McBain v Reyne No. Scgrg-90-2040 Judgment No. S6501

[1998] SASC 6501

McBAIN V REYNE AND OTHERS

Civil

Debelle J

In this action, the plaintiff claims damages for personal injuries he suffered in a motor vehicle accident on 20 November 1988.  The accident occurred in a vineyard at Keppoch which is a short distance south of Padthaway.  The plaintiff alleges that he was a pillion passenger on a small  Honda motor cycle driven by his friend, Darren Reyne, when it collided with a utility being driven by the first defendant, Stephen Reyne.  The collision caused the plaintiff to be thrown from the motor cycle.  He sustained a fracture to the skull causing a severe brain injury which has significantly impaired his ability to lead a normal life.

Dramatis Personae

Before proceeding further, it is convenient to mention the parties involved.

The plaintiff was born on 1 June 1974 and at the date of the accident was aged 14 years.  He was aged 22 years at the trial.  The plaintiff sued by his next friend, his mother, Mrs Shakes.  The plaintiff’s mother and father had separated when he was young.  His mother had remarried.  At the time of the accident, the plaintiff lived with his mother and stepfather on a farm a short distance west of the vineyard in which the accident occurred.

The first defendant, Stephen Reyne, was at the date of the accident employed in the vineyard as a supervisor.  He had been employed by the second defendant in the vineyard for at least 19 years.  His duties were akin to those of an overseer.  He directed the activities of other employees as well as being responsible himself for certain tasks.  He was immediately responsible to his brother Wayne Reyne who was the vineyard manager.  As might be expected, his duties in connection with the husbandry of the vineyard often required him to work on Saturdays and Sundays.

The second defendant was originally called Thomas Hardy & Sons Pty Ltd.  It owned and operated the vineyard at the time of the accident.  The vineyard is at Keppoch which is a short distance south of Padthaway.  In consequence of restructuring and a merger, the operations of Thomas Hardy & Sons Pty Ltd are now conducted by BRL Hardy Limited.  On 15 September 1992, Thomas Hardy & Sons Pty Ltd changed its name to ACN 007 689 595 Pty Ltd and on 29 September 1993 that company went into voluntary liquidation.  These changes in the ownership and operation of the vineyard do not affect questions of liability.  I will refer to the company as "Thomas Hardy". 

The third defendant, Wayne Reyne, was at the date of the accident employed by Thomas Hardy as the manager of its vineyard operations at Keppoch.  He was responsible to senior management in the Thomas Hardy organisation for all of that vineyard’s operation.  He had been employed in the vineyard for some 19 years.  He left the employ of Thomas Hardy in September 1989.  Wayne Reyne was the brother of Stephen Reyne and, as manager for Hardy in this vineyard, was the immediate superior of his brother.  Like his brother Stephen, his duties often required him to work in the vineyard at weekends and out of normal working hours.  Wayne Reyne is the father of Darren Reyne.

As I will later find, Darren Reyne was the driver of the motor cycle on which the plaintiff was a passenger when he was injured.  On the day of the accident Darren Reyne was aged 15 years and could not, therefore, hold a driving licence.  He owned the Honda motor cycle which had been given to him by his father some three to four years earlier.  The motor cycle was a small Honda 50cc motor cycle which was constructed to carry only the driver. It was possible to carry a pillion passenger on the cycle despite the fact that it was not constructed for that purpose.  The motor cycle was unregistered and uninsured.  Darren Reyne is not a party to this action.

The fourth defendant is the Nominal Defendant. It is sued pursuant to the provisions of s116 of the Motor Vehicles Act, 1959 (SA). Because the motor cycle was unregistered and uninsured, the plaintiff will not be able to recover from the Nominal Defendant unless he can prove that the motor cycle was being driven on a road: s116(2) of the Motor Vehicles Act. Thus, one of the issues at the trial was whether the vineyard road on the headland was a road.

The Vineyard

At the date of the accident and to this day, Thomas Hardy’s vineyard at Keppoch was on both sides of the Naracoorte Road between Padthaway and Naracoorte.  I will call the main road "the Naracoorte Road".  At this point, the Naracoorte Road runs due north and south.  The vineyards are planted on both the eastern and western sides of the Naracoorte Road.  The vineyards to the east of the road are planted on higher ground than those on the west.  Thomas Hardy provided a house in which its vineyard manager could reside.  The  house is also on the eastern side of the Naracoorte Road.  Wayne Reyne lived in the house with his family.  From different points in and around the  house it is possible to see across a good deal of the vineyards on the western side of the road.  There are trees along the roadside, in front of the house and in the western vineyard which, depending on the viewpoint, obscure a view of  parts of the western vineyard.  I will return to the question of the capacity to see the western vineyard from the manager’s house.

The vineyard was a large one.  There are approximately 650 acres on the western side of the Naracoorte Road and about 200 acres on the eastern side.  In addition to the manager’s house on the eastern side of the road, there was another house in which Stephen Reyne lived a little further to the south.  That was also owned by Thomas Hardy.   In addition, a crusher, a storage facility, garages for vehicles, workshop areas and storage sheds were all on the eastern side of the road in an area behind the manager’s house.  The workshop area included an office, lunch rooms and fuel pumps. 

The accident occurred in the vineyards to the west of the Naracoorte Road.  It is necessary to describe that vineyard in greater detail.  The vines are set out in parallel rows in the conventional manner.  The rows run east and west.  The vines are divided by parallel thoroughfares which run north and south and are about seven chains apart.  These thoroughfares run across the head of the rows of the vines and are commonly known as "headlands".  In addition, there were two other thoroughfares which ran in an east-west direction.  They both ran from one side of the vineyard to the other joining the Naracoorte Road with a road at the rear of the vineyard called Grubb Road.  For convenience, I will refer to those two roads within the vineyard as "the vineyard roads". 

The vineyard roads intersect with the headlands at right angles.  The vineyard roads are 20 feet (about six metres) wide and the headlands are about 24 feet wide (less than eight metres).  The vines run parallel with and close to the vineyard roads.  There is an area in the centre of each headland which has been compacted to form a road surface for vehicular access.  The compacted road surface is about eight feet or two metres wide. The construction of the vineyard roads and the headlands was similar, each having a compacted surface similar to macadamised roads seen in country areas.  They were easy to drive along. Vines had been planted close to the strainer post of each row.  Thus, when fully grown, the vine would extend right up to the strainer post.  Given the proximity of the vine to the vineyard road, the view of a vehicle travelling along a headland would be substantially obscured when vines were fully grown.

The Vineyard Right of Way Rule

In 1988 there was a rule regarding right of way in the vineyard.  I will call it "the vineyard right of way rule".  I find that it was well known by all employees and by Darren Reyne.  The rule required those travelling along headlands to give way to any person travelling along a vineyard road.

Another well-known rule was that children should not play in the vineyard or in other areas such as the workshop area in working hours.  Darren Reyne was aware of that rule.  Evidence was given by Darren Reyne and his father Wayne Reyne, that children were not to ride motor cycles in the vineyard in non-working hours.  Stephen Reyne was not aware of such a rule.  His evidence was that children could not ride motor cycles in the vineyards during the week but there was no rule as to weekends.  I prefer the evidence of Stephen Reyne, which is more disinterested.  If there had been a rule prohibiting children from the vineyard in non-working hours, Stephen Reyne would have known of that rule.

The Accident

The accident occurred at about 11 o’clock on 20 November 1988, a Sunday morning.  It was a clear day.  At that time Stephen Reyne was driving west along the vineyard road, proceeding from the Naracoorte Road towards Grubb Road.  He was approaching the intersection of the vineyard road and the eastern-most headland. He was driving a Mitsubishi Triton utility owned by Thomas Hardy.  At the same time Darren Reyne was riding his motor cycle along the eastern-most headland approaching the intersection of that headland and the southern vineyard road.  He was travelling in a southerly direction.  The accident occurred in about the middle of the intersection.

Because of the injuries he received, the plaintiff has suffered retrograde amnesia and has no recollection of the accident or how it occurred.  He has no clear recollection of events for some weeks before the accident.  Darren Reyne is able to recall the events before the accident but not those immediately prior to the collision.  His injuries were not as severe as those suffered by the plaintiff. 

The plaintiff and Darren Reyne were good friends.  Darren Reyne was a little more than 12 months older than the plaintiff.  The two boys visited each other frequently.  At about 10.30 on the morning of the accident, the plaintiff had gone to the manager’s house where Darren Reyne then lived.  They decided to ride to a quarry at the rear of Stephen Reyne’s house. They were accustomed to riding the motor cycle in the quarry. Darren Reyne had been given the motor cycle when he was about twelve years old.  He was fifteen years old at the time of the accident.  It is clear from the evidence that he rode it very frequently and was a competent rider.  He had carried other children as pillion passengers on many occasions before.  He knew the vineyard right of way rule.  He had worked as a tractor driver on a casual basis in the vineyard and was familiar with the rule. There was nothing physically to prevent Darren Reyne riding the motor cycle along the side of the Naracoorte Road when travelling to the quarry.  He had done that on other occasions.  He was aware that it was unlawful to do so because of the fact that he did not hold a driver’s licence and the motor cycle was unregistered and uninsured.  On this day, he and the plaintiff decided to drive through the vineyard.  They intended to turn left at the southern vineyard road and travel along it, then across the Naracoorte Road and into the quarry.

The motor cycle was taken across the Naracoorte Road into the vineyard.  Had Darren been following his father’s instructions, he would have pushed the cycle across the Naracoorte Road.  It is unnecessary to find how he crossed the road.  The precise route the boys took in the vineyard is not known.  It is clear, however, that immediately before the accident they were riding along the eastern-most headland, approaching the intersection of that headland and the southern vineyard road, travelling in a southerly direction.      

About two months after the accident, Darren gave a statement to a Mr Kipping, a loss adjustor investigating the accident for the plaintiff.  In that statement he said that the motor cycle did not have a speedometer; that he believed he was travelling at top speed along the headland and estimated the speed to be  about 30-40 kilometres per hour; that he thought he would have slowed to turn left into the vineyard road, because he was intending to turn left along the southern vineyard road to go out of the vineyard and across the Naracoorte Road towards Stephen Reyne’s house; that he could not remember his speed before the collision; and that he had no recollection beyond riding along the headland.  All that he remembers is lying injured on the ground.  He also said that, when he drove into the vineyard, he did not expect that there would be other vehicles there and that he did not see Stephen Reyne’s vehicle before the accident.  His evidence at the trial was to like effect.

Darren Reyne owed a duty of care to those who might be in the vineyard.  In addition, given that he had lived in the vineyards for a relatively long time, he would have known that there was a reasonable likelihood that his father or his uncle Stephen Reyne would be working in the vineyard.  His small motor cycle prevented him from seeing vehicles travelling along the vineyard road.  He knew the vineyard right of way rule.  He therefore had a duty to approach the intersection at a very slow rate of speed in order to be able to stop if he could not turn safely into the vineyard road.  The motor cycle struck the utility with a good deal of force.  Darren Reyne was obviously driving too fast on this occasion.  I find that he was travelling at a speed of 30kph.  His evidence was that he did not see the utility and that he did not expect it to be there.  He plainly did not see the Mitsubishi utility until too late. He has obviously failed to keep a proper lookout. It was most unlikely that he would have heard any engine noise from the utility over the noise of the motor cycle.

Stephen Reyne was in the vineyard because his brother, Wayne Reyne, had asked him to correct a problem with some irrigation in the vineyard.  While driving along, he was examining the vines on his right to check that there was no disease.  It was his practice to make regular and frequent inspections of the vines.  At this point, there were no vines on his left hand side.  He was, therefore, concentrating on his right hand side.

On 19 September 1989 Stephen Reyne had given a statement to Mr Kipping, the loss adjustor acting for the plaintiff.  He then described the accident in these terms:

"As I was crossing one of these headlands, I saw a motor cycle on my right and about one metre from the right-hand door.  The next thing that happened was an impact into the right-hand front door of the utility.  I was only travelling at about 20 to 25 kph and was checking, as I was driving down to the pump.  I did not expect anyone to be in the vineyard on a Sunday.  There was nothing I could do to avoid the accident, as the motor cycle was virtually on me, before I knew.  I applied my brakes and stopped about 20 metres down the track."

He also said that he was unable to estimate the speed of the motor cycle and that he did not believe they would have been travelling very fast.  The motor cycle appears to have struck an area on the off side of his utility near the hinge of the driver’s door, that is to say, at about the rear of the front mudguard.  In January 1989, Reyne prepared a sketch of the intersection showing the position of his vehicle at the time of impact.  It shows the point of impact just behind the front mudguard and places his vehicle at a point beyond the middle of the intersection and close to the extension of the western side of the headland. 

Stephen Reyne’s evidence at the hearing was similar to the account he had given more than seven years earlier.  However, there were some important differences and he added some details.  He said that his speed was a little slower, a speed of about 20 kilometres per hour.  He did not see the motor cycle until just before the collision.  The motor cycle struck the utility at about the hinge of the front door, which opens towards the front of the utility.  He said that he had just passed the end of the first row of vines when the collision occurred.  In an answer to an interrogatory, he had said that he was travelling at 25-30kph.

The account given two months after the accident is likely to be more accurate than that given some eight years later.  I find that Reyne was driving at about 25 kilometres per hour along the vineyard and that the collision occurred in about the middle of the intersection, a conclusion which is consistent with Darren Reyne’s evidence.

Stephen Reyne did not hear the motor cycle before the accident. The utility had a radio in it.  Reyne cannot remember whether it was turned on.  He could not remember whether he had the windows up.  In 1995, he swore in answer to an interrogatory that none of the utility windows were open but that was the first occasion he had been asked any questions on that topic. He admitted that his memory could be at fault. 

He also gave evidence of the height of the vines at the date of the accident.  He said that on the day of the accident, 20 November 1988, the vines had grown to a point higher than his line of sight.   The effect of his evidence is that they were at about his shoulder height, which is about 1.6 metres (or just under 5’6").  I find that, except for occasional fronds, the vines were not then as high as he has stated them to be.  The strainer posts are about four feet high.  Photographs taken in January 1989 by Mr Kipping show that the bulk of the vine is about one foot higher.  The vines would then have had a further two months growth.  Another photograph was taken on 13 October 1996 by Mr Hall, a mechanical engineer called by Thomas Hardy.  This photograph suggests that, even if allowance is made for different seasonal conditions and a further six weeks growth, the vines would not have been as high in November 1988 as Stephen Reyne has suggested.  The motor cycle was small.  The vines were sufficiently high to obscure vision of the motor cycle.  But I do not think that the vines had grown so high as to block completely a view of even this small motor cycle travelling along the headland. I find that, had he been keeping a proper lookout, he would have seen the boys travelling on the motor cycle.  Another factor which is likely to have alerted him to the presence of the motor cycle in the area would have been the noise of the motor cycle.  I will return to this issue.

Stephen Reyne’s evidence was that he did not expect that any person other than his brother Wayne Reyne would be in the vineyard that morning.  He said that he did not expect to come across someone riding a motor cycle.  However, he had on a few occasions seen some children riding motor cycles in the vineyards and had seen Darren Reyne riding his motor cycle more frequently in an area of the vineyards called "the weighbridge area", which is at the north-east corner of the vineyard between the Naracoorte Road and the rows of vines.  The northern vineyard road provided access to the weighbridge area and the rest of the vineyard.  There was, therefore, ready and easy access from the weighbridge area to the vineyard. Given his knowledge that children occasionally rode in the vineyard on weekends and that Darren Reyne more frequently rode his motor cycle in the weighbridge area, Stephen Reyne could not reasonably expect that no-one else would be in the vineyard on that Sunday morning.  What made that assumption particularly unreasonable was the fact that he knew that his brother Wayne Reyne was also in the vineyard that morning.  It was, therefore, necessary for him to keep a proper lookout for another vehicle.  The fact that the growth on the vines formed a fairly effective screen only served to underline the need for care when crossing each intersection.  The lack of a proper look out was, in part, due to the fact that Stephen Reyne was, to use his words, concentrating on the vines as he drove along.  Although he knew that he had right of way, he had a duty to those who might be in the vineyard to take care when crossing the intersection. 

Evidence was led on behalf of Stephen Reyne to demonstrate that the line of sight for vehicles approaching the intersection were extremely limited and that there was a very short distance in which to react and stop on seeing another vehicle.  The thrust of his evidence was that an accident could only be avoided if both vehicles were travelling extremely slowly or had stopped before entering the intersection.  Relying on that evidence, it was submitted that Stephen Reyne had not been negligent. That evidence only serves to emphasise the need to exercise all care on approaching the intersection and maintain a proper lookout.  The evidence emphasises that it is negligent to inspect vines while driving a motor vehicle, instead of keeping a proper lookout.

Motor Cycle Noise

There was a good deal of evidence as to the noise made by the motor cycle. The motor cycle had a muffler fitted to it. The plaintiff’s mother described the motor cycle as very noisy, likening the sound to that of a chainsaw.  Darren Reyne said that it did not make a loud noise but admitted that the noise became louder when he accelerated. Wayne Reyne, his father, described the sound as "quiet".  The first defendant called two men who had had experience with this kind of motor cycle.  The first was a Mr C Hall, a consultant mechanical engineer.  He said that the noise would not sound like a chainsaw.  He said that the noise increased and became more noticeable as the revolutions of the engine increased.  Under a load, the revolutions might fall, so that the noise would be less than if the engine was being operated at higher revolutions.  He has seen Honda 50cc motor cycles used on golf courses to power golf buggies.  It was not clear whether these cycles had been modified to reduce engine noise.  Mr Trevena was a motor cycle machinist.  He had been employed by Honda Australia for some 15 years and had been self-employed for the past five years.  He had had about 30 years experience with Honda motor cycles.  He said that the motor cycle was very quiet, "probably as quiet as a very silent generator or quiet lawn mower". 

Mr Stephen Reyne said that the motor cycle was not as noisy as a chainsaw.  It was not an excessive noise but made a loud noise under acceleration.  When standing outside, he said you could hear the motor cycle approaching from, say, 300-400 metres distant.  I prefer his evidence.  It is based on his actual experience of this motor cycle, unlike Mr Hall and Mr Trevena, who were speaking from general experience.  Actual experience of the noise made by the particular cycle in question is more helpful than an assessment based on one’s general experience of other cycles.  The noise will depend on how the motor cycle is tuned, the condition of the muffler and exhaust system, and other factors.  Loudness of noise is admittedly a subjective issue.  But a guide is the distance from which the noise can be heard.  In this respect, Stephen Reyne’s evidence is again more helpful than others as he has provided estimates.  Of these, the most helpful is that, based on his own experience, in normal conditions, he probably would have heard the motor cycle when it was 100 metres distant, even with the windows up.  His evidence is contrary to his interest.  I find that, had Stephen Reyne been driving with the window of his utility down, he ought to have heard the motor cycle approaching.  Had he been driving with the window up and the radio turned off, he ought to have heard the motor cycle approaching.  Had the window been up and the radio turned on, he would not on the balance of probabilities heard the motor cycle.  There is no evidence that it was Stephen Reyne’s practice to have the car radio turned on while he was driving in the vineyard.  He has no recollection whether it was on or off on that day. There is no other witness who could have given evidence on that topic.  Given his own evidence that he would have heard the motor cycle approaching with the window up, it is more likely and I find that the radio was not on.  Thus, Stephen Reyne ought to have heard the motor cycle and kept a sharper lookout for it. 

The Negligence of the First Defendant

For these reasons, although Stephen Reyne had right of way as he drove along the vineyard road, he ought to have kept a proper lookout: Sibley v Kais (1967) 118 CLR 424 at 427. It is apparent that he neither saw nor heard the motor cycle. I think he could have seen and heard it with sufficient time to avoid the accident. It is apparent that his attention was directed to inspecting the vines as he was driving along instead of to his driving. I find that Stephen Reyne was, therefore, negligent and his negligence was one of the causes of this accident.

Plaintiff Not Wearing Safety Helmet

The plaintiff was not wearing a safety helmet when riding as a pillion passenger.  It is agreed that his negligence in doing so contributed to his injuries and that his contribution should be 20 per cent.

The Claim Against the Third Defendant

It is convenient to deal first with the claim against Wayne Reyne, the third defendant, before the claim against Thomas Hardy, the second defendant.

The plaintiff claims Wayne Reyne was negligent in that he knew that his son, Darren, drove the motor cycle in the vineyard and failed to take sufficient steps to prevent him from doing so.  It is also alleged that he knew that Darren Reyne was not sufficiently old to drive the motor cycle or to drive it with a pillion passenger.  These last two allegations can be immediately put to one side.  The evidence clearly demonstrates that Darren Reyne was an experienced and competent rider.  He had had the motor cycle for about four years before the accident.  He had ridden the motor cycle with a pillion passenger on many occasions without any suggestion of a risk of injury. 

Generally speaking, a parent is not legally liable for the tort of a child: but a parent may be liable for the consequences of a tort if the parent’s negligence caused or provided the occasion for it: Smith v Leurs (1945) 70 CLR 256 at 260, 262; McHale v Watson (1964) 111 CLR 384 at 386. As Windeyer J explained in McHale v Watson at 386:

"In that case the parent is not vicariously liable:  he is liable because of his own negligence.  Such negligence may arise from his failure to exercise a reasonable control of the activities of his child.  It may in some cases arise from arming his child with an instrument which it could reasonably be thought might be used by the child in a manner that would be dangerous to other persons."

Earlier, in Smith v Leurs, Dixon J explained the principle in these terms:

"It now appears to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger.  Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others...  The standard of care is that of the reasonably prudent man, and whether it has been fulfilled is to be judged according to all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected."

The plaintiff’s claim against Wayne Reyne is that he failed adequately to supervise the use by his son of the motor cycle.  It was said that Wayne Reyne knew that his son rode the motor cycle in the vineyard, that he knew that the activity could give rise to a potentially dangerous situation, that he had earlier disciplined his son for driving in the vineyard, and that he failed to take adequate steps to prevent him from riding in the vineyard.  There was no submission that Wayne Reyne had been negligent in giving his son the motor cycle.  I do not think such a submission could have succeeded.  There were plenty of places in this locality where the motor cycle could be ridden safely and without risk to others.  If Wayne Reyne was negligent, it could only result from a failure adequately to supervise his son’s activities on the motor cycle.

I have already mentioned that Darren Reyne was an experienced and competent rider.  He had driven the motor cycle with a pillion passenger on many occasions without any suggestion of a risk of injury.  He obviously had other driving skills.  His father had allowed him to be employed to drive a tractor in the vineyard on occasions.  I infer from that that he was sufficiently skilled to justify his father’s confidence that he could drive the tractor with safety.  The consequences of him not being sufficiently skilled would have been very serious.  It is well known that boys in country areas often learn to drive at an earlier age than do their counterparts in city areas.  The opportunities to gain instruction and experience in safe areas are far more extensive in country areas than in metropolitan areas. It is apparent that Darren had the opportunity frequently to practise his skills at driving this cycle. Thus, in November 1988, he was an experienced and competent rider of this motor cycle.  Further, he would have turned sixteen on 12 December, a little over three weeks after the accident.  Thus, one month after the accident he would have been able to apply for and would have obtained a learner’s permit and, on passing the necessary tests, he would shortly after be able to obtain a provisional licence. 

It was, therefore, reasonable for Wayne Reyne to take the view that Darren should be permitted to ride the motor cycle when he chose to do so with instructions only as to the place where he could ride it. It was reasonable also for Wayne Reyne to take the view, as he plainly did, that it was sufficient to tell his fifteen year old son where he could or could not ride and expect that his instruction would be obeyed. This does not mean that Wayne Reyne should not from time to time have observed where the motor cycle was being driven and enforce compliance with his instruction. However, it was neither reasonable nor practicable for him to know where his son was going on each occasion when he rode the motor cycle. That would require him to be watching his son all day and every day. This is not a case of supervision of a young child but of a young man who would soon be able to drive a motor car. Wayne Reyne was entitled to act on the footing that his son had reached an age when it was sufficient for him to give an instruction. I acknowledge with respect the force of the comments by Andrews CJ in Pask v Owen [1987] 2 Qd R 421 at 429 that instructions do not necessarily confer maturity, discretion, experience and judgment. However, in this case Darren Reyne had had considerable experience and was a competent rider. As to the issues of maturity, discretion and judgment, the Parliament in this State has for a long time permitted persons aged sixteen to drive subject to compliance with the obligations of a learner’s permit and a provisional licence.

Although the motor cycle was capable of causing injury to pedestrians, the rider and any pillion passengers, that did not require Wayne Reyne to supervise his fifteen year old son on each occasion when he rode the motor cycle.  He was entitled to assume that it would be ridden with due care.  To take another view is to make Wayne Reyne an insurer for every action of his son on the motor cycle. 

There was evidence that Darren had been seen riding the motor cycle in the vineyard on six earlier occasions and had been reprimanded by his father.  Mr Holland submitted that his father should have done more than reprimand him.  He suggested that he should have confiscated the motor cycle.  However, he did not go so far as to suggest that it should be confiscated on a permanent basis.  The six occasions when Darren rode in the vineyard must be put in context.  They had occurred over the whole of the four year period he had owned the motor cycle.  When he had done so he was punished by a severe reprimand or a ban on riding the motor cycle for a time.  It was not a series of occasions immediately prior to this accident.  Wayne Reyne was, I think, entitled to act on the footing that the reprimand or punishment administered on each of those occasions was sufficient confirmation of his instruction and would result in the instruction being carried out. It might be said that Darren should have ridden his motor cycle only when expressly permitted to and in areas where he could be seen by Wayne Reyne.  But that is not a reasonable and practical alternative in this country area. 

To paraphrase the observations of Dixon J in Smith v Leurs (supra) at 264, in the end the matter comes down to weighing the risks to others resulting from the driving of this motor cycle against the difficulties and disadvantages of an attempt on the part of Wayne Reyne to eliminate those as well as other foreseeable risks by seeking to restrict the occasions when the motor cycle might be used to those regarded as safe and harmless.  Wayne Reyne had given the clearest instructions to his son.  Darren Reyne was of an age when he was clearly capable of understanding the instructions and complying with them.  On this occasion, he disobeyed them without the knowledge of his father.  There were many places other than the vineyard where the motor cycle could be ridden with safety.  It would not, I think, be reasonable to find that Wayne Reyne had been guilty of any breach of duty of care to the plaintiff.

There was a suggestion that, at different points in and around the managers’ house, Wayne Reyne ought to have been able to see Darren Reyne in the vineyard.  I do not think that it is realistic to suggest that he would have been able to see Darren often when he rode in the vineyard.  That would require Wayne Reyne to maintain a regular and constant lookout. That was unnecessary in the case of this 15 year old boy.  In any event, a clear view would not always be available as trees around the house or bordering the Naracoorte Road would have obscured the view.

Who was Driving the Motor Cycle?

Before proceeding further, it is necessary to deal with an issue raised by the third defendant, Wayne Reyne, namely, who was driving the motor cycle?

Ms Holmes, who appeared for Wayne Reyne, submitted that the plaintiff had not proved that Damien Reyne was the driver of the motor cycle.  She submitted that the plaintiff was the driver.  For the reasons which follow I reject that contention.  Mr Stephen Reyne’s evidence was that, immediately after the accident, he saw Darren Reyne lying on the ground with the handle bars pressed hard against his body and his legs astride the motorcycle.  It appeared to him that Darren Reyne had been pushed forward on the motorcycle.  The handlebars were holding his legs.  The effect of his evidence is that it appears that Darren Reyne’s legs were jammed hard against the handlebars.  I accept that evidence.  It indicates that on the balance of probabilities the driver of the motorcycle was Darren Reyne.  It is also more likely the pillion passenger would be thrown clear from the motorcycle as the pillion passenger would have little to hold to prevent himself from being thrown.  By contrast, the driver of the motorcycle would be able to hold on to the handlebars and on impact might slide up under the handlebars.  Moreover, it is highly unlikely the pillion passenger would slide forward to the position in which Darren Reyne was found after the accident.  That would require first that the driver of the motor cycle would be thrown clear and the pillion passenger then slide forward.  That is too unlikely a course of events even to be a reasonable possibility.  For these reasons, I find on the balance of possibilities that Darren Reyne was the driver of the motor cycle and that the plaintiff was the pillion passenger when the accident occurred.

Is Thomas Hardy Liable?

The plaintiff claims that Thomas Hardy is vicariously liable not only for the negligence of its employee Stephen Reyne, but also for the negligence of its employee Wayne Reyne.  At the time of the accident Stephen Reyne was driving in the vineyard in the course of his employment.  Thomas Hardy is therefore vicariously liable for his negligence.

The plaintiff’s claim that Thomas Hardy is vicariously liable for the negligence of Wayne Reyne is grounded on the fact that he was the manager of its vineyard operations.  It is alleged that he was negligent in that he knew that Darren Reyne rode his motor cycle in the vineyard and failed to prevent him from doing so.  

Wayne Reyne was the manager of the vineyard.  He was the most senior employee of Thomas Hardy at the vineyard.  He was responsible for the vineyard operations.  He reported to a Mr Baker, who visited the vineyard on an almost weekly basis.  Given the position and status of Wayne Reyne, his knowledge was the knowledge of Thomas Hardy.

The vineyard had been planted in 1970.  I have already described how the vines are planted close to the strainer posts so that visibility at the intersection of the vineyard roads and each headland is obscured when the vines are fully grown.  At times, the description "blind corner" was used.  That description might be appropriate when the vines are fully grown.  For reasons already given, I do not think that expression is apt to describe the position in late November 1988.  Of course, from May to late October in each year, a period of some six months, there is little leaf on the vines, so that visibility in that period is good.

There was evidence that there had been one collision in the vineyard and two near-misses.  The collision had occurred in about 1980 in the vineyard on the eastern side of the road in the month of December.  One vehicle was extensively damaged.  The two near-misses had occurred in the pruning season in about 1986 or 1987 and not long after that the vineyard right of way rule was introduced.

Wayne Reyne knew of the collision in the vineyard and of the two near-misses and the evidence showed that those events were reported to the company.  He also knew that, on occasions, his son rode the motor cycle in the vineyard, contrary to his instructions.  He said that he was not aware that any other children rode motor cycles in the vineyard.  I do not accept that evidence.  Stephen Reyne had seen children riding in the vineyard on occasions.  Wayne Reyne had lived and worked in the vineyard for many years.  It is likely that in that time he would have seen children riding motor cycles in the vineyard.  Although Wayne Reyne could instruct his own son not to ride his motor cycle in the vineyard, he could not control other children in that way.  The evidence suggests that no-one had seen Darren Reyne carrying a pillion passenger in the vineyard.  There is no evidence to suggest that, at any time prior to this accident, he had carried a pillion passenger in the vineyard.  When he drove with a pillion passenger, it was in other areas. Thus, Wayne Reyne and, therefore, Thomas Hardy, knew that on occasions children rode motor cycles in the vineyard. 

As manager, Wayne Reyne knew of the collision in the vineyard, the two near-misses, and that his son and other children rode motor cycles in the vineyard occasionally at weekends.  He knew, or ought to have known, that the risk of collision was greatest in the six months when the vines were covered with leaf.  He knew that on relatively frequent occasions work would be conducted in the vineyard at weekends or out of ordinary working hours by employees of Thomas Hardy, usually himself and Stephen Reyne, and on less frequent occasions by casual employees or independent contractors and their employees.  Wayne Reyne ought to have foreseen that there was a risk of a collision at weekends or out of normal working hours between vehicles driven by persons working in the vineyard and motor cycles ridden either by his son or other children.  He ought to have foreseen that the risk of a collision was increased because the motor cycles were small and would not always be readily seen when in the vineyard.  Knowing these facts, it would have been prudent to introduce a rule banning the riding of motor cycles by children in the vineyard at all times including weekends.  It seems there had been little difficulty in policing the rule that children should not ride motor cycles in the vineyard in working hours.  It is likely, therefore, that there would have been little difficulty in policing a rule totally prohibiting the riding of motor cycles by children in the vineyard.  Both Wayne Reyne and Stephen Reyne lived close to the vineyard.  It is likely they would hear motor cycles on most occasions when ridden in the vineyard.  In addition, they would see them if they had to go into the vineyard to carry out some work.  For these reasons, I think that Wayne Reyne was negligent in not introducing a rule prohibiting children from riding motor cycles in the vineyard on any occasion.   Wayne Reyne had discussed with his immediate superior, Mr B Baker, the desirability of preventing children from playing in the vineyard.  Thomas Hardy was, therefore, aware of risks to children in the vineyard.  The knowledge of Wayne Reyne as manager of this vineyard was the knowledge of Thomas Hardy and Thomas Hardy is vicariously liable for his negligence.

The plaintiff also claimed that Thomas Hardy is liable as the owner and occupier of the vineyard.  The defendants also sought contribution on this basis. The question whether it had such a liability is to be determined according to the principles of the law of negligence: s17c of the Wrongs Act, 1936.  It was submitted that Thomas Hardy had failed to take reasonable steps in at least two respects.  It was submitted first that the company could have erected gates across the two entrances from Naracoorte Road to the vineyard road.  Secondly, it was submitted that the company could have taken steps to improve visibility at the intersections.

Should Gates Have Been Erected?

It was alleged that the erection of gates at each of the two entrances from Naracoorte Road was a practical and reasonable means of preventing children entering the vineyard with motor cycles and thus avoid the risk of collision between vehicles driven by employees and those children.  It was suggested that the gates should have been shut outside normal working hours.

The basic vineyard hours on weekdays were 8am - 5pm.  On many occasions Wayne Reyne or Stephen Reyne, or both, would go into the vineyard at weekends to carry out different kinds of tasks.  In busy periods, such as pruning, spraying or vintage, work would be conducted for long hours, sometimes at weekends either by employees of Thomas Hardy or independent contractors and their employees.  Obviously, proper husbandry of a vineyard does not allow for fixed working hours.  Thus, it was likely that at least one vehicle would be driving in the vineyard at any time during daylight hours. 

Thomas Hardy owed a duty of care to those who came on to the vineyard land. In determining whether there has been a breach of that duty of care, I apply the principles applied by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. It is first necessary to ask whether a reasonable person in the position of Thomas Hardy would have foreseen that its conduct involved a risk of injury to the plaintiff, or a class or persons including the plaintiff. The risk of injury must not be far-fetched or fanciful. Given what Wayne Reyne knew of the vineyard, Thomas Hardy knew or ought to have known of the extent to which vines obscured view at the intersection of the vineyard roads and headlands at different times of the year. For at least six months of the year, when vines have a substantial amount of leaf, the view of the intersections is obscured. By 1988, there had been one collision and two near-misses. Thomas Hardy knew that, on occasions, children rode motor cycles in the vineyard but did not know that pillion passengers were ever carried. Thomas Hardy ought, therefore, to have foreseen that there was a risk of collision between the motor cycles and other vehicles being used in the vineyard, at least in the six months in each year when there is a substantial amount of leaf on the vines. It ought to have realised that the collision could result in injury to the driver of the motor cycle. It would not be far-fetched or fanciful to foresee that on occasions there might be a pillion passenger. There was, therefore, a risk of injury to a class of persons which included the plaintiff and Thomas Hardy ought to have foreseen that risk.
         The next question is to determine what is a reasonable response to that risk.  As Mason J said in Wyong Shire Council v Shirt at 47-48:
"The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position...   But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

Children did not ride motor cycles in the vineyard frequently.  When they did so, it was after working hours or at weekends when, generally speaking, there would be little, if any, activity.  Work done out of normal working hours at other times would usually be performed by either or both Wayne Reyne and Stephen Reyne.  It was only in busy periods that work would be done by other employees at weekends.  The probability of a collision occurring was slight, and then only in those six months of the year when there was a reasonable amount of leaf on the vines.
         As already mentioned, gates are erected across the access points from the vineyard roads to Grubb Road on the western boundary of the vineyard.  They are sometimes open during working hours but are closed and usually padlocked at weekends.  The gate on the northern boundary to McBrides Road was usually kept shut and padlocked.  Stephen Reyne gave evidence that gates at the entrances from Naracoorte Road would not have interfered with the operations of the vineyard.  That evidence was given in the context of weekend operations.  I did not understand it to refer to operations during normal working hours.  In any event, I would not accept that answer if it were intended to apply to normal working hours. As already mentioned, this was a very large vineyard. Thomas Hardy used three utilities, at least eight tractors and a motor cycle in its ordinary day to day operations.  In addition, the company used on occasions a crane and backhoe.  Two grape harvesters were available for vintage.  At this time there were usually ten persons employed in the vineyard.  It is relevant to repeat that on the eastern side of the road was the manager’s house, and the house in which Stephen Reyne lived, the crusher, the storage facility, the garages for vehicles, workshop areas and other storage sheds were all on the eastern side of the road  and that the workshop area included an office, lunchrooms and fuel pumps. On the eastern side of the road there was also a caravan park used occasionally by seasonal workers or casual employees. The two entrances from Naracoorte Road to the western vineyard, the northern entrance in particular, were the only access points from the facilities on the eastern side of the road.  It is manifest that there would be relatively constant traffic of vehicles such as cars, utilities and tractors through the entrances from the facilities on the eastern side of the road.  It would be an unreasonable impediment to the vineyard operation if the gates were closed during working hours, particularly during busy periods such as pruning, spraying and vintage.  That conclusion is reinforced by several factors.  First, the vineyard is in a relatively sparsely settled rural area.  Next, as a general rule, in ordinary working hours, only employees would drive in the vineyard.  It was relatively rare for friends or relatives of employees to visit them.  Thirdly, the vineyard roads were not used by those residing in the area as a means of access from the Naracoorte Road to Grubb Road.  They would have ready access via McBrides Road on the northern boundary of the vineyard.  Fourthly, the use of the vineyard by children on motor cycles was relatively infrequent.  Finally, the leaf on the vines would only be an effective barrier to visibility of the intersections of the vineyard roads and headlands for about six months in each year.
         I turn to examine whether Thomas Hardy ought to have erected gates and kept them shut at weekends.  That would not be reasonable or practical at vintage or on those weekends when a number of employees or contractors were engaged in a particular task.  Those weekends would, however, be relatively rare in number.  If gates were erected, it would not be unreasonable for employees opening them at weekends to leave them open while they completed the task they had gone into the vineyard to perform.  The presence of gates would not always be a bar to access.  Furthermore, the gates would only be an effective barrier to access if they were padlocked.  It would, I think, be an unreasonable imposition to require the gates to be padlocked.  As already mentioned, the husbandry of the vineyard required relatively constant access out of normal working hours.  It is not difficult to imagine that the use of padlocks could on occasions create difficulties in locating keys.  It must be constantly borne in mind that this was a vineyard in a rural area.  Even where gates are erected across roadways, it is rare to find them padlocked. 
         Mr Cameron, who appeared for Thomas Hardy, pointed to other vineyards in the Padthaway and Coonawarra region.  Most of those vineyards do not have gates across entrances to the vineyard.  Others have neither fences nor gates.  I do not think that any assistance is to be gained by comparing this vineyard with others in the region.  Each has to be examined according to its own facts and circumstances, the general location of the vineyard, the use which is made of the vineyard, and with due regard to any safety issues which have arisen in the course of the use of the vineyard.
         The cost of erecting gates would, in relative terms, be relatively minimal.  However, keeping  gates across the two main entrances to the vineyard shut and padlocked at weekends would be inconvenient and impracticable.  It would, I think, be so impracticable that employees would not keep the gates shut on all occasions and hence there would be no effective barrier to access.
Removing Blind Corners
         I turn to the question whether Thomas Hardy should have taken steps to improve visibility at the intersection of each headland with the vineyard roads.  It was submitted that the removal of the vine closest to each of the four strainer posts on each corner of each intersection would be an effective means of doing so.  This approach would have undoubtedly improved visibility to a marked extent and would have reduced substantially the likelihood of collision by motor vehicles.  It could not be said that it would entirely prevent the risk of collision.
         Such a step would obviously remove a relatively large number of vines.  In the western vineyard, about 90 vines would have to be removed.  That would obviously reduce the yield from the vineyard.  But this was a large vineyard of some 650 acres and the evidence showed it contained about 300,000 vines.  A loss of 90 vines would, therefore, have a minuscule impact on production.  The loss of those 90 vines must also be weighed against the greatly improved safety at the intersections of the vineyard roads and headlands.  That would be a benefit in terms of industrial safety as well as to any others who happen to be using the vineyard.  The collision and two near-misses which had already occurred served to underline those benefits. Those events ought to have drawn the attention of Thomas Hardy to the dangers inherent in growing vines close to the strainer posts.  Thomas Hardy was aware of the risk and did not take any step to reduce that risk.  For these reasons, it was negligent in failing to remove the vines I have mentioned.  Its failure to remove them substantially reduced the visibility at the intersection of the vineyard roads and headlands and was one of the causes of this accident.  The negligence of Thomas Hardy, therefore, contributed to this accident.
         There was evidence that in recent years vehicles in the vineyards have been equipped with flashing lights mounted on a high point.  Those flashing lights operate continuously and assist in making the vehicle more noticeable.  It was submitted that the utility being driven by Stephen Reyne should have been equipped with such a light at the time of the accident and that the light would have reduced the risk of this collision.  I do not accept that submission.  The motor cycle was small and I do not think it would have been possible for Darren Reyne to see the light over the vines.  The flashing light would not have been fitted to the motor cycle.  The absence of flashing lights is not a relevant cause of this accident.

A Public Road?

The plaintiff and the second defendant assert that the vineyard road on which the accident occurred was a road within the meaning of the Motor Vehicles Act, 1959. The only defendant who put that question in issue was the Nominal Defendant. Section 5 of the Motor Vehicles Act defines a road in these terms:

"(a)    a road, street or thoroughfare; and

(b)   any other place commonly used by the public or to which the public
are permitted to have access."

As Cox J noted in DPP Reference (No 1 of 1992) (1992) 60 SASR 255 at 256, paragraph (a) of the definition reflects substantially the ordinary meaning of the word and paragraph (b) extends its meaning considerably so that it is not restricted to conventional roads and thoroughfares.

The layout and use of the vineyard is now very similar to that which existed at the time of the accident and had existed for some years before.  I have regard, of course, only to the position before and at the time of the accident.  The vineyard roads and the headlands are all within the vineyard which is private property owned by Hardy.  The eastern boundary of the vineyard has an extensive frontage to the main Naracoorte to Padthaway road.  There is an old fence which marks the boundary between the vineyard and the road reserve.  There are two entrances from that road into the vineyard.  The entrances are wide and are sufficient to enable vehicles entering and leaving the vineyard to pass one another.  Neither entrance has a gate or a grid.  From the main road, there is no barrier to access by the public into the vineyard by either of the two vineyard roads. The remaining three boundaries of the vineyard are fenced.  The two vineyard roads cross the vineyard from east to west.  On the western boundary each of the vineyard roads has access on to a road called Grubb Road.  Each access point is quite wide and, again, allows vehicles entering and leaving the vineyard to pass.  However, there is a gate on each of these access points.  At the time of the accident, those gates were usually padlocked on weekends.  On the northern boundary there is a gate on to McBride’s Road.  At the time of the accident, the gate was usually kept shut and padlocked at all times.  At the time of the accident, there were no signs stating that the vineyard is private property nor was there any sign prohibiting entry.

Viewed from the main road between Naracoorte and Padthaway, the vineyard roads looked like many macadamised roads which might be seen in country areas, although it was quite apparent that the vineyard roads were on private property.  For some time before the accident, the vineyard roads and the headlands were frequently and continuously used by employees of Hardy performing all kinds of tasks in the vineyard.  They were also used by independent contractors working in the vineyard and their employees.  All of those employees used a variety of vehicles, including cars, utilities, tractors, motor cycles and other plant or equipment.  In addition, the vineyard roads and headlands were used by casual employees and occasional visitors.  On occasions friends and members of family of both casual and full time employees would call to see them in the vineyard.  There was no rule preventing visits to employees.  In addition, people would come to visit and inspect the winery.  These visits were, as a general rule, made by other vignerons or winemakers and arranged with the manager of the vineyard.  On rare occasions, there might be an organised tour by prior arrangement with the manager.

The Statutory Definition

Paragraph (a) of the definition is intended to refer to areas laid out or constructed as roads, streets and thoroughfares which are commonly used as such.  I do not think that paragraph (a) is intended to include a road constructed on private property.  It is common, particularly on farming properties, to find a road or thoroughfare, sometimes a long road, providing access from a public road to a house or sheds on the farm property.  Similarly, there are roads or thoroughfares, often paved, on many industrial and commercial properties.  They are not roads or thoroughfares in the conventional sense and do not fall within paragraph (a), although, depending on circumstances, they might be roads as defined by paragraph (b).  I do not think, therefore, that the vineyard roads are roads within the meaning of paragraph (a) of the definition.

Paragraph (b) extends the definition. It recognises that there are roads, streets or thoroughfares on private property which are so frequently used by the public that they will be regarded as public roads for the purposes of the Act. It recognises also that there are other areas which are used as roads with sufficient frequency that they should be classified as public roads for the purposes of the Act. The question is whether the vineyard road is a road falling within paragraph (b) of the definition. It is, of course, important when applying statutory provisions of this kind, to have regard to the purpose of the statute. Jacobs J discussed that purpose in Nominal Defendant v Merritt (1988) 48 SASR 278 at 282-283. However, as Cox J pointed out in that case at 289, the definition of "road" must apply in the case of ss9, 102 as well as 116.

Paragraph (b) refers to "any other place which is either commonly used by the public or to which the public are permitted to have access". The expression "any other place" is not to be read ejiusdem generis with the words "road", "street" or "thoroughfare" in paragraph (a) of the definition: Boyton v Nominal Defendant [1980] 2 NSWLR 509; Elliott v Henschke (1984) 36 SASR 481. The expression "any other place" obviously has a wide connotation and it should be given the unrestricted meaning it would normally bear. It is difficult to conceive of an expression with a capacity to signify more widely all places other than conventional streets or roads. It is capable of referring to paved thoroughfares which are not streets or roads in the conventional sense, such as accessways within a carpark; or it might refer to unpaved thoroughfares such as a thoroughfare providing access between a public highway and a farm house; or it might refer to reserves or areas of open space of all kinds; or it might refer to paved areas within large industrial commercial enterprises; or it might refer to a road across private property linking a public road to a winery from which cellar door sales are made. There is no limit as to the kind of place which might qualify as a road other than the two adjectival phrases "commonly used by the public" and "to which the public have access".

The question whether an area is a road has arisen in a relatively large number of cases in Australia, the United Kingdom and Canada. Notwithstanding that they concern statutory definitions of "road" which differ slightly in terms, those cases provide helpful illustrations of the wide variety of circumstances in which an area might be a road. A comprehensive useful review of the decisions is to be found in the reasons of O’Brien CJ in R v Abrahams [1984] 1 NSWLR 491. That review assists in providing an understanding of the meaning of the two adjectival phrases used in paragraph (b). Decisions since 1984 reinforce the principles established by the decisions examined by O’Brien CJ.

The Public

The first question is, what is meant by "the public".  It is convenient to begin with Harrison v Hill (1932) SC (J) 13, where the Court of Justiciary in Scotland had to consider whether a road which provided access from a public highway to a farm was a road defined by s12 of the Road Traffic Act 1930 (UK).  Section 12 defined a road as "any highway and any road to which the public has access".  The road in question was an ordinary farm road.  There was no gate.  The entrance would be barred only when cattle were grazing in the paddock through which the road ran.  Although not a public road in the conventional sense, members of the public not having business at the farm frequently walked on it.  The road was held to be a road as defined.  Lord Clyde, the Lord Justice-General, explained the meaning of the words "the public" in these terms:

"I think that, when the statute speaks of "the public" in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farm house or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways".

As this discussion indicates, the public is not limited to the motoring public, so that it is not necessary that the common public use or permitted public access should be by vehicles: see also Nominal Defendant (SA) v Merritt (1988) 48 SASR 278.

The decision in Harrison v Hill was referred to with approval by the High Court in Schubert v Lee (1946) 71 CLR 589 where the question was whether a T-shaped lane which went off a public street was a road as defined by the Road Traffic Act, 1919 (WA) which, by s4, defined a road to mean and include "any street, road, lane, thoroughfare, footpath or place open to or used by the public". There was evidence that the lane was regularly used by the public although not dedicated as a public road. In a unanimous judgment the High Court said (at 593):

"The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public - as distinct from the use by licence of a particular person or only casual or occasional use.  It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises."

There is little difference between the test ain Schubert v Lee and that in Harrison v Hill. But the distinction between the public generally and a special class constituted by those who use the land for a business or social purpose does not provide a touchstone of universal application to decide whether a place is a road. It does not necessarily assist where there is a constant and frequent use of the place by a significant number of persons who are there for a business or social purpose. Nor does it assist in those cases where private land is made available for use by the public on particular occasions. These issues have been the subject of a number of decisions. The decisions provide a guide as to what is meant by the adjectival phrases in paragraph (b) of the definition in the Motor Vehicles Act.

Commonly Used by the Public

The ordinary meaning of the expression "commonly used by the public" denotes constant and frequent use of an area by the public generally. The question whether a place is commonly used by the public is essentially a question of fact; the test is simply, has the place been commonly used by the public?: Marklew v Allen (1974) 9 SASR 32 at 33-34 and Schubert v Lee (supra) at 592.

There is a difference of judicial opinion whether the use must be lawful.  In Harrison v Hill (supra) at 16 Lord Clyde expressed the view that the use must be lawful.  He said :

"I think also that, when the statute speaks of the public having "access" to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it.  It is, I think a certain state of use or possession that is pointed to.  There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed - that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs.  I include in permission or allowance the state of matters known in right of way cases as the tolerance of a proprietor.  The statute cannot be supposed to have intended by public "access" such unlawful access as may be had by members of the public who trespass on the property of either individuals or corporations."

That view was not shared by Wells J who, in Marklew v Allen (supra) at 34 said that the use by the public need not necessarily be of right, or lawful, or without occasional opposition or objection.  It is unnecessary for the purposes of this case to pursue that issue.  It is clear, however, that the fact that a road may be closed on a number of occasions to prevent the assertion of a public right by prescriptive use or otherwise does not necessarily prevent the conclusion that the road is a road within the meaning of the Act:  Harrison v Hill (supra) at 17 and Marklew v Allen at 34.

As the decisions in Harrison v Hill and Schubert v Lee indicate, it may be necessary to distinguish places open to the public generally from places left open but which are obviously intended only for the use of persons for business or social purposes.  That proposition serves to emphasise that the issue involves a question of fact.  Thus, there is an obvious distinction between private houses which are visited only occasionally for business purposes and areas such as a carpark or forecourt which adjoins retail or commercial premises and which is constantly used by those coming to those premises.

In this context, the fact that the premises are visited or used only by those members of the public who desire to go there does not necessarily mean that the place is not commonly used by the public, so long as the premises are open to the public generally and without distinction. In other words, it is not necessary that all segments of the public will come to or use the place. What is required is that the place is available to the public without discrimination, and a segment of it in fact enters or goes on to the place, and entry is not limited to a restricted class. If those criteria are satisfied, the place will be available to the public even if a fee must be paid. I respectfully adopt the observations of Glass JA in Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 735:

"I would assume that the class is relevantly defined by the test whether the premises are open indifferently to any member of the public without any discrimination.  Moreover it would not matter according to the definition if entry is made dependent upon payment of money or the compliance with other conditions but that is not material here.  Applying that definition to the evidence which establishes that any member of the public during the period in question was free to enter and walk about I would find as a matter of fact that the Sandgate Fruit and Vegetable Market at the relevant time fell within the statutory description.  Certainly I do not think that it ceased to be open to the public as such because only those citizens minded to buy fruit and vegetables were likely to enter.  After all a public baths would not cease to be a place open to the public because only swimmers entered nor would a museum cease to be open to the public merely because its exhibits had an appeal to a limited class only."

So, a caravan park is a place to which the public are permitted to have access. Caravaners, campers and guests are members of the public and not a special class of members of the public, even if they have to satisfy modest conditions for admission: DPP (UK) v Vivier [1991] 4 All ER 18 at 24; R v Sweeney [1984] 1 Qd R 628. The place will not be available to the public if there is some restriction on access by, say, membership of an organisation or other criterion for selection. One criterion to assist in deciding whether the use is by a special class of the public is whether entry is permitted because of some characteristic which is personal to themselves - if people come to a private house as guests, postmen or meter readers, they come for reasons personal to themselves, to serve the interests of the occupier - or whether they are members of the public who seek entry for their own (rather than the occupier’s) purposes but must satisfy conditions for entry such as payment of a fee: DPP v Vivier 18 at 24. It would seem that there must be an element of contemporaneity in the use to be made of the place. Thus, a past use will not necessarily result in the place being a road: Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459 at 464, where it was held that a bush track in the Northern Territory, which was sparsely used, was not a road.

Applying these principles, the following places have been held to be roads. A hotel car park: Elkins v Cartlidge [1947] 1 All ER 829; R v Waters (1963) 47 Cr App R 149; R v English [1970] 1 OR 788; Sandy v Martin [1974] RTR 263; R v Abrahams [1984] 1 NSWLR 491; Marklew v Allen (1974) 9 SASR 32; the forecourt of an hotel: Bugge v Taylor [1941] 1 KB 198; a carpark for shops including a multi-storey carpark: Ex parte Halliday (1893) 14 LR (NSW) 421; Reid v Nominal Defendant (1968) 88 WN (Pt 1) (NSW) 601; Cutter v Eagle Star Insurance Co Ltd [1997] 1 WLR 1082; the driveway and forecourt of a service station: Montgomery v Loney [1959] N.I. 171; O’Mara v Lowe; Ex parte O’Mara (1971) 27 LGRA 284; Atkins v Flack (unreported, Supreme Court of NSW, 24 September 1976; cited in R v Abrahams (supra) at 536); Doherty v Barbaric (unreported, Supreme Court of NSW, 8 March 1982, cited in R v Abrahams (supra) at 536); Dowling v Nominal Defendant (1975) 6 ACTR 17; roadways within a drive-in theatre: Dobell v Petrac [1961] VR 70; a wharf: Urwin v Duperouzel [1960] WAR 216; a quayside: Newcastle Upon Tyne Corporation v Walton (1957) Crim L R 479; a lane: Schubert v Lee (supra) and compare Cubbage v Boyland [1960] WAR 161; a caravan park: DPP v Vivici (supra); R v Sweeney (supra); a public reserve: Hyde v Kenyon (1957) 74 WN (NSW) 185; Nominal Defendant v Merritt (supra). There are decisions holding that the forecourt of a shop and a service station are not roads: see, for example, Thomas v Dando [1951] 2 KB 620 and Marsh v Arscott [1982] Crim L R 827. Those cases were decided on their own particular circumstances and the decisions are another reminder that the question whether a place is commonly used by the public is a question of fact.

The other places which have been held not be a road because they were not commonly used by the public are a carpark for a block of residential flats: Winbank v Baker (1993) 112 FLR 466; and a carpark used by members of a bowling club: Griffin v Squires [1958] 1 WLR 1106; and a courtyard some distance from a road: Purves v Muir [1948] SC (J) 122. In Elliott v Henschke (supra) it was held that a large clay pan near a country town used by motor cycle riders for recreational riding was not a road but the decision was decided on the narrow evidentiary point that it had not been proved that the public commonly used the area. The decision was criticised in Nominal Defendant v Merritt (supra) at 284. A road in a housing estate, used only by those who reside on the estate or their visitors, and not by the public generally, has been held not to be a road: Deakin v AT (a minor) [1976] RTR 244; see also Lock v Leatherdale D C [1979] RTR 201. But the issue depends very much on the facts and circumstances of each case and, in particular, on the extent of the use by the public: see also Adams v Commissioner of Police (1980) RTR 289 and Cox v White (1976) RTR 248. The latter decision concerned a road in an industrial estate. Lord Widgery CJ referred to the observations of Lord Sands in Harrison v Hill (supra), where His Lordship said:

"In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied."

Lord Widgery added that that direction would resolve 99 cases out of 100.

The vineyard roads are used only by employees in the vineyard, independent contractors doing work in the vineyard and their employees, persons visiting employees in the vineyard (but on an infrequent basis), and visitors to the vineyard.  The visitors are limited as a general rule to persons who are expressly invited to the vineyard.  On relatively rare occasions, a few persons may visit without an express invitation.  Thus, those who mainly use the vineyard roads are in the vineyard for a purpose which is expressly permitted.  They are particular classes of persons which can be readily distinguished from the public.  The vineyard does not advertise itself as being open to the public and I find it is not open to the public generally without discrimination.  For these reasons, I find that the vineyard roads are not commonly used by the public.

Permitted Access

The next question is, what is meant by the expression "any other place… to which the public is permitted to have access"?  On one view, members of the public are permitted to have access to any property for a lawful purpose.  Owners of property are willing to permit those who have a legitimate business, social or other purpose to come on to their land and to use the thoroughfare on that land.  The permission is implied, not express.  But the expression cannot be intended to have such a wide meaning as to include all private property. 

The expression is intended to refer to two kinds of use of land.  The first use would also satisfy the expression "commonly used by the public", namely, areas such as carparks for shopping centres, hotels and other premises used by the public generally.  There is an implied permission to use those carparks for those visiting or conducting business at premises of that kind. The second refers to land usually but not necessarily in private ownership, where the owner permits the land to be open to the public on particular occasions.  Two instances from decided cases illustrate this kind of permitted public access.

In each case, the question was whether the person was driving a motor car on a road while under the influence of liquor. In Paterson v Ogilvy [1957] S.C. (J) 42 the facts were as follows. For the duration of the Royal Highland Show, a private field adjoining the showground was used as an official carpark. An admission fee was charged. The field was ordinarily used for the grazing of sheep. There was only one gateway which was used for both entry and exit. There were no roads or tracks through the field. It was held that the field was used by the public who had been invited to it and was, therefore, a road. The court held that, although the payment of the admission fee caused a degree of selectivity, the invitation to the public was sufficiently wide to cause the field, when used as a carpark, to be a public place. The decision in R v Collinson (1931) 23 Cr. App. R 49 was to similar effect. In that case a field, which was usually farmed, was used for point-to-point racing. Pedestrians were admitted to the field free of charge, but an admission fee was charged for cars. There was evidence that there was a crowd of about 2000 present. The jury found that the field was a road on that day, and its decision was upheld.

These two decisions illustrate another principle, namely, that a place may be a road for some occasions but not on others.  See also Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd (supra), where a roadway within a market area was held to be a public road on those occasions when the market was open to the public, but not on others.  See also Marsh v Ascott [1982] Crim LR 827.  In Gray v Purvis (unreported, 16 January 1992, Olsson J) a large paddock on a private farm property used for car parking for a ball was held not to be a road.  The decision turned on the fact that admission to the ball was not available to the general public.

Hardy did not expressly permit the public to have access to its vineyard.  Despite the fact that there were no gates or barriers to access to the two vineyard roads which allowed movement to and from the main road between Naracoorte and Padthaway, I do not think it is possible to find that there was any implied permission.  It was readily apparent that the land was privately owned and used for vineyard purposes.  Apart from gateways and entrances, the land was surrounded by a fence.  The land had all the hallmarks of other private land in the area being used for the purposes of primary production, in this case growing grapes.  The use of the vineyard roads by employees, independent contractors and their employees and infrequently by persons visiting employees and by other visitors was a use by special classes of the public. They were permitted to use those thoroughfares because they were employees, independent contractors, employees of independent contractors or visitors to those employees.  In the case of most visitors to the vineyard, they had express permission.  For these reasons, the vineyard roads were not places to which the public were permitted to have access.

Not a Road

For these reasons, the vineyard roads do not fall within either paragraph (a) or paragraph (b) of the definition. It follows that they are not roads as defined by the Motor Vehicles Act. It also follows that the plaintiff fails as against the Nominal Defendant.

The Plaintiff’s Injuries

There is no real dispute about the extent or severity of the plaintiff’s injuries, the degree of recovery from them, and the extent of his residual disability.  There was little debate about his future prospects.

The accident caused the plaintiff to be thrown from the motor cycle.  His head appears to have struck a hard object since he suffered a severe head injury, namely, a right parietal depressed skull fracture with swelling of the underlying brain.  He was deeply comatosed by these injuries.  That was the only significant injury suffered by the plaintiff.  He also suffered minor cuts and abrasions. After the accident, he was taken to the Naracoorte Hospital.  Later that day he was transferred to the Adelaide Children’s Hospital as it was then called.  Immediately on admission to the Children’s Hospital he underwent surgery to elevate the fracture.

He remained unconscious for six days.  When he gained consciousness, he did not immediately regain his cognitive skills.  At first, he did not recognise the woman who had been tending to him for some days.  On 26 November he was discharged from the intensive care unit. He was able to look around on the seventh day.  He began to vocalise after about two weeks.  He then passed through a period of agitation. By the end of the first month he could speak, but in a confused way.  He was still generally confused.  He was discharged from the hospital about a month later on 23 December 1988 but he was then still affected by the severe injury to his brain.  He then had a severe weakness on his right side and a severe speech disorder.  He was unable to stand or walk unsupported.  He was moved in a wheelchair. 

On discharge from hospital, he returned home where he was nursed by his mother. He made good progress in recovering from his injuries.  After about two weeks, he was able to dispense with the wheelchair.  However, he had to use a walking frame to assist in standing and walking.  He was able to do without the frame after about six weeks.  In the weeks following discharge from hospital, his movements were particularly jerky suggesting spasticity.  At first, his mother had to feed, wash and dress him.  He had difficulties with mental functions and acted like a baby when being fed.  He was verbally aggressive to his mother and others.  His speech was very slurred and sometimes incoherent.  He was often difficult to understand as he would use a wholly inappropriate word in the middle of a phrase.  However, he made good progress and his recovery was sufficient that by early February 1989 he was able to walk unassisted.  By then his speech had considerably improved and he wished to return to school. 

When examined in July 1989 he still had noticeable weakness on his right side and his right hand was also weak.  His gait was unsteady and his speech was still slurred.  He continued to be difficult to understand.  He had a poor level of concentration.  By January 1990 he had made considerable improvement.  By then he walked reasonably well but still with an unsteady gait.  A degree of jerkiness remained in movements of the right limbs.  His speech had then improved.

The plaintiff’s mother was anxious that he return to school as soon as possible after the accident.  She persuaded the school authorities to allow him to return to Naracoorte High School in February 1989.  The plaintiff was then in Year 10.  She drove him to school for the first two to three days but thereafter the plaintiff travelled to Naracoorte in a school bus.  At school the plaintiff had learning difficulties.  His right hand was virtually useless.  At first, he had a lot of difficulty.  He had difficulties in concentrating and mastering all subjects for any length of time. His difficulties slowly abated but his learning skills were nevertheless affected.  He was permitted, however, to progress without examination through each year of schooling and was in Year 12 when he left school in 1991.

In the middle of 1990 the plaintiff went to live with his maternal grandparents who reside in Naracoorte and has lived there for most of the period since.  His mother then worked and still works in a dental surgery at Naracoorte and saw him on most days. On occasions, he has resided for short periods with his natural father who also resides at Naracoorte.

The plaintiff’s disabilities made him vulnerable at school.  Some children at the school bus made fun of him causing him distress.  At school he was punched or pushed over from time to time until he acquired two friends who acted as some kind of protectors for him.  In his first year, he frequently fell over.  Sometimes he would lose balance and fall down stairs.  His mother was called to the school frequently to take him home.  He spent a lot of time in the school sickroom suffering from headaches.

The plaintiff received physiotherapy treatment at Naracoorte for the first two to three years after the accident.  Initially, treatment was several times a week and thereafter it was on a twice weekly basis for some time.  The physiotherapy ceased when it was considered there was no further utility in providing that treatment.  He also underwent some chiropractic treatment for a time but without any noticeable improvement.

In 1990 the plaintiff complained of pain in both his hips, his right knee and left ankle. In mid-1990 he was examined by Mr A Sutherland, an orthopaedic surgeon, who noted that the plaintiff had an ataxic uncoordinated gait.  Mr Sutherland concluded that there was no specific cause for the discomfort of the joints other than the extra stresses caused by the manner in which the plaintiff walked. 

The brain damage has caused a weakness and spasticity of the right hand.  One particular problem is that the little finger of the right hand is permanently extended and consequently catches in clothing, gets in the way or otherwise interferes with different kinds of activities.  In 1992, Mr Saies, an orthopaedic surgeon, operated in an attempt to correct this condition.  The plaintiff’s hand was in a cast for a period of weeks and then in a splint.  However, the surgery did not remedy the disability which will be permanent.  The plaintiff’s little finger on his right hand will always be a problem.  The plaintiff straps it down to prevent the extension.  He has asked to have it amputated but his medical advisers do not recommend that course.  The plaintiff has difficulty in raising his right arm above the shoulder.

Although he has suffered minor head injuries in two accidents, when aged 3 years and 14 years, before this motor cycle accident, there is no suggestion that they were severe enough to cause any brain damage.

The plaintiff has suffered a severe injury of a generalised type.  I find that his neurological and physical disabilities are permanent.  This injury has resulted in both intellectual and physical disability.  His intellectual deficits are manifested in several ways.  He has retrograde amnesia of a period of about two to three weeks prior to the accident and of course has no memory of the accident.  He had post traumatic amnesia of a period of four to five weeks after the accident. His first memory after the accident is Christmas Day 1988.  He also has a poor memory, in particular, a poor short term memory.  He frequently forgets routine things.  For example, he will forget to turn off electrical appliances he has been using such as an iron, electric stove or fry pan.  On occasions, he forgets that he has food cooking.  He has tried to keep a diary to assist his memory but, as he was inclined to lose it, he no longer keeps a diary.  He does, however, have a relatively good memory for things in which he has a particular interest.  Although there is a suggestion of a poor memory before the accident, I am satisfied that his present poor memory is a result of the injury to his brain.  Because of his poor memory, he requires a slight degree of continuous supervision, although it need not be close or continuous.

The plaintiff has a very short attention span.  His school reports suggest that he had a short attention span before the accident.  I am satisfied this condition was exacerbated by the injury.  As might be expected, his level of concentration is good if he is interested in the subject matter of his attention. The plaintiff has average skills of mental arithmetic.  He is able, for example, to check that he has the correct change when shopping.  He is able to undertake routine shopping tasks, run messages, and conduct simple banking tasks but all of these activities require supervision at a low level.  He was able to learn basic employment skills and has a particular interest in screen printing.  He has a desire to establish a screen printing business but his disabilities point to the conclusion that this is not a realistic proposition.  He could only undertake that trade if, say, he had a sympathetic partner with financial and management skills.

Although the plaintiff initially had severe speech difficulties, which continued for about twelve months, he now has no major speech difficulties.  However, he still suffers and will, in all likelihood, continue to suffer a speech impediment which causes a degree of slurring of speech. This slurring is more likely to occur when he is tired.  On occasions the slurring makes it difficult to understand him and closer than the usual attention is required to follow what he is saying.  If asked, he is able to repeat something or correct himself.  His speech impediments are not a bar to effective communication.

The plaintiff’s physical disabilities are most manifest in motor dysfunction on the right side of his body.  He suffers from weakness of the right facial muscles, right arm and right leg. He has abnormal postures of the right finger and wrist and of the right arm and leg.  His reflexes are abnormal in the right arm and leg and in both feet suggesting bilateral damage to the brain centres controlling leg function.  He can walk and run reasonably well.  However, he has a noticeable limp and unsteady gait when walking and running. On occasions he tends to drag his left leg.  The problems in his gait relate to spasticity of both legs, especially the right leg, and weakness in his right leg.  His difficulties when walking cause him to tire easily and he has found that on occasions his heart will palpitate in an alarming way.  He has difficulty walking except for short distances.  In 1990 he was examined by a cardiologist but no abnormality was detected.  These palpitations are probably a cardiac reaction to the fatigue caused by his reduced physical capacities.  He continues to suffer pain in his hips and ankles which are caused by his physical disabilities.  His right leg is one-half to one centimetre shorter than the left leg and this also causes his unsteady gait.  The plaintiff has had orthotics fitted in his shoes but this was an unhappy experience.  I accept the evidence of Dr Fleet that his gait will not improve to any significant degree if his right shoe were built up in some way.

The plaintiff has difficulty when standing.  He finds that on occasions he is inclined to shuffle backwards and then fall over.  He, therefore, prefers to stand with something to provide support from the rear.  He has reasonable balance, however, and is able to ride a bicycle, albeit with an occasional fall. 

The plaintiff has a permanent weakness and residual spasticity in the right hand.  He has a significant impairment in his capacity to undertake fine movements in the fingers of that hand. There will be a permanent reduction of about 40 per cent in fine movement in the right hand and fingers. He was right handed before the accident.  He has taught himself to do many things, including writing, with his left hand which is now used for most everyday activities, his right hand being auxiliary to the left.  His right hand is noticeably smaller than his left hand.  The particular difficulty with his right hand is that his little finger is permanently extended and catches in things.  He avoids that by strapping it down. He is still able to draw and paint with the right hand.  He has reasonable skills as an artist.  The disabilities with his right hand do not prevent him from engaging in screen printing.

The plaintiff still suffers from severe headaches, which might occur about twice in each month. There is no serious likelihood that the plaintiff’s condition will markedly deteriorate and there is no reason to believe that he should not enjoy a normal lifespan.

The plaintiff’s neurological, physical and intellectual disabilities do not preclude him from employment in a restricted number of unskilled and semi-skilled occupations, albeit that in some he would require a degree of supervision at a low level. His physical disabilities are such that he could only be employed in light work.  His poor memory would require supervision.  He would need to find an employer sympathetic to his disabilities. The abnormality and weakness in his right leg would cause him to tire easily if the employment involved long periods of standing or walking.  The disabilities with his right hand and right arm would cause him to be slower than others in performing manual tasks.  However, he gives the impression of being a determined young man and, if suitable employment could be found with a sympathetic employer, he would be a good employee. 

The plaintiff was an average student before the accident.  He is now at the low end of the average range of intelligence.  At school, he displayed symptoms of an inability to concentrate and was said to be talkative in class.  The same might be said of many children.  I find that there is no reason to believe that he would not have been able to obtain employment in unskilled and semi-skilled occupations.  He has completed work experience in a crash repair shop and has undertaken with reasonable success a TAFE course in horticulture and viticulture.  If the employment history of siblings is any guide, his older brother has been fully employed in clerical positions.  The medical evidence indicates, and I find, that the injury has significantly impaired his physical and intellectual abilities.  It is unnecessary to examine this issue in detail as the claim for economic loss proceeds on the footing that he would have found employment in a semi-skilled occupation and I so find.  Even with his disabilities, there is room for guarded optimism that he could be employed under supervision in a limited range of unskilled or semi-skilled occupations.  However, the reality is that with current levels of unemployment he would be unable to find employment.

The plaintiff has demonstrated that he is able to live in the city in supervised accommodation.  He has participated in two rehabilitative workshops at Payneham.  It appears that he was able to find his way with reasonable ease around metropolitan Adelaide.  He is clearly capable of finding his way around a country town like Naracoorte.  However, he has a strong dislike of living in the city and would prefer to live in a country town.  It is, therefore, unrealistic to expect that he would be able to find employment in a sheltered workshop in metropolitan Adelaide.  He has not been offered any employment in a sheltered workshop in the south east of the State.  Dr Flett recommends, and it is common ground, that the plaintiff should continue to reside in Naracoorte where he has security through living in familiar territory and has friends and family to support him.

For these reasons, I assess the damages for economic loss on the footing that his injuries have caused him to become unemployable. 

Before the accident, the plaintiff was physically active.  He played cricket, football and basketball.  He competed in the Little Athletics competition.  He had a number of friends and frequently engaged in activities with them after school and at weekends.  He had been learning the piano for some years and it seems he could play popular tunes with reasonable proficiency.  He had begun to learn to play the guitar.  He was a member of the local Scout group.  He was an active, healthy fourteen year old boy.  He had a lot of friends at primary school and at high school before the accident.  Despite his disabilities, he is still able to have a number of friends.  As a result of his injuries, he is now unable to play most sports or play the piano and guitar. His recreational pursuits are quite limited.  He plays eight-ball and regularly plays in a competition. He enjoys listening to music.  He has a collection of compact discs.  He does not hold a driving licence.  He intends to seek one after this action has been resolved.  His disabilities are such that in all likelihood he will have great difficulty in obtaining a driving licence. 

The plaintiff has little to occupy his day.  He assists his mother in her employment by collecting and posting mail, running messages and undertaking banking as instructed.  He is visited by friends and some of them take him for drives in and around Naracoorte.  He is vulnerable to exploitation.   Some so-called friends have taken advantage of him and it has been necessary for his grandmother to intervene and to seek assistance in recovering articles such as record players which had been "borrowed" from him.  He listens to music and draws.  He watches videos.  He assists his grandmother with tasks about the house including lawn mowing.

The plaintiff experiences a great deal of depression and, on occasions, anger as a result of his frustration with his disabilities. He occasionally succumbs to teasing over his impaired walking.  He sometimes over-reacts to trivial issues. But he gives the appearance of being philosophical about his plight and determined to make the best of it.  When frustrated with his disabilities, he plays music and talks himself out of his depression.  Most medical advisers he has consulted describe him as a very pleasant and cooperative young man and I so find.  It is clear that he is well liked by his peers.

The plaintiff has a relatively high degree of functional independence in respect of his capacity to care for himself and his daily living activities.  At one stage he was inclined to dress inappropriately, wearing warm clothing on a hot day and light clothing on a cool day.  That disability seems to have gone.  He is able to perform most daily routine tasks.  He can wash, clothe and feed himself.  He can make his own bed.  He can wash and iron his own clothes, although these tasks can be accompanied by a degree of difficulty and supervision is required.      Although he is able to perform routine shopping and banking tasks, he requires a degree of supervision with both.  He has not developed skills sufficient to be responsible for independently managing his banking and lacks sufficient skills in financial management to carry them on independently.  He requires assistance with budgeting.  His mother and his grandmother provide advice on these matters.  He will always require a level of supervision in the more complex tasks of living.  Dr Flett, a physician practising in the area of rehabilitative medicine, believes that he is capable of almost fully independent living but would require a degree of supervision at a low level by either an empathetic partner or trusted friend, who would either live with him or visit frequently.  In my view, if that person did not live with the plaintiff, daily visits would be desirable, and for several hours in each day.  The plaintiff can cook simple meals but does not have adequate knowledge of cooking and meal preparation.  He has inadequate awareness of safety in the home.  He is still forgetful when using electrical appliances and will leave them on.  Dr Flett recommends that the plaintiff should have housekeeping help twice a week for six to eight hours in each day.  That person would plan weekly meals, prepare a shopping list, pre-cook and freeze meals, check that cleaning and laundry tasks are done, assist him in arranging for payment of accounts and advise on financial and other matters as they arise.  The plaintiff has been receiving a Social Security pension since 1992.  His spending needs to be supervised.  He is prone to impulse buying.  Unless supervised, he may spend the whole pension in the first week.

The plaintiff dislikes using a microwave.  Dr Flett’s proposals as to cooking involve the use of a microwave.  I accept his recommendations, save for those concerning preparation of meals.  This has the consequence that housekeeping assistance in the form of cooking may be necessary for three to four days in each week but it would not be necessary for the helper to be available for six to eight hours in each day.  Instead, four to six hours would suffice.

It is possible to provide a number of electrical appliances equipped with thermostats (for example, electric frying pans) or cut-off switches (for example, electric jugs) which would improve the level of safety in his home.  Domestic heating could be provided by heaters such as Dimplex heaters, which also are fitted with thermostats.  Smoke detectors would also assist in providing domestic safety.  It was submitted that the use of time switches and other similar safety devices would overcome the potential difficulties with the plaintiff’s forgetfulness to turn off electrical appliances.  Unquestionably, they would alleviate the problem.  However, they are not a suitable substitute for supervision.  There will always be a significant risk of his failure to turn off appliances, and the potential for damage and personal injury is too great to consider them as a suitable substitute for supervision.

To summarise, the plaintiff will need help with planning, preparing and cooking meals;  cleaning his living quarters;  laundry, including ironing;  checking on his personal hygiene;  preparing shopping lists;  budgeting and general and financial supervision.

Non-Economic Loss

The plaintiff has plainly suffered a very severe brain injury which caused serious and permanent disability.  If is not, of course, the most serious form of disability but is at the upper end of the scale prescribed by s35A of the Wrongs Act.  The plaintiff has had to suffer a great deal and will continue to suffer a considerable disability for the rest of his life.   He is now aged 23 years. His awareness of his disabilities not infrequently leads to depression.  Every day will tend to be a struggle for him.  For the purposes of s35A, I fix 50 as the number on the prescribed scale.  The agreed multiplier is 1070.  I assess damages for non-economic loss in the sum of $53,500.

Past Economic Loss

But for his injuries, the plaintiff would have been capable of performing unskilled and semi-skilled work.  He left school in December 1991.  He would have shared the difficulties many young people face in securing employment, and those difficulties are no less in country areas.  He has lost the opportunity of being able to secure employment.  The plaintiff tendered evidence of two awards, one for employees working at Metro Meat’s abattoir in the South East and the other for vineyard workers.  The first defendant tendered evidence of four rates of remuneration in four unskilled occupations; a driveway attendant, a night filler in a supermarket, a screen printer and a courier.  The gross weekly wages available for those six occupations for the years 1992 to 1996 range between
                   $      $

1992         200   -       368

1993         250   -       384

1994         283   -       392

1995         345   -       400

1996         357   -       408

It is reasonable to conclude that the plaintiff could have earned a wage which approximated the average of those wages, particularly as, in the initial years, the wage paid to a vineyard worker was noticeably less than the wages paid in the other five occupations.  On this footing, the net annual wage in those years which could have been earned by the plaintiff would have been approximately

1992 $13,500
                  1993 $14,000
                  1994 $15,000
                  1995 $16,500
                  1996 $17,000

I regard these rates as relatively conservative.  No allowance has been made for the fact that the plaintiff might have been able to advance to a higher level of remuneration.  The evidence tendered by the first defendant of wage rates shows that there are other relatively unskilled occupations where higher rates of remuneration are available.  He has lost the opportunity of gaining employment in the first five years between leaving school and the trial.  However, it would be unrealistic to expect that the plaintiff would have obtained employment immediately on leaving school.  To allow for the time in securing employment and the risks in obtaining it, I assess pre-trial or past economic loss for a period of four years at a net wage of $15,500 per annum.  I, therefore, assess past economic loss in the sum of $62,000.

Future Economic Loss

The plaintiff’s determination to overcome the handicaps he has had to endure in consequence of this accident suggests that he would not have been content to remain in one position but would have sought advancement.  In my view he is a well motivated young man who, but for the accident, would have sought to exercise his earning capacity to its fullest extent.  But there were limits on his capacity to obtain more than a semi-skilled job. It is not unreasonable to calculate his future economic loss on the footing that he would have been capable of earning not less than $525 gross per week or, say, $425 net per week.   Adopting an interest rate of five percent, the multiplier to age 65 years is $910.  This would produce a loss of earnings in the sum of $386,750. 

Some deduction should be made for his residual earning capacity.  However, realism dictates that it should be very slight.  His physical disabilities and his difficulties with speech are such that he is unlikely to earn more than a slight amount in each year from work incidentally obtained.  It is unrealistic to expect that he will be self-employed and any work he will obtain will require a sympathetic employer.  I would, therefore, make a deduction of $11,500.  Allowing for other contingencies, including a period of unemployment, I assess future economic loss in the sum of $325,000.

Cost of Future Care

It will be necessary to provide for the cost in the future of care and assistance for the plaintiff with the preparation of food, cleaning, laundry, financial and other supervision.  In order to avoid double compensation, the cost of providing that assistance should not simply be added to the claim for future economic loss.   I think that the costs as estimated by Ms T F Johnson are slightly conservative.  In addition, it is necessary to add the cost of general and financial supervision.  I assess the future cost of care and assistance to the plaintiff at the rate of $125 per annum.  I add a further $1000 per annum for the cost of employing a person to perform household maintenance.  This equates to about $140 per week.  These services will have to be provided until death.  I adopt the multiplier of 964, which assesses the present value of these costs at an interest rate of 5 per cent.  The resulting sum is $134,960.  To avoid double compensation I reduce that sum to $90,000.

It is proposed that Public Trustee will administer the fund constituted by the award on behalf of the plaintiff. The financial services provided by Public Trustee are related to more substantial financial dealings and are less concerned with routine diurnal matters.  I do not think, therefore, that it is appropriate to make any reduction in the costs for the provision of care and assistance in the future which I have just assessed to allow for any financial assistance provided by Public Trustee. 

Special Damages

Special damages are agreed in the sum of $15,275.88.  $11,047 has been paid by the first defendant without any admission of liability.  A balance of $4,270 remains to be paid. 

The Cost of Gratuitous Services

The plaintiff’s mother and grandmother have provided him with an enormous amount of care and attention since the accident, a period of some eight years.  It is clear that both have provided a great deal by way of services, assistance, and attention well beyond what would have been provided in the ordinary course by a mother or grandmother.  In the initial years, his mother had the burden of nursing care as well as taking him to physiotherapy twice a week for several years and taking him to Adelaide for medical treatment and assessment.  In the past six years, his grandmother has assisted by caring for him at her house at Naracoorte and assisting to manage his affairs, as well as teaching him a wide range of skills to make him more capable of independent living.  Grandparents are included in the group of persons whose voluntary services can be considered when assessing compensation for gratuitous services: see s35A(1)(g) and definition of "parent" in s3A of the Wrongs Act, 1936. 

There is no evidence as to the value of those services. All that has been proved is that the plaintiff has paid his grandmother $50 per fortnight for board and lodging. Even if the plaintiff had not been injured, it would have been reasonable for him to have paid board to his grandmother. The plaintiff’s mother was able to return to work in 1990. The plaintiff’s grandmother has cared for him for a number of years. I think that in all the circumstances the appropriate course is to award $20,000 under this head. In doing so, I have regard to the principles expressed in Van Gervan v Fenton (1992) 175 CLR 327.

A Protection Order

As already mentioned, Public Trustee will administer the fund constituted by the award of damages which I will make.  I am satisfied that it is appropriate for the court on its own motion to make a protection order pursuant to s8A of the Aged & Infirm Persons’ Property Act, 1940.  The medical evidence demonstrates that the plaintiff is not capable of managing a sum of money as substantial as that which will be constituted by the award.  I am satisfied also that it is in the best interests of the plaintiff to make such an order.  I make the protection order before the assessment of damages.

Conclusion

The damages payable to the plaintiff are

Non-economic loss   $ 53,500
Past economic loss  $ 62,000
Future economic loss  $325,000
Cost of future care  $ 90,000
Special damages  $ 15,275
Cost of gratuitous services  -----------$ 20,000

$565,775
  _______

That sum must be reduced by 20 per cent, being the agreed apportionment for the plaintiff’s contributory negligence.  The reduction is $113,155 producing the sum of $452,620.  A further reduction of $11,047 must be made for the special damages already paid.  The damages to be paid to the plaintiff, therefore, amount to $441,573.

I calculate the interest on the damages for past economic loss to the date of judgment by reference to the average income lost in each year and compounding it.  There must be a reduction of 20 per cent in each year for the plaintiff’s contribution. Though falling, interest rates have been relatively constant in that period.  I adopt an average rate of 5.5%.  This provides a relatively conservative approach.   I fix interest in the sum of $2,865.

Contribution

I have already held that Wayne Reyne, the third defendant, is not liable in his personal capacity as the father of Darren Reyne.  Thomas Hardy, the second defendant, is vicariously liable in respect of any liability of Wayne Reyne as the manager of the vineyard and Wayne Reyne is not under any liability to indemnify Thomas Hardy: see s27c(1)(a) of the Wrongs Act, 1936.

Stephen Reyne, the first defendant, was driving a motor vehicle the subject of a policy of third party insurance and is, therefore, liable to indemnify Thomas Hardy, his employer: s27c(1)(b) of the Wrongs Act.  Thomas Hardy seeks contribution from Stephen Reyne.  The task of determining the appropriate contribution is difficult.  I have decided that Stephen Reyne should contribute one third and Thomas Hardy two thirds.  Although Stephen Reyne should have been exercising a proper lookout, the dangerous situation in the vineyard had been created by Thomas Hardy and contributed to the accident in a major way.  There will be orders to give effect to these reasons.