other things he used to do around the house. He claims that his wife spent, on average, 10 hours per week helping him with the usual daily tasks.[110] As I understand the plaintiff’s evidence, Mrs Kent compensated for her husband’s disability by taking over and herself doing the tasks he had previously done. Mrs Kent would not need to have done these things, or would not need to have done her husband’s ‘share’ of these things, but for the fact of the injury and its consequences.
Mrs Kent explained that the plaintiff was very active around the house prior to the accident and that, although he worked full-time, he would assist with housekeeping chores. She claims that for the first six months after his discharge from the Royal Darwin Hospital, “He was not able to do any of the things he used to do around the house such as assisting me with the house cleaning, making the bed, gardening, washing dishes and the other usual household tasks”. She added, “He was not able to do many of the things for himself that he had previously been able to do”.[111] Her estimate, which mirrors the plaintiff’s estimate, is that she spent an extra 10 hours per week helping her husband. In the table, annexure ‘KK1’ to her affidavit, Mrs Kent set out a breakdown of the additional time spent. The table is a somewhat artificial reconstruction, made some three years or more after the event, and is really no more than a neatly presented series of estimates. The period of six months seems to have been determined quite arbitrarily, coincidentally satisfying a requirement under s 23(2) of the Act that the services had to be provided for six months or more, but without reference to objectively available information and documents, such as the date of particular medical or physiotherapy treatments, or the date when the plaintiff re-commenced gym work (for which he was able to drive himself).[112] The information in the table does not merit the same weight as, for example, contemporaneous entries recorded in a properly maintained diary.
Notwithstanding the evidentiary deficiencies, I take into account the serious condition in which the plaintiff found himself after the accident, the surgical and other procedures undergone, and the probable period of rehabilitation required. I am satisfied on the balance of probabilities that gratuitous attendant care services were provided by Mrs Kent from the time of the plaintiff’s discharge from the Royal Darwin Hospital on 21 December 2012 up to 30 April 2013, 12 hours per week for the first 4 weeks and thereafter six hours per week. There is some approximation in the assumed transition from greater to lesser input by Mrs Kent, as the plaintiff became able to resume most household chores, albeit with some restrictions, such as his inability to carry out vigorous physical activity without help. I would assess $5,480 for the period of 18.6 weeks.[113]
The total qualifying period for the purposes of s 23(2) Personal Injuries (Liabilities and Damages) Act is 30 September 2012 to 30 April 2013, namely 7 months. During the whole of that time, gratuitous services were provided for six hours or more per week. I am satisfied that the other conditions precedent, contained in s 23(1) of the Act, have been satisfied and accordingly, that I am able to award damages for past gratuitous services.
The total assessment for past ‘gratuitous services’, taken from [105], [107] and [110], is $13,724. No interest is payable.[114]
Commercial services – past and future
The plaintiff claims damages under this head for gardening and cleaning services.
Damages in respect of commercial services required because of a plaintiff’s impairment or incapacity are not governed or limited by the Personal Injuries (Liabilities and Damages) Act, but are assessed by reference to ordinary common law principles.
In his affidavit evidence, the plaintiff stated that (as at 15 February 2016) he and Mrs Kent were hiring home help to clean the house and maintain the garden because the plaintiff was finding those tasks most difficult to perform. The plaintiff was then paying $280 on average per week for four hours cleaning and four hours gardening (the hourly rate being $35 per hour for each of those services). He reasoned that he if he had not been injured, he would have done “about half these hours” himself from which he reasoned that the injury had caused an expense of $140 per week.[115]
In her evidence at trial, Mrs Kent said that she had taken over the heavy pruning work in the garden and that, if she is unable to do that work (or presumably a task involved in that work), she requires assistance. The situation at the time of trial was that the plaintiff did the lawn mowing, but nothing more. Mrs Kent said that she and her husband had an occasional gardener (rather than a regular gardener), once a month for light pruning and every two to three months for heavier pruning.[116] It is difficult to reconcile the evidence of the plaintiff and Mrs Kent.
The plaintiff complained in cross examination that he struggles to mow the lawn and that he does not do it very often.[117] I find that evidence difficult to accept, given the evidence of Mrs Kent referred to in the previous paragraph. There are few, if any, trees on the plaintiff’s property, only shrubs and bushes which Mrs Kent keeps well pruned. The plaintiff is able to use the leaf blower, although he experiences some difficulty on the sloping driveway, possibly because he tires more quickly.[118] Mrs Kent uses a hose to keep hard surfaces clean.
Dr Journeaux, when asked about the plaintiff’s prognosis, referred generally to the permanent functional effects suffered, including permanent effects in the plaintiff’s home life. He describes Mr Kent as “independent in all household duties”. In relation to the plaintiff’s restrictions, Dr Journeaux wrote: “He fortunately has appropriately moved house to a property that has all the relevant aids in situ and with limited gardening work required.”[119]
I am not prepared to accept, without some corroboration, that the plaintiff was paying an average weekly amount of $280 for cleaning and gardening, as he asserts. No invoices or receipts have been produced to support the plaintiff’s claim for past gardening expenses. There was no evidence from any gardener or gardeners who had carried out or were carrying work for the plaintiff and Mrs Kent. There was no reference to the name of any gardener or garden maintenance business. The plaintiff and Mrs Kent did not appear to even agree as to how often the gardener attends at their home. While I am more inclined to accept the evidence of Mrs Kent, she did not say how many hours the gardener works on the day each month he/she attends for pruning. Neither the plaintiff nor Mrs Kent said when the gardener started to provide services at their home. Although the clear indication is that it was after the accident, the evidence does not establish precisely when.
In the circumstances, I find it very difficult to assess any amount for past gardening expenses. Doing the best that I can, I assess $5,000 to the date of judgment, inclusive of interest. For the future, I note Dr Journeaux’s view that assistance will be required by the plaintiff not only because of his impairment, but also because of his increasing age. I would add that, unrelated to the accident, the plaintiff has well-established osteoarthritis in both knees, with fixed flexion deformities and limitation of movement. I assess a requirement for 3 hours gardening assistance once every 28 days, at a present day value of $35 per hour. The amount produced by that assessment is $10,560.[120]
For past cleaning services, I agree with the submission made by counsel for the defendant that “evidence as to cleaning of the house which would demonstrate the need for a paid cleaner is sparse”. The plaintiff’s evidence was that, prior to his accident, the normal tasks he had undertaken included cleaning the house.[121] That was the extent of the detail. The affidavit evidence of Mrs Kent was that the plaintiff “used to assist [her] with the house cleaning”.[122] In her evidence at trial, Mrs Kent said that, post-accident, the plaintiff was not able to vacuum, or wash floors, or do any heavy duties, all of which he had done before the accident.[123] She explained that it fell to her to do an extra one and a half to two hours of house work per week. Mrs Kent did not mention ever having engaged a cleaner to carry out the cleaning work which the plaintiff was no longer able to do; indeed, her evidence suggested that (at the time of giving evidence) she did the extra work herself: “So, it mostly falls to me”. It is difficult to reconcile the evidence of the plaintiff (as to paying an average weekly amount of $280 for cleaning and gardening) with the evidence of Mrs Kent. Moreover, I have a similar difficulty in relation to the assessment of amounts paid for past cleaning services as I had in relation to the assessment of amounts paid for past gardening services. I refer to the absence of invoices or receipts; the absence of evidence from any cleaner who had carried out or was carrying work for the plaintiff and Mrs Kent; and also the fact that no cleaner was even identified.
The evidence is quite unsatisfactory and, in the circumstances, I decline to award damages for the cost of past cleaning services. However, for the future, I assess a requirement for two hours cleaning per week, at a present day value of $35 per hour. The amount produced by that assessment is $28,161.[124]
Past special damages
The parties have agreed past special damages in the amount of $102,109. That amount includes medical expenses subject to repayment obligations to Medibank Private and Medicare; amounts payable to the Northern Territory Department of Health for hospitalization in the Royal Darwin Hospital, outpatient and allied health attendances, and Careflight costs.
Further matters
I would reject the plaintiff’s claim for past and future podiatry costs. The claim is based on a statement made by the plaintiff to an examining doctor (Dr Haig) in 2015, and referred to by Dr Journeaux in his report, that the plaintiff was unable to cut his toe nails. Apart from that recorded complaint, there is no evidence from the plaintiff or from Mrs Kent as to the plaintiff’s relevant inability, not is there any supporting opinion given by Dr Journeaux. Counsel for the plaintiff submitted that Dr Journeaux “appears to accept that the plaintiff is unable to cut his toenails”. With respect, I disagree. Dr Journeaux has done no more than extract the plaintiff’s complaint to another specialist. He has not, for example, linked the plaintiff’s complaint with his own findings on examination as to flexion and abduction, set out in his report.[125] Because the plaintiff has failed to prove on the balance of probabilities that he is unable to cut his toenails, his podiatry claim cannot succeed.
For future special damages, I consider that an award of $5,000 is appropriate for the cost of future orthopaedic assessments and follow-up, given the possibility that the plaintiff’s right hip joint might loosen or wear. The award is modest, given that it was always possible that he would have required a revision procedure or multiple procedures. Some allowance is appropriate, however, given Dr Journeaux’s opinion that the accident increased the chances of a revision being required.
Damages - Summary
I set out a summary of damages below:-

Damages for pecuniary loss (loss of earnings) [91]

$114,522

Damages for pecuniary loss (loss of superannuation benefits) [92]

$12,634

Interest on damages for pecuniary loss [94]

$15,081

Damages for non-pecuniary loss [101]

$79,200

Wilson v McLeay damages [95]

$8,721

Interest on Wilson v McLeay damages [96]

$1,168

Damages for gratuitous services [112]

$13,724

Damages for commercial services – past [120]

$5,000

Damages for commercial services – future [120], [122]

$38,721

Special damages – past [123]

$102,109

Special damages – future [125]

$5,000

TOTAL

$395,880

On application of the percentage reduction of 30% arrived at in [73], there should be judgment for the plaintiff in the sum of $277,116, being 70% of the amount of assessed damages.
I will hear from the parties in relation to costs.
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[1]Other alleged breaches were abandoned in the Further Amended Statement of Claim filed 4 November 2016.

[2]Amended Defence dated 16 October 2015 (“Defence”), par 2.

[3]Defence, par 5.1.

[4]Defence, par 5.2.

[5]Summary of particulars of negligence pleaded in par 6.2 of the Defence.

[6]Defence, par 7.

[7]Plaintiff’s estimate(s) at T 24.4; T 113.2.

[8]T 24 - 25.

[9]T 26.2. The plaintiff later said at T 26.7 “… the child was a little unstable … not riding in a straight line.”

[10]T 25.5: “They would have been just the other side of that gate”.

[11]T 87.4.

[12]Affidavit Brian Thomas Kent, sworn 15 February 2016, exh P1, par 15; corrected at T 18.3.

[13]Statement of Claim par 5(d), amended/inserted at trial, T 3.8. The plaintiff’s evidence appears in cross-examination at T 112.7.

[14]T 26.2.

[15]Exh P1, pars 14, 17.

[16]T 27.1.

[17]T 114.2.

[18]T 113.9 - 114.

[19]Report of Hall Technical, 20 January 2016, exh D7, par 8.1.

[20]T 27.1; T 114.6.

[21]T 123.1.

[22]T 123.1.

[23]Report of Hall Technical, 20 January 2016, pars 8.2, 8.3.

[24]The dimensions and measurements are taken from exhibit BTK1. Note that exhibit BTK1 shows the height of the fence as 1,370 mm, in height, not 1,200 mm as deposed to in paragraph 15 of the plaintiff’s affidavit of evidence in chief, exhibit P1.

[25]Exhibit P1, par 22.

[26]Exhibit P1, par 23, referring to exhibit BTK 1 to the affidavit.

[27] Evidence Christopher Hall, T 168 - 170.

[28]Exhibit P10, T 131. In his supplementary report, Mr McDonald had estimated that the vine would have grown 30-50cm in the intervening period, taking into account, inter alia, the actual October 2012 rainfall records.

[29]Exhibit D11, T 253.5 – 256 (photographs 33 and 42).

[30]Exhibit D21, T 297 – 298 (photograph 38).

[31]T 29.

[32]Exhibit D5, PD6 letter from De Silva Hebron to City of Darwin, dated 20 February 2015.

[33]For example, evidence of Scott McDonald at T 128.8, 129.5, 132.1.

[34]T 29 - 30. Exh ‘BTK1’ showed the distance between the mesh fence and the edge of the sealed bike path as 400 mm, and the “extent of intrusion” of the vines into the cycle path, from the fence, as 800 mm; hence by inference that the vines protruded some 400 mm into the cycle path.

[35]T 88.2: “I don’t think they differ at all”.

[36]Exh P7, Court Book p 139.

[37]Exh D7, Court Book p 254, par 6.3.

[38]Exh D7, Court Book p 255, par 6.5. See also Mr Hall’s evidence at T 168.3.

[39]The plaintiff claimed that as he lay on the ground he observed that the vine was overlapping the asphalt, “the same as the photographs” – T 29. Mr Hall speculated that the impact with the plaintiff’s bike may have pulled the vines out of position and further onto the bike path: “a disturbing force applied to the foliage” (exh D7, par 6.6).

[40]I refer to a direction sign and representative figure painted on the bike path surface.

[41]Exhibit P3.

[42]Evidence Scott McDonald, exhibit P9, report dated 19 August 2016, Court Book page 196; Roger Matthews T 249.5; Anita Meadows T 288.2.

[43]Evidence Scott McDonald T 128.8 (“rampant creeper, vigorous climber”).

[44]Anita Meadows, T 288.4; see also plaintiff’s evidence at T 29.5.

[45]Anita Meadows, T 298.2 (ReXN).

[46]Exh P 7, Court Book p 145.9.

[47]T 29.4.

[48]Exhibit P5, par 13.

[49]Daniel Mouton, T 92.9.

[50]Brodie v Singleton Shire Council (2001) 206 CLR 512 at [150] – [151].

[51]Brodie v Singleton Shire Council (2001) 206 CLR 512 at [159].

[52]Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [18].

[53](1980) 146 CLR 40 at 47 - 48.

[54]There was the additional risk, which I do not need to independently consider, that more than one rider - whether oncoming or following - would be involved in any accident which might occur.

[55]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 per Mason J.

[56]Extracted in Exh P7, pp 37 - 39. The document was first published in 1999.

[57]Standard extracted in Exh P7, p 39.

[58]See the observations of Mildren J in Giner v Public Trustee and Anor (1991) 105 FLR 410 at 415.9 - 416; see also Renehan v Leeuwin Ocean Adventure Foundation (2006) 17 NTLR 83 at [94].

[59]T 245.8.

[60]T 276.5.

[61]T 247.9.

[62]T 294.7 to bottom of page.

[63]Evidence Roger Matthews T 249.5; Anita Meadows T 288.2.

[64]See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48, per Mason J; see also Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [273], [278] per Callinan J.

[65]Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] per Hayne J.

[66]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, per Mason J; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [39] per Gleeson CJ.

[67]“Central Precinct – Lake Alexander – Serviceability Chart”, annexure ‘RPM1’ to exh D10, Affidavit of Roger Paul Matthews.

[68]Evidence Kerry Smith, T 208.5; Affidavit Roger Matthews, exh D10, pars 16 - 20.

[69]T 277.3.

[70]T 293.7.

[71]T 277.9.

[72]T 295.3: “And that would have taken five to ten minutes?---Probably a bit longer, but yep.” At T 215.5, Kerry Smith, the defendant’s Manager of Infrastructure Maintenance, agreed five to ten minutes was an appropriate time in which to prune the vine back to the fence.

[73]T 280.2.

[74]See, for example, the cross-examination at T 287 - 288.

[75]As Ms Meadows appeared to concede at T 293.9.

[76]Cf. the defendant’s closing submissions, par 98. For the same reason, the submission in par 100 that the defendant would have to spend $2m annually to keep footpaths and bike paths clear of vegetation is not relevant.

[77]Explained in greater detail at T 278.

[78]Plaintiff's submissions on liability, par 46.

[79]See exh D9, Court Book pp 267 - 278; and further examples tendered as exhs D19 and D20.

[80]Exhibits D19 and D20.

[81]Court Book, pp 273 - 274; 277 - 278.

[82]T 283.7 - 284.

[83]T 288.8.

[84]Defendant’s closing submissions pars 145, 148 and 150.

[85]Defendant’s closing submissions pars 152, 153.

[86]Nance v British Colombia Electric Ry Co Ltd [1951] AC 601 at 611, cited with approval by the Northern Territory Court of Appeal in Preti v Sahara Tours Pty Ltd and Parks and Wildlife Commission [2008] NTCA 2; 22 NTLR 215 at [10].

[87]Insurance Commissioner v Joyce (1948) 77 CLR 39 at 58 per Dixon J.

[88]Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494.

[89]Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [168] per Kirby J.

[90]As assessed (retrospectively) by consultant orthopaedic surgeon, Dr Simon Journeaux.

[91]Report Dr Simon Journeaux, 21 October 2015.

[92]T 65.9.

[93]T 55.

[94]T 57.5.

[95]T 58.5. Evidence of unpaid leave taken in the first part of 2012 was given at T 118.

[96]See column headed “Earnings; Persons; Full Time; Adult; Ordinary time earnings; Northern Territory”. Table 13G, Column H. The document was released on 17 August 2017. The November 2017 survey results will not be published until February 2018.

[97] 59.8.

[99]The annual gross income, where weekly gross income is $3,886.00, is $202,072.00. For the 2012-13 tax year, the tax was $54,547.00 plus 45c for each $1 over $180,000, that is, $64,479.40. See tax rates at . However, this calculation does not factor in the Medicare levy of 1.5% of taxable income, which I calculate to be $3,031.08. After deduction of tax and Medicare levy, the annual income of $202,072 is reduced to $134,561.52, giving a weekly nett income of $2,587.72, or $100,921.08 for 39 weeks. For Medicare levy details see: .

[100] Calculated as follows: $129,386 x 2.61% x 4.4657 years = $15,080.55. The rate of 2.61% is the Commonwealth Government 10-year benchmark bond rate applying on the first business day of July 2017 – see definition (b) of “relevant interest rate” in s 30(2) Personal Injuries (Liabilities and Damages) Act. The rate is obtained from , under the heading ‘Interest Rates’. Table F2 (Capital Market Yields – Government Bonds – Daily), row ‘1052’, column ‘E’ shows 2.61% as the specific rate for the first business day of July 2017 (03/07/2017). The period of 4.4657 years is the period of 4 years and 170 days from 1 August 2013 to 17 January 2018.

[101]Affidavit of Kerry Ann Kent sworn 26 February 2016, par 12.

[102]In her affidavit, Mrs Kent said that she stayed with her husband for approximately 4 - 6 hours per day. In his affidavit, Mr Kent estimated 4 - 5 hours per day on average. However, when Mrs Kent was cross-examined to suggest that she had adequate time outside visiting hours to undertake a small grocery shop for herself, she increased the number of hours spent with her husband to “probably 6 - 8 hours most times” – T 140. She also suggested she normally had a grilled breakfast, such that she could not have economized by buying a box of cereal and a container of milk. She later claimed in re-examination, when asked to explain the table “KK1” annexed to her affidavit,“I don’t always have a cooked breakfast at home but I do when I’m travelling.” At home, she said, she has a cup of tea and some fruit - T 141. Counsel for the defendant submitted that Mrs Kent’s evidence was “obstructive and false”.

[103]Calculated as follows: $8,721 x 2.61% x 5.1315 years = $1,168.02. The period of 5.1315 years is the period of 5 years and 48 days from 1 December 2012 to 17 January 2018.

[104]There is no issue between the parties in relation to whether the assessment of permanent impairment using the 6^th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment complies with s 26(3) Personal Injuries (Liabilities and Damages) Act.

[105]Personal Injuries (Liabilities and Damages) Act, s 29(a).

[106]Personal Injuries (Liabilities and Damages) Act, s 18 definition.

[107]Date taken from plaintiff’s affidavit, exh P1, par 44. In cross examination at T 80-81, the plaintiff said the date was 12 October. I am satisfied that the transfer was 14 October 2012, based on Dr Journeaux’s report, exh P4, in which he reviewed the admission and discharge records of both the RDH and the RAH (Court Book p 209).

[108]See s 23(4) Personal Injuries (Liabilities and Damages) Act. The calculation for the Adelaide period is $40.41 x 3 hours per day x 48 days = $5,819.04.

[109] See, for example, Mrs Kent’s affidavit, exh P11, par 7.

[110]Plaintiff’s affidavit, exh P1, par 46.

[111]See Mrs Kent’s affidavit, exh P11, pars 15, 16.

[112] The plaintiff referred to gym membership records in cross examination at T 53. However, they were not produced.

[113]The period 21 December 2012 to 30 April 2013 is 18.6 weeks. For the first 4 weeks, the calculation is:
4 weeks x 12 hours per week x $40.41=$1,939.68, rounded to $1,940. For the following 14.6 weeks, the calculation is 14.6 weeks x 6 hours per week x $40.41=$3,539.91, rounded off to $3,540. The total is $5,480.

[114]Personal Injuries (Liabilities and Damages) Act, s 29(b).

[115]Plaintiff’s affidavit, exh P1, par 47.

[116]T 137.

[117]T 67.5.

[118] T 142 (Mrs Kent): “He just has trouble walking around for any length of time …”.

[119] Exh P4, page 11, Court Book p 212.

[120]Calculation: 3 hours x 13 annual periods x $35= $1,365 per annum or $26.25 per week. Applying the multiplier of 402.3 shown in Luntz, Fourth Edition, Table 3B, for a 74 year old male ceasing at death, at 5% compound interest, the result is $26.25 x 402.3=$10,560.37.

[121]Plaintiff's affidavit, exh P1, par 46.

[122]Exh P11, par 15.

[123]T 137.2.

[124]Calculation: 2 hours $35= $70 per week. Applying the multiplier of 402.3 shown in Luntz, Fourth Edition, Table 3B, for a 74 year old male ceasing at death, at 5% compound interest, the result is $70 x 402.3=$28,161.

[125]Exh P4, p 5, Court Book p 206.

Damages for pecuniary loss (loss of earnings) [91]	$114,522
Damages for pecuniary loss (loss of superannuation benefits) [92]	$12,634
Interest on damages for pecuniary loss [94]	$15,081
Damages for non-pecuniary loss [101]	$79,200
Wilson v McLeay damages [95]	$8,721
Interest on Wilson v McLeay damages [96]	$1,168
Damages for gratuitous services [112]	$13,724
Damages for commercial services – past [120]	$5,000
Damages for commercial services – future [120], [122]	$38,721
Special damages – past [123]	$102,109
Special damages – future [125]	$5,000
TOTAL	$395,880