Mulligan v Coffs Harbour City Council

[2003] NSWSC 49

Reported Decision: (2003) Aust Torts Reports 81-696

Supreme Court

CITATION:	Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49
HEARING DATE(S):	19/08/02, 21/08/02, 30/08/02, 02/09/02, 03/09/02, 04/09/02, 05/09/02, 06/09/02, 09/09/02, 30/09/02, 01/10/02, 02/10/02, 03/10/02, 08/10/02, 09/10/02, 10/10/02, 11/10/02, 14/10/02, 15/10/02, 16/10/02, 17/10/02, 18/10/02, 21/10/02, 28/10/02, 30/10/02.
JUDGMENT DATE:	14 March 2003
JUDGMENT OF:	Whealy J at 1
DECISION:	I direct the entry of verdict and judgment for each defendant in relation to the plaintiff's claim. I order that the plaintiff pay the costs of each defendant. In relation to each cross-claim, I direct the entry of verdict and judgment for the cross-defendant. I order that the plaintiff pay the costs of the successful cross-defendant in relation to each cross-claim. The Exhibits may be returned.
CATCHWORDS:	Negligence - public authority - shallow diving in creek - breach of duty - obviousness of danger - damages
LEGISLATION CITED:	Crown Lands Act 1989 (as amended) Public Trusts Act 1897 Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Act Workers' Compensation Legislation Marine Parks Legislation
CASES CITED:	March v Stramare (1991) 171 CLR 506 Jones v Dunkel (1959) 101 CLR 298 Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Brodie v Singleton Shire Council (2001) 206 CLR 512 at 576 Barclay Oysters v Ryan (2002) HCA 54 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 South Australia v Wilmott (1993) 62 SASR 562 at 574 Capara Industries v Dickman (1990) 2 AC 605 at 617-618 Woods v Multi Sport Holdings Pty Ltd (2002) 76 ALJR 483 Agar v Hyde (2000) 201 CLR 552 Prast v The Town of Cottesloe (2000) 22 WAR 474 The Mountain Cattleman's Association of Victoria Inc v Barren (1998) 3 VR 302 The Secretary of the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 Waverley Council v Lodge (2001) 116 LGERA 447 at 460 Tame v New South Wales (2002) HCA 35 at para 102 Peere v Apand Pty Ltd (1999) 198 CLR 180 at 249 para 186 Rosenberg v Percival (2001) 205 CLR 434 at 456 para 68 Inverell Council v Pennington (1993) Aust Torts R 81-149 Manly Municipal Council v Boylan (unreported, NSWCA 26 April 1995) Sourakis v Sutherland Shire Council (1992) Aust Torts R 81-149 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Shellenberg v Tunnell Holdings Pty Ltd (2000) 200 CLR 121 Chappel v Hart (1998) 195 CLR 232 per McHugh J at 247 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560-561 at 579-582 The Public Trustee v Sutherland Shire Council (1992) Aust Tort R 81-149 61, 139 Insurance Commissioner v Joyce (1948) 77 CLR 39 Roggenkamp v Bennett (1950) 80 CLR 292 at 300 Beck v State of New South Wales (2001) NSWSC 278 at para 61 Sara v GIO of NSW (1969) NSW WN 203 Hadland v Council of teh City of Blacktown (unreported CA 21 May 1997) Podrebersek v Australia Iron & Steel Pty Ltd (1985) 59 ALR 492 per Gibbs CJ, Mason, Wilsn Brennan and Deane JJ at 494 Griffiths v Kerkemeyer (1997) 139 CLR 161 van Gervan v Fenton (1992) 175 CLR 327 Kars v Kars (1996) 187 CLR 354 at 369-370 Grincellis v House (2000) 201 CLR 321 at 327 Barisic v Devenport (1978) 2 NSWLR 111 at 125 Simpson v Diamond & Anor [2001] NSWSC 925 at paras 848-858 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 52, 54, 57, 62 and 67 Shirt v Wyong Shire Council (1978) 1 NSWLR 631 at 639G
PARTIES :	Garry Sean Mulligan v Coffs Harbour City Council & Ors
FILE NUMBER(S):	SC 20113/00
COUNSEL:	Mr B. Murray QC; Mr J. Meadley - Plaintiff Mr M. McCulloch - 1st Defendant Mr J. Maconachie QC; Mr B. Green - 2nd-5th Defendants
SOLICITORS:	Martin Bell & Co - Plaintiff Phillips Fox - 1st Defendant I.V. Knight - Crown Solicitor - 2nd-5th Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

FRIDAY 14 March 2003

20113/00 - Garry Sean MULLIGAN v COFFS HARBOUR CITY COUNCIL & Ors

JUDGMENT

1 HIS HONOUR: In early January 1999 Garry Mulligan (the plaintiff) and his then partner Jennifer Brady arrived in Australia. They were Irish tourists enjoying an extended holiday throughout India, Asia and Australia. They stayed in Melbourne for about ten days and then went on to Sydney.

2 On 23 January 1999 they travelled to Coffs Harbour by coach and booked into a Backpacker Hostel in the main part of Coffs Harbour. Their plans were to enjoy a few days in this part of New South Wales and then to travel up to the Great Barrier Reef. On the next morning after a leisurely breakfast the plaintiff and Miss Brady obtained a brochure which set out some of the more enjoyable tourist activities for people visiting Coffs Harbour. They decided to walk to the Porpoise Pool, a popular tourist spot, located on the southern bank of the Coffs Creek not far from the point where the creek meets Park Beach. After watching the show they headed down to the beach area, traversing a paved footway which led through the reserve adjoining the southern bank of the creek. The map they had with them indicated the location of both the Porpoise Pool and the beach. They took a well-worn man-made track which led from the paved pathway down onto the southern bank of the creek. The plaintiff said that he was attracted to this area because there were quite a lot of people and quite a lot of activity around the creek. They were able to observe people swimming in this area. They first entered the water at a point quite close to the railway bridge which crosses the creek immediately to the east of Orlando Street. This is a road and bridge structure and also crosses the creek.

3 In this location the plaintiff described the water as being “quite shallow and quite clear”. It was not very deep at all, perhaps knee height. The plaintiff said that he noticed people picnicking on the grass verge area on the northern or opposite side of the creek. He noticed “a lot of people” over on the northern side of what was described as a rock training wall on the northern side of the creek.

4 The plaintiff said that there seemed to be more people down towards the training wall who were “actually swimming properly” as the water seemed to be “quite deeper” in that area. This group of people he said were approaching the water or were in the water from the southern bank. He also noticed other people sitting on the sand or picnicking on the southern side of the creek. People in the water in this vicinity were “submerged in the water, swimming and generally seemed to be having a good time”. His estimate was that there were 15 to 20 people varying in age from quite young to their mid-twenties.

5 Having made these observations, the plaintiff and Miss Brady decided to move further down towards the eastern end of the creek. They took their belongings and walked down towards the area opposite where the training wall was located. They were at this time still on the southern bank of the creek. They put their belongings on the beach opposite the training wall. The plaintiff then proceeded to enter the water at the point near where their belongings had been left. This was approximately “one quarter of the way along the training wall to the east”. Straight away, he noticed that the water was a lot deeper in this particular part of the creek than it had been in the area down near the railway bridge. He took about six or seven steps moving towards the centre of the creek and found that it went from “quite shallow down to his thighs fairly quickly”. He said that he waded in the water until the water came up to his thighs around the bottom of his swimming shorts and he then proceeded to dive into the water. He encountered no problem in doing this. He said that the water seemed to be flowing quite quickly and from where he dived he could not see the bottom although back at the shore it was clear. He dived in, swam under water for a couple of feet and when he came up out of his dive he tested to see how deep the creek was at that point by letting his feet try to touch the bottom. He realised that he was actually in quite deep water and that he could not touch the bottom so he then proceeded to swim, adopting a breaststroke. He realised the current was quite strong and so allowed himself to be carried by the current down towards the sea. This he described as “a pleasurable experience”. He had seen other people in the creek at this point acting in a similar manner and being carried down towards the ocean. As he was carried down with the current he noticed again that it was quite deep in the centre of the creek. He was unable to touch the bottom until he got closer to the sea when he tested the depth again. It was still very deep in the centre and before reaching the end of the training wall he decided to swim towards the beach, that is, the area where the beach and the southern bank of the creek coincide. This helped him to get out of the water and he then proceeded to walk back up on the southern side of the creek towards the area where their belongings had been left. He said that Miss Brady was doing roughly the same thing at the same time. The plaintiff repeated this process over a period of time that he estimated lasted about half an hour. He said that he repeated this process about six or seven times. He described it as follows: -

(Exhibit “R”1 - 72 Q & A 289:)

“On each occasion, I approached the water in the same fashion. I waded in until the water was up to my thighs. I dived in, floated down the creek, then I waded back out at the bottom of the creek and made my way back up the beach again”.

6 The plaintiff also described Miss Brady and himself sitting on the beach in between the swimming episodes having a cigarette and generally enjoying the pleasant weather conditions. Generally, the weather was very warm and quite bright but towards the end of the afternoon he said it started to cloud over and threatened to rain.

7 The plaintiff described the manner of his dive as follows: -

Exhibit “R”1 - 73 Q & A 298:

“Yes, we waded into the water until the water was approximately to my swimming shorts and I launched myself straight forward, my hands in front of me. I got into the water, I’d bring my arms back and I would swim underwater for a couple of feet and come to the surface, just breast stroke and then just let the current take me down the creek again”.

8 He said that on the six or seven times that he did this he did not at any time touch the bottom. He did not notice any debris in the form of submerged logs or anything of that nature in the creek. The water he said was deeper than he expected and there was turbulence in the water towards the sea. The current was running quickly but he did not notice any suspended sand in the water. He was not able to see the bottom of the creek when he was towards the centre of the creek.

9 The plaintiff described the critical dive when he was injured in the following terms: -

Exhibit “R”1 - page 75 Q & A 312:

“I proceed to wade into the water, again the water was up to around my thighs, around my swimming shorts. I launched myself into a dive, I had my arms out in front of me, I hit the water. As I was in the water I would have brought my arms to my side and then I remember just hitting something on the bottom and it felt like sand because I remember I kind of like grazed and I remember just feeling something snap in my head, it seemed quite painful at the time.
When I came to the surface I did not think anything of it straight away but then I realised that I was not able to get my head up above the water and that I could not move. Then I panicked because I could not get my head up out of the water…It was only then I realised that something serious was wrong. I found myself drifting with the current again towards the sea. I do not remember much after that because I presume I passed out.”

10 The plaintiff said that when he hit his head it felt like sand because “it did not hurt too much where he hit his forehead”. The pain however, seemed to be in his neck.

11 The plaintiff was rescued from the waters of the creek by Miss Brady and two men who were nearby walking along the beach. An ambulance arrived about 5pm and the plaintiff was taken to Coffs Harbour Hospital and later by aeroplane to the Prince of Wales Hospital in Sydney.

12 The tragic incident in the creek resulted in the plaintiff suffering a burst fracture of the C4 cervical vertebrae. There was a posterior displacement of that fracture accompanied by undisplaced fracture of the C5. As a consequence of these injuries the plaintiff is a quadriplegic with no prospect of recovery. The only function he has retained below nipple level is some minor upper limb function with some limited shoulder and elbow movement.

13 The plaintiff remained hospitalised in Australia until late April 1999. During this time Miss Brady was in constant attendance upon him at the Prince of Wales Hospital. A number of members of his family came out from Ireland and gave what care support and encouragement they could. He was repatriated back to Ireland by aeroplane on 22 April 1999. It was necessary for him to be brought back on a stretcher suspended from the roof of the aircraft which occupied the space of four economy seats. He was attended by a nurse and doctor for the whole of the trip as well as by Miss Brady and his family. He was admitted to the Mater Hospital in Dublin while he awaited admission to the National Rehabilitation Hospital at Dun Laorghaire. At the latter establishment the plaintiff underwent an intensive period of rehabilitation and eventually in July 1999 he was allowed out for periods of weekend leave. He was finally discharged on 23 December 1999 and has been living with his family at the family home at Donnycarney up until the present time. Essentially, the family have undertaken his care which has proved very difficult and traumatic for all of them. Finally, after some grave frustrations with the local authorities, a number of modifications were carried out to the family home which have provided the plaintiff with his own bedroom and a bathroom off it. The National Health Scheme in Ireland has largely taken up the cost of hospitalisation and rehabilitation in Ireland. However, there are undoubted deficiencies in the Irish Government Scheme which have been detailed in the evidence. I shall return to these matters at a later point in these reasons for decision.

14 With the help of the Irish Wheelchair Association, the plaintiff has had some assistance in the form of a Personal Assistant. This assistance is limited to 44 hours per week. These carers or personal assistants are provided by the Irish Wheelchair Association and they are, in general terms, itinerant young men on holidays who often have no special skill or training. The plaintiff has had three such assistants, they being respectively, a Polish National, an Australian and in more recent times, a Bosnian. During part of the time he has been in Ireland and out of hospital, the plaintiff has been in attendance on Tuesdays and Thursdays at the Rehabilitation Hospital where he has participated in a “back to work scheme”. This is a Government funded Scheme but regrettably, according to the evidence, it was to cease sometime in September 2002.

15 The plaintiff is fundamentally dependant on others for 24 hours a day care. For example, he requires nursing care for the manual evacuation of his bowels. This is undertaken three days a week, normally on Monday, Wednesday and Friday. The entire procedure takes about two to three hours on each day. It is an humiliating and arduous process. In addition, the plaintiff requires assistance to a very marked degree with all of his feeding requirements. His parents watch his evening movements and condition through a baby monitor connected between their bedroom and his.

16 The plaintiff’s health, as might be anticipated, has been subject to a number of serious complications. First, there have been urinary tract infections, secondly, the development of pressure sores and thirdly, a condition known as autonomic disreflexia which is a particularly life threatening condition. It occurs as a consequence of urinary blockage. All these conditions require regular nursing attention. The third condition generally requires urgent hospitalisation. His bladder care is managed by a suprapubic catheter. This catheter maybe come blocked by encrustation and sediment forming on or near it and requires changing on a weekly basis. Once again nursing or medical care is required for this procedure.

17 The plaintiff suffers considerably from spasticity or spasm particularly in his lower limbs and shoulders. In May of 2002, after some considerable delays a surgical procedure was carried out which resulted in the insertion of a Baclofen pump. This has relieved the spasms in the lower limbs but has not relieved the spasm in his shoulders. One adverse consequence in this spasm improvement in the lower limbs has been the tendency for pressure sores to develop on the plaintiff’s buttocks and particularly on his heels and ankles. Although relieved from spasm in the lower limb area, there is now less movement in that area.

18 The plaintiff’s emotional state is understandably less than remarkable. He has come to accept in a way his disability but he is plainly subject to fits of despair and very keenly feels his loss of independence, dignity and privacy. The plaintiff was a young man who had much to look forward to in his life. At the age of 25 he had purchased a house at Arbour Hill and was financially secure enough to finance this acquisition. He had a girlfriend whom he loved and intended to marry. He had a secure job in the Irish Railways and he had every right to look forward to a life involving marriage, a family and happiness. He was physically active, loved music and travel and enjoyed life to the full.

19 The plaintiff’s present position is that, although he still owns his property at Arbour Hill, he is not able to occupy it by reason of its present structural unsuitability for his condition and the fact that he requires constant care. His relationship with his former partner, Miss Brady has come to an end. This appears to be a matter of great sorrow to both of them. He is now fully dependent on others and his life expectancy has been substantially reduced as a consequence of his injuries. He is in constant pain and distress and finds little enjoyment in life and none in the prospects that await him. He has been formally retired from the Railways although he is in receipt of superannuation payments on a monthly basis. Understandably, the plaintiff is unhappy and depressed with the situation in which he finds himself. In an answer which was redolent with understatement when asked about his attitude to his disability, he said (Exhibit “R”2 - page 67 Q & A 373): -

“Well, I have found it quite depressing. It depends on my health as well. When my health is good I feel like I can learn to live with it. But when my health is bad I just feel like giving up really.”

The Issues

20 Before setting out the issues in the litigation, it is necessary to mention an unusual feature of these proceedings. By the time of the hearing, the plaintiff, as I have mentioned, had returned to live with his family in Dublin. His treating doctors and a range of rehabilitation specialists were also resident in and around Dublin. For these and other reasons, orders were made for the taking of evidence on commission in the Republic of Ireland. Evidence was taken in the Four Courts in Dublin between 30 August and 9 September 2002. The evidence was recorded and admitted into the Australian proceedings as Exhibits “R”1 to 6. Preliminary rulings were made in Dublin in relation to the tender of certain material and the admissibility of disputed oral evidence. These preliminary rulings were later revisited in full and, where necessary, separate judgments were given in relation to the admission or rejection of the evidence where objection had been taken. The evidence taken in Ireland included that of the plaintiff, his mother, his father and Miss Brady. Evidence was also taken from a number of medical practitioners and rehabilitation specialists. These included Dr Frank O’Driscoll, Marie Moore, a Consultant Physiotherapist and others. There were to be a number of other witnesses called in Ireland but sensible agreements between the parties in relation to various aspects of the damages issues made this unnecessary.

21 When the hearing resumed in Sydney on 30 September 2002 the issues were these: the plaintiff’s claim was that each of the defendants owed him a duty to take reasonable care to avoid foreseeable risk of injury. The focus of the plaintiff’s case was the area of the creek where the plaintiff had been injured. The pleadings asserted that the creek was an area of recreation surrounded by recreational facilities contained in and upon public reserves leading, on both sides of the creek, to the waters of the creek itself. Essentially, the duty of care asserted against each defendant arose from statutory or de facto aspects of care, control and management of the reserves and the creek. These were said to create duties analogous to those required of an occupier to entrants lawfully upon land or structures.

22 The case against the first defendant (“the Council”) identified the duty of care as arising from a number of matters. First, the Council was the occupier having care, control and management of a Reserve on the northern side of the creek. Secondly, the Council had created a swimming area and recreational facilities in the creek and on the northern bank of the creek. Thirdly, the Council had encouraged the public using the recreational facilities to enter the creek from either the northern or southern side and to swim from either side. Fourthly, the Council had assumed a de facto control of part of the southern bank by its involvement in the creation of walkways adjacent to the southern bank of the creek and the placement of signs and the creation of nearby parking. Fifthly, the Council played an important role in the creation of the rock retaining wall on the northern side of the creek in the vicinity where the plaintiff was injured. The construction and improvement of the rock training wall had in turn increased the tidal flow and tidal prism of the creek with a consequent effect on the formation of sand dunes in the bed of the creek.

23 In relation to the remaining defendants (“the State Interests”), the State of New South Wales was the owner of both the northern and southern banks of the creek. The creek bed itself was unalienated Crown land. The Department of Public Works (later known as the Department of Land and Water Conservation) had a substantial involvement in the preparation of a beach improvement program affecting Park Beach and the relevant area of the creek. It had as well an involvement in the construction or improvement of the training wall and the carrying out of a number of investigations of the Coffs Creek area. It was as well the occupier of the southern bank of the creek from which the plaintiff had entered the creek prior to his injury. The Coffs Jetty Foreshore Reserve Trust held the southern bank of the creek and the adjacent reserve to which it belonged for the purposes of public recreation and environmental protection. The Trust had the statutory care, control and management of this area. It had as well the de facto management of the Reserve. Both the Department of Public Works and the Coffs Jetty Foreshore Reserve Trust had an involvement in the construction and continued use of pathways in the reserve leading to the southern bank of the creek and the continued existence and maintenance of those pathways. The Marine Park Authority, was alleged to have the care, control and management of the creek bed itself pursuant to its statutory powers and duties under the Marine Parks Act 1997. The area of the creek where the plaintiff was injured was part of the Solitary Islands Marine Park constituted by s 30 of the Marine Parks legislation.

24 Each of the defendants denied the existence of a duty of care as pleaded. Essentially, the Council’s position was that it did not occupy the southern bank of the creek from which the plaintiff had approached and entered the creek. Since the Council could not be said to have been an occupier in the relevant sense, it had no capacity for care, control and management of the southern bank. Moreover, the southern bank was not an area set aside for swimming and the Council offered no encouragement to the plaintiff to swim in the creek from the southern bank. Further, although the Council had the care, control and management of an area on the northern side of the creek and had established a safe swimming area adjacent to that reserve, these were matters essentially irrelevant to the existence of a duty of care since the plaintiff had not entered the northern recreation area and did not swim in the area set aside by the Council adjacent to the reserve on the northern side of the creek.

25 The State of New South Wales conceded that it was the owner of the creek bed and that care, control and management of the reserve on the southern bank of creek was in the charge of the third defendant. However, the State of New South Wales did no more than hold the land it owned and no steps were taken to encourage or promote public use of the land. Nothing was done by the State to encourage or promote the use by the public of the creek itself in the area where the plaintiff was injured. The State conceded that the Coffs Jetty Foreshore Reserve Trust had the care, control and management of the relevant land. The Trust however, did nothing to promote or encourage the use of the land and provided no improvements upon it. No liability could attach to Mr Hambly, the manager of the Trust (s 121 Crown Lands Act 1989). This issue was at the outset conceded by the plaintiff in favour of Mr Hambly. The New South Wales Marine Park Authority had no obligation under the statute for any matter relevant to the injury of the plaintiff. There was no relevant assumption of responsibility for the safety of people swimming in the creek and hence no duty of care arose.

26 The basis of the plaintiff’s allegation that the defendants were in breach of a duty of care owed to him was that each of the defendants had failed to erect warning signs at public access points to the recreational areas adjacent to Coffs Creek. Such signs should have warned persons such as the plaintiff as to the danger of the variable depth of the creek. The plaintiff’s case was that there was a foreseeable risk of injury to persons such as the plaintiff swimming and diving in the creek. The foreseeable risk of injury was an injury from diving into a creek of variable depth. In relation to breach of duty, the plaintiff’s case was that the reasonable response of each of the defendants to the foreseeable risk was the placement of warning signs as alleged. The failure by each of the defendants to erect and position warning signs of this kind demonstrated a want of reasonable care for the safety of the plaintiff.

27 Each of the defendants denied that the scope of any duty of care required, in the circumstances of the case, the placement of warning signs. The defendants stressed the obviousness of the risk identified by the plaintiff and the entitlement of occupiers of public reserves to assume that persons entering upon public land would exercise reasonable care for their own safety. Secondly, the defendants argued that the particular risk identified by the plaintiff was not reasonably foreseeable and that it was in fact farfetched or fanciful.

28 The defendants argued that, should it be held that the risk of injury to the plaintiff was foreseeable, nevertheless the defendants were not in breach of any duty of care found to exist. A consideration of the magnitude of the risk, the degree of probability of its occurrence, together with the expense, difficulty and inconvenience of taking the suggested action would, as a matter of factual evaluation, lead necessarily to a conclusion that none of the defendants had breached any duty of care in the circumstances.

29 In relation to the breach issue, the defendants again stressed the obviousness of the risk of injury due to variable depth arising from the presence of sand dunes on the creek bed. Secondly, the defendants each argued that the plaintiff had fallen short in discharging the onus of establishing that it was reasonably practicable to avert the risk of injury. In particular, it was argued that the plaintiff had called no evidence as to the practicability of erecting signs in any of the areas on the southern bank or along the shoreline or on the rock wall itself. In this context, it was also argued that the sign relied upon by the plaintiff as an effective sign was not shown to be such. It did not relate to the plaintiff’s own method of diving in the water, it was ambiguous and it was not suited to the conditions of Coffs Creek.

30 The next issue raised by the defendants’ case was that of causation. The plaintiff submitted that it had established that the placement of signs warning of the dangers of diving in the creek because of its variable depth would have been heeded by him. The plaintiff’s case was that he had established on the probabilities that if he had been warned he would not have dived and consequently would not have suffered the injuries he did.

31 The defendants put the causation issue in the balance in two respects. First, the defendants submitted that the plaintiff had not proved that he had suffered his injuries because of striking the creek bed or more particularly a sand dune in the creek bed. The defendants argued that the Court could not be satisfied on the probabilities as to what it was the plaintiff’s head struck at the time of his injuries. The matter remained in the realm of conjecture. Secondly, the evidence had not established that the plaintiff would have heeded any warning if it had been placed as suggested.

32 In addition, the defendants raised the issues of contributory negligence and voluntary assumption of risk. Further, cross-claims were issued between the Council and the State interests. Each side maintained that if the plaintiff were to succeed on liability then any apportionment of damages, after assessment of the extent of the plaintiff’s contributory negligence, should fall largely on the other.

33 In relation to damages, the parties came to a number of practical and sensible agreements which substantially reduced the scope of the issues to be decided. However, there were a considerable number of matters which remained for resolution. It will be necessary for me to identify these at a later point in this judgment.

34 It will be seen from this brief summary that, in the ultimate, the litigation involved a vigorous dispute in almost every area commonly litigated in cases of this kind. At the outset the proceedings had about them the appearance of a relatively straightforward case. A tourist to this country had been seriously injured in what might be described as a tragic but relatively simple diving mishap. The resolution of the issues, both factual and legal, became in the ultimate quite lengthy and complex. The written submissions comprised nearly 300 pages and the oral submissions were extensive as well. In addition, there emerged the burden of resolving a quite complex body of expert evidence relating to hydrodynamic issues affecting the likely conditions in the creek at the time of the accident.

35 Before attempting to resolve the issues between the parties, it is desirable to examine the factual content of the case. I shall do so by first identifying more precisely the location of the accident scene and by providing a brief description of the creek area and its surrounds.

The Location of the Accident Scene – a Brief Description of the Creek and its Immediate Surrounds

36 The area with which these proceedings has been principally concerned is the area of Coffs Creek east of the Orlando Street Railway Bridge. Coffs Creek is a small tidal estuary with a shallow inlet at Park Beach. This inlet is situated on the northern side of the Harbour itself adjacent to Little Mutton Bird Island. Coffs Creek meanders through the town centre of the city of Coffs Harbour. It narrows considerably as it passes under the Orlando Street overbridge and the railway bridge. Its width at the latter location is about 30 metres. The creek then widens a little as it sweeps in a slightly southwards direction to meet the ocean. It is approximately 250 to 300 metres from the railway bridge to the point where the creek meets the sea. Coffs Harbour city is a major city on the North Coast of New South Wales. It is, and was at the time the plaintiff sustained his injuries a major tourist centre in the State. The Park Beach – Jetty area is a significantly important part of the tourist attraction of Coffs Harbour. Park Beach runs south from Macauley’s Headland to the Coffs Harbour Jetty. The beach is interrupted only at the position where Coffs Creek emerges to meet the sea. To the south of this opening are the Coffs Harbour Jetty and the harbour area itself. A man-made walkway joins the northern side of the boat harbour to a nature reserve known as Mutton Bird Island. On the southern side of the harbour man-made structures have added further protection to the harbour itself. This area is described as Corambirra Point. Within the harbour there are a number of facilities which are undoubtedly attractive to and used by tourists. These include shopping facilities, food facilities, a sailing club and a marina. Close by is the Jetty Village Shopping Centre and the Railway Station.

37 On the northern side of the creek facing Park Beach is the Surf Club. The original club was formed a considerable time ago in 1923. The present surf club building was constructed in 1977 and has been extended in recent years. The road system behind the surf club has been upgraded and there is presently a sizeable public car park for about 100 cars in this location. Immediately to the north of the surf club and its associated facilities is the caravan park. Further north again there is a bowling club and the Park Beach Hotel/Motel. These latter facilities have been there in one form or another since about 1964. At the time of the plaintiff’s accident, the northern side of the creek had been developed with various tourist facilities including dressing sheds and toilets, grassed picnic areas with tables, showers, and a beach access walking track. Additionally, there was a kiosk, BBQ shelters and a children’s playground. There is a man-made rock wall down near the railway bridge on its eastern side and further again to the east there is the rock training wall opposite which the plaintiff and Miss Brady left their belongings on the day in question. This is also a man-made structure. A wall was placed in this position in mid-1970 primarily to stabilise the creek entrance, to prevent the migration of sand into the creek and to allow a permanent opening for tidal flows. This short wall was extended in 1974/1975. It was further upgraded in 1988. The establishment of this training wall and the rock wall down near the bridge achieved a number of results. One result was the further enhancement of a safe swimming area for children and families on the northern side of the creek within the area contained by the rock wall and the training wall near the railway bridge.

38 The Minister for Land and Water Conversation adopted a plan of management known as “Park Beach Reserve Plan of Management” on 30 August 1999. This Plan had been in draft since 1996. It contains the following statements (Exhibit “HH” – 1 page 1) which fairly describe the situation of Park Beach Reserve at the time of the plaintiff’s accident: -

“The City of Coffs Harbour is located on the mid-North Coast of New South Wales approximately half way between Sydney and Brisbane. Park Beach is the main surfing beach for the city and has a high level of visitation from tourists and visitors alike. It is the most accessible beach for the city and jetty areas, is the base for the Coffs Harbour Surf Club and is patrolled during summer and school holidays. Park Beach Reserve provides an outstanding water oriented recreation setting and the beauty of Park Beach is a prime factor in the tourist and residential growth of Coffs Harbour.
Park Beach Reserve is a lineal beach front reserve that extends from the mouth of Coffs Creek in the south to Macauleys Headland in the north, including beach sand dunes and hind dune forest. (Check Exhibit “HH1”). Park Beach Caravan Park occupies the southern and western parts of the reserve comprising two sections to the east and west of Ocean Parade. The Caravan Park caters for a range of tourist accommodation and long terms residents. Coffs Creek foreshores and the caravan park have been popular for recreation and camping activities since gazettal as a camping ground in 1933.
Park Beach Reserve is an intricate component of the Coastal Crown Reserve system as well as being extensively used by both tourists and local residents.”

39 In November and December 1999, Mr Alexander Nielsen, an expert called by the plaintiff, made inspections of the creek area including the southern side of the creek in the vicinity of where the plaintiff sustained his injuries. He said that on the southern side of the creek in this location, the area was developed with provision for car parking, paved and unpaved walking tracks, fences and dune vegetation. (It has not been suggested that the area had been altered in any substantial way between the date of the plaintiff’s accident and the time when Mr Nielsen made his inspections). Photographs appended to Mr Nielsen’s report (Exhibit “E” 469 and 470) depict the nature of the fencing and vegetation protection in the vicinity of the unpaved pathway. The photograph at 470 (“A”) shows a sign erected alongside the pathway. This sign is headed “Coffs Harbour City Council” and reads: -

“This Beach is Unpatrolled”.

40 At the request of the parties the Court participated in a view of the creek area at Coffs Harbour on Wednesday 21 August 2002. The Court was invited to make observations regarding many of the matters, which have been described under the present heading. It was noted on the view that the sign photographed by Mr Nielsen on the southern side of the creek was no longer in that location at all. There was in fact a sign of very similar appearance noticed in the vegetation area immediately to the east of the railway bridge. As a matter of inference, but of inexact proof, it may be the position that this sign is that which Mr Nielsen observed towards the end of 1999. There was no evidence before the Court as to how the sign came to be located where it was on the view nor how long it had been in that position.

41 As a matter of completeness it is necessary to mention that there were a number of other facilities and signs noted on the Court’s inspection of the creek area. These included the Porpoise Pool and tourist facilities on the western side of Orlando Street. These recreational facilities were located on the southern bank of the creek west of the railway bridge. The court also inspected an area which had been described in opening as a car park on the eastern side of Orlando Street but which gave the appearance of being perhaps more in the nature of a pull over area for motor vehicles rather than an area specially designated for any long or medium term parking. Additionally, the Court inspected the railway bridge and the various signs on it, a number of which are shown in detail in photographs later admitted into evidence. Just west of the railway bridge, between the Railway Bridge and the Orlando Street Bridge there is a sign indicating “Coffs Harbour City Council, Coffs Harbour Walk. Harbour Co-op 1.2 kilometres; Mutton Bird Island 1.8 kilometres”. The sign is situated beside the main concrete path which was described in evidence as part of the walkway/cycleway. A short distance from the railway bridge there is a man-made but unpaved path which deviates from the concrete pathway/cycleway. It runs off in the direction of the southern bank of the creek. This is the path the plaintiff and Miss Brady used in obtaining access to the creek area. It is a very short distance from the commencement of this man-made path to the sandy area of the southern bank of the creek. It gave the appearance at the time of the view, of having been well traversed.

42 Finally, it is necessary to say something about the position of the plaintiff in the creek when he was injured. It was advocated initially on his behalf that the location was somewhere between the fourth and seventh dashes on a photograph contained in Exhibit “E”. At the hearing however a mark was made on photograph Exhibit “B” to indicate the point where the plaintiff and Miss Brady had left their belongings on the sand in the vicinity of the area of the creek adjacent to the rock training wall. The evidence was that they extended the water at this point. A vertical stroke was placed on Exhibit “B” to indicate this location. It is necessary to say however, that the photograph is a copy enlargement of a photograph appearing in a report of Drummond & Parmenter Pty Ltd. This report and its attachments forms part of Exhibit “E” and the relevant photograph is a blow-up of Plan “B” at page 612. The photograph was taken on 28 June 1996. It appears to be a common ground that damage was done to the training wall as a result of a severe flood in 1996. As a consequence the precise shape and extent of the wall at the time of the plaintiff’s accident probably differed from that shown in Exhibit “B” and this may have affected the precise location where the plaintiff and Miss Brady left their belongings on the southern creek prior to swimming in the vicinity of the rock training wall. There is no other evidence however, that enables a more precise plotting of the place of the plaintiff’s catastrophic dive. The plaintiff’s evidence, it will be recalled, was that he entered the water about one quarter of the way along the training wall to the east.

Title and Ownership – the Position of the Various Defendants

43 These proceedings have been rendered quite complex by the fact that there is a substantial dispute as to the identity of those who have the care, control and management of the various parcels of land either involved in or closely associated with the plaintiff’s accident. While the defendants, in general terms, presented a stout alliance against most aspects of the plaintiff’s claim, a stern division emerged between them in relation to the issue of care, control and management of the relevant reserves and the creek itself. For that reason it is desirable to establish at the outset the legal position as to ownership and title.

(a) Park Beach Reserve

44 The physical position is best seen on Exhibit “D”13. The land north of Coffs Creek (east of Orlando Street Railway Bridge) is an area which I shall call “the Park Beach Reserve”. The part of the reserve closest to the creek was described in the Drummond Parmenter Report (Exhibit “E” page 607) as follows: -

“The land is mainly grassed recreation area with facilities including timber picnic tables and benches and bitumen paved car park access from Ocean Parade. The division between the grassed area and the relevant section of Coffs Creek and Coffs Creek beach is divided partly by rock training walls and partly by timber retaining walls with timber steps to the creek beach area”.

(The physical layout appears in the survey plain dated 5 July 2001 at page 614 of Exhibit “E”).

45 Park Beach Reserve is Crown Land known as Reserve No 63966. It was notified for Public Recreation by way of Government Gazette 2 June 1933. The Trustee of this Reserve was Coffs Harbour City Council appointed under the Public Trusts Act 1897 by proclamation in Government Gazette dated 17 February 1956. (At that time the Council was known as the Council of the Shire of Dorrigo).

46 By Government Gazette 26 May 1995, the trustee of Reserve 63966 was dissolved. At this date Sawtell and Park Beach Reserves Reserve Trust was appointed trustee of Reserve 63966 “for Public Recreation and Resting Place”. Coffs Harbour City Council was appointed to manage the affairs of the Reserve Trust pursuant to the Crown Lands Act 1989 s 95.

47 The consequence of these historical matters is that, on 24 January 1999 when the plaintiff was injured, the land from the mean low water mark north of the relevant section of Coffs Creek to Macauleys Headland in the north, was Crown Land known as Reserve 63966 for Public Recreation and Resting Place, with the trustee being Sawtell and Park Beach Reserves Reserve Trust. Coffs Harbour City Council had been appointed as Corporate Manager to manage the affairs of the Reserve Trust. Exhibit “HH”1 (p 1) confirms that the Trust was “charged with the care, control and management of the Park Beach Reserve and the Council was the Corporate Manager of the Reserve Trust”.

(b) Coffs Creek Bed East of Orlando Street Railway Bridge

48 The land between the northern mean low water mark and the southern mean high water mark of the creek is vested in the Crown. It is not included in either of the Reserves to the north and south of Coffs Creek. On the northern side however this is subject only to the exception that there is a small degree of overlapping between the extent of the legal title to the creek bed and the southern boundary of the Park Beach Reserve. In practical terms, this means that some part of the rock training wall near where the plaintiff swam was within the area of the Park Beach Reserve. It is not however; possible to say with any precision to what extent this is so. The position is shown as clearly as it can be by Exhibit “D”13. The reason for this area of imprecision and uncertainty arises in part from the fact that the selection of a mean high water mark boundary has or may have involved gradual imperceptible accretion and erosion resulting over time in a slight movement of the boundary itself. A secondary factor arises from the construction of the rock training walls themselves. The location of the mouth of Coffs Creek has varied substantially over a hundred and ten years since the time of the original survey in 1890. Subsequent surveys had been unable to determine the exact location of the creek bed immediately prior to the rock training wall construction.

49 The authors of the Drummond Parmenter Report asserted that the title to the bed of the creek vested in the Crown, ie., the State of New South Wales; and that it was “managed” by the Marine Park Authority. This latter aspect of the surveyors’ assertion was not agreed to by the State interests for the purposes of the litigation. While it was conceded that the Marine Park Act 1997 vested in the Marine Park Authority care, control and management of the waters in Coffs Creek, from high watermark to high watermark, there remained an issue as to the scope of that care, control and management so as to suggest that it was not relevant to the plaintiff’s claim in these proceedings. At the conclusion of the proceedings the plaintiff indicated that it no longer pressed the claim against the New South Wales Marine Park Authority. This statement carried with it, as I understood the position, a concession that the Marine Park Authority had management control but that it was limited to marine and ecological matters.

(c) Land South of Coffs Creek East of Orlando Street Railway Bridge

50 The Drummond Parmenter report described this area as follows (page 608 Exhibit “E”):

“The area on the southern side of the relevant section of Coffs Creek and east of the railway line is sandy beach. Further to the south the beach becomes vegetated. There is a concrete pathway from Orlando Street passing under the adjoining railway bridge leading into the vegetated area. A sign at the Orlando Street commencement of this path refers to it as “Coffs Creek Walk - Harbour Co-op 1.2 kilometre; Mutton Bird Island 1.8 kilometre”. Near the commencement of the “Coffs Creek Walk” pedestrian traffic can pass from the path directly on to the beach area south of Coffs Creek. There is no visual evidence of rock or timber retaining walls on the relevant southern section of Coffs Creek.”

51 For shorthand purposes, I will refer to this land as “The Jetty Reserve”. In 1916, an area of about 142 acres on the southern side of Coffs Creek east of the rail line was resumed and appropriated under the Public Works Act 1912 for the carrying out of improvements to afford additional shipping facilities at Coffs Harbour. The area was vested in the Minister for Public Works. The land relevantly extended eastwards to the low watermark of the South Pacific Ocean (that is to say it included the area known as South Park Beach to low watermark) and it extended on the northern side to Coffs Harbour Creek. The northern boundary of the reserved land extended to the southern mean high watermark boundary of Coffs Creek. This is shown clearly on Exhibit “D”13. The resumed land did not include the bed of the creek which remained Crown Land.

52 By Government Gazette 28 June 1996 the subject land was declared Crown Land pursuant to s 138 of the Crown’s Lands Act 1989. The land was further gazetted as Crown Land Reserve No 140102 for “the public purpose of public recreation and environmental protection”. The Trustee was Coffs Harbour Jetty Foreshore Reserve Trust and the Trust Manager was Mr Hambly, the fourth defendant.

53 The consequence of these matters is that on 24 January 1999 when the plaintiff was injured, the land from mean high watermark south of the relevant section of Coffs Creek was Crown Land known as Reserve 140102 for the public purpose of public recreation and environmental protection. As I have said, the Trustee was Coffs Harbour Jetty Foreshore Reserve Trust and the Trust Manager was Walter Scott Hambly (also known as Mr Wal Hambly) c/- the Department of Land and Water Conservation, Grafton.

Care, Control & Management – the Statutory Position of the Defendants

(a) Park Beach Reserve

54 Section 92 of the Crown Lands Act 1989 (as amended) deals with the formation of Reserve Trusts. Section 92(1) confers on the Minister the power to establish and name a Reserve Trust and to appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve. Sub-section 5 of s 92 is in the following terms: -

“(5) A Reserve Trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee.”

55 Section 92(6) provides that the affairs of a Reserve Trust shall be managed by a Trust Board or by a corporation appointed under s 95. This section allows the Minister to appoint a Council to manage the affairs of a Reserve Trust.

56 The objects of the Crown Lands Act 1989 are stated in s 10. The section, so far as is relevant, includes the following: -

“10. The objects of this Act are to ensure that Crown Land is managed for the benefit of the people of New South Wales and in particular to provide for:
(b) the management of Crown Land having regard to the principles of Crown Land management contained in this Act,
(c) the proper development and conservation of Crown Land having regard to those principles,
(d) the regulation of the conditions under which Crown Land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with,
(e) the reservation or dedication of Crown Land for public purposes and the management and use of the reserved or dedicated land.”

57 Section 11(c) states that the principles of Crown Land Management, for the purposes of the Act include: -

“(c) That public use and enjoyment of appropriate Crown Land be encouraged.”

(b) The Creek Bed

58 Save for the area of overlapping title on the northern side of the creek, the creek bed was and is vested in the Crown, that is the State of New South Wales. It was and is, unalienated Crown land.

59 Section 12 of the Crown Lands Act 1989 (as amended) provides in sub-section 1 that the Minister is responsible for achieving the objects of this Act. The objects of the Act include those set out earlier in relation to s 10 of the Act. They include the management of Crown land having regard to the principles of Crown Land management set out in s 11. In turn, those principles include (s 11C) “that public use and enjoyment of appropriate Crown Land be encouraged”.

60 Power is thus conferred on the Minister to undertake care, control and management of the creek bed so as to achieve the objects of the Crown Lands Act in accordance with the stated principles of Crown Land management.

(c) The Jetty Reserve

61 The Jetty Reserve Trust came into existence in June 1996 for the public purpose of “public recreation and environmental protection”. Care, control and management of the reserve was charged upon the Reserve Trust itself (s 92(5) Crown Lands Act 1989 (as amended)). A Corporate Manager was not appointed to the Trust. Mr Hambly, the fourth defendant, was at the relevant time the manager of the Trust but it was conceded he had no personal responsibility in relation to the plaintiff’s injury.

Care, Control & Management of Park Beach Reserve, the Creek Bed, the Creek Generally and the Jetty Reserve.

62 Notwithstanding that the title and occupancy position seemed relatively simple and straightforward, the parties to the litigation literally flooded the court with a flotilla of often unexplained or uncontexted documents. These comprised part of Exhibit “D”, three volumes marked as Exhibits “H”1, 2 and 3, Exhibits “GG” and “HH” and Exhibits “D”8-12 and “D”17. The volume of documents in this category constitute together approximately ten folders. As I understand it, the tender of so much of the material as emanated from the plaintiff’s side was designed to show an assumption by the State interests of care, control and management in relation to the creek generally. Conversely it was designed to demonstrate aspects of control and management involving the Council on the Jetty Reserve area on the southern side of the creek. From the perspective of the defendants, a contest emerged between the State interests and the Council as to who in fact and in practice was responsible for care, control and management of the creek area and the respective reserves. Despite continued assertion by the defendants that this was to be treated as a minor issue in the case, it assumed a much larger role in the formulation of the final written submissions. As a consequence of these matters, all parties have subjected the Court to this “barrage” of documentary material, often unexplained and unilluminated by the calling of witnesses to make clear its significance to the issues. In those circumstances, the court must deal with the submissions and the material as best it can. I propose however, to summarise as briefly as possible the sequence of events that appear to be circumnavigated by the extensive folders of material I have identified. I shall leave for further discussion, individual documents and shall address them, but only where necessary, in the context of the final resolution of the issues having regard to the written submissions filed by the parties.

· In 1969 a survey held by the Department of Public Works at its Coffs Harbour Regional Office showed that Coffs Harbour Creek was at that time nearly “choked off” with sand.

· On 14 July 1970 a joint inspection was made by representatives of the Public Works Department and the Council. The inspection revealed that the main problem was to establish “the type of creek entrance which would prevent migration of sand into the creek and allow a permanent opening for tidal flows”. It was noted that in an attempt to stop the spreading of sand towards the creek, the Council had placed a stone wall at the entrance. This presumably had happened sometime in 1970.

· In 1974 the Council carried out work in extending the stone wall which had been built in 1970. A concern had arisen that the northern bank of the creek downstream of the bridge was eroding. Mr Gentle was the Shire Engineer between 1972 and 1993. He gave evidence that in 1974 he had discussions with Mr Ron Colley from the Public Works Department about doing some work on the existing training wall structure. His recollection was that the two men decided between them that two rock walls should be built or reconstructed. This was to address the issue of erosion of the northern bank and the fact that the creek mouth closed off regularly. Mr Gentle said he did not have “the expertise” and it was for that reason that he brought in the district engineer from the Public Works Department. A plan was forwarded by Council to the Department of Public Works for its approval (Exhibit “D”5).

The extension to the rock wall “nearest to the ocean” was an extension of about 35 metres to the west. Mr Gentle supervised the work which was carried out by Council.

· Mr Colley addressed a memo to the Principal Engineer of the Department of Public Works in November 1975. In this document, he commented that “the entrance at the creek had been stable since the rock training walls were constructed by Council 12 months ago”. He said that the walls had successfully reversed the trend to erode the northern bank east of the railway. He recommended that consideration be given to dredging the creek in the area immediately west of the railway to provide “a more permanent deeper and stable channel”. He suggested that an overall development plan should be produced.

· In April 1979, the Public Works Department published a report “Coffs Harbour Creek – Waterways Study Volumes 1 and 2” (Exhibit “D” 292-367). This study was carried out as a consequence of representations made by the Council to the Public Works Department. The Department undertook an hydraulic investigation of the flooding and tidal characteristics of Coffs Harbour Creek. The report recommended that dredging take place in the boat basin area upstream of Orlando Street and that the dredged material “be used as beach nourishment for Park Beach”. One purpose of the dredging was to improve the recreational amenity of the creek area immediately to the west of Orlando Street.

· The report noted the responsibility of the Department in these terms: -

“The Department has responsibilities for the development maintenance and conservation of waterways and provides advice to other authorities on the engineering aspects of waterways and foreshores. As a result, the Department undertook a hydraulic investigation of Coffs Harbour Creek following representations from the Shire Council.” [Exhibit “D” 301].

· The report also noted that swimming in the creek was usually limited to the area east of the Orlando Street Bridge. It said: -

“This area is very popular with tourists as it is adjacent to one of the district’s most popular surfing beaches (Park Beach) and to a caravan park. The still backwater afforded by the two small training walls makes this area attractive also to families with small children.” [Exhibit “D” 302].

· Mr Gentle in his evidence (T 691 lines 20-25) agreed this was “a fair statement of the facts at that time in 1979”. The report further noted that the Orlando Street road bridge and the railway bridge “drastically reduced the channel width causing an increase in depth”. (Exhibit “D” page 307). The report noted that there was a strong demand to develop the lower reaches of the creek for active recreational users. “Heavy recreation use is made of the creek east of Orlando Street with swimming the predominate activity. A local High School uses the area between Orlando Street Bridge and Railway Bridge as a canoe course”. [Exhibit “D” p 310].

· The Council concurred in the report’s recommendations and requested that the Department provide the necessary funds to allow the works to proceed. In turn, the Department informed the Council that the dredging and beach nourishment would be considered under a programme known as the Beach Improvement Programme. This was a programme promulgated by the State Government and administered through the Public Works Department.

· On 5 June 1985 there was held an inaugural meeting of a “committee to examine coastal processes affecting Park Beach”. This was a committee formed by the Council which included two Shire Councillors, Council Staff and to which were seconded representatives of the Public Works Department and the Soil Conservation Service. The principal aims and objectives of the committee included the long term aim of Council to arrest the erosion of Park Beach; the continuance of Park Beach as a major recreation and surfing beach for its full length; to ensure the flow of Coffs Creek to the ocean being maintained at all times by the implementation of necessary works, and that the recreational uses associated with Coffs Creek east of the Railway Bridge and adjacent to Park Beach Reserve be continued. The committee resolved that “the Council should pursue an application for a grant to carry out general protection works if possible in the 1985/1986 Beach Improvement Programme on the northern section of Park Beach compatible with the overall aims and objectives of the area”. [Exhibit “D”17 page A23].

(It is necessary to say that sometime earlier in October 1983, Mr Colley, the District Engineer for the Public Works Department, had written to the Shire Clerk inviting the Council to submit detailed designs and estimates for beach improvement works at Park Beach. Mr Colley advised that the Department was in a position to give advice concerning the active processes affecting Park Beach, particularly in relation to long term recession. He promised to consider the matter and make a recommendation to the Minister for a grant offer “upon receipt of satisfactory designs and other information”).

· On 6 February 1987 the Council formally applied for funding for the improvement works proposed at Park Beach. This application was made pursuant to the Beach Improvement Programme. The work envisaged included the relocation of the existing surf club car park access road; replenishment and reshaping of the dunal system and the beach with imported sand; replanting of the dunal system with native vegetation; provision of pedestrian access ways and additional car parking. As well, there was proposed a new access road to the surf club parking area. The estimated cost of work was said to be $531,000. The Council noted that there had been close liaison with the Department of Lands & Soils Conversation Service and the staff from the Public Works Department during the preparation of the project. A plan of management had been prepared by Council and had been exhibited to the public. The plan had been adopted and forwarded to the Department of Lands for formal adoption. Development consent for the project had been granted by Council.

· On 16 February 1987 the District Engineer, Public Works Department gave a detailed report supporting the proposal and the proposed grant of funds.

· On 26 February 1988 the Minister, Mr Peter Cox indicated that he was prepared to provide Council with a grant for Park Beach stage 1 area of up to $332,000. His letter noted that: -

“The Public Works Department Regional Engineer at Coffs Harbour would authorise commencement of constructions works for the project in due course.”

· The Minister’s letter attached conditions relating to the grant offer. These included the condition that the Department’s Regional Manager would have “overriding supervision of the works and that the works were to be constructed in accordance with the plans approved by the Department”. Construction works were not to commence until “after Council had received an approval to the construction programme by the Regional Manager of the Public Works Department”. Any variation to the works required the approval of the Regional Manager. Upon completion of the works, Council was obliged to maintain the works “to the satisfaction of the Regional Manager”. [Exhibit “D”17 page 17I].

· On 30 March 1988 the Council accepted the terms and conditions of the beach improvement programme grant. The Council informed the Public Works Department that it would prepare detailed plans for the Department’s approval together with a construction program.

· In September 1986 the Council made a preliminary application to the Department of Public Works to enable dredging of Coffs Creek under the Waterways Programme. This was at an estimated cost of $350,000. In August 1987 the Coastal Processes Committee requested that the Public Works Department assist in investigations of Coffs Creek by reviewing available survey information on the creek.

· A first draft of a Public Works Department Report “An Assessment of Marine Sediment Infilling” was presented to the committee meeting in December 1987. The committee recommended that Council staff prepare a concept plan for the dredging work and submit it to the Public Works Department to support Council’s application for funding under the Waterways Programme. At a later meeting of the Coastal Processes Committee in April 1988 there was a resolution that the concept plan for development of Coffs Creek be adopted and that formal application be made to the Public Works Department for funding of the preliminary design and preparation of an environmental impact study.

· In June 1988 the final version of the report “An Assessment of Marine Sediment Infilling” (Exhibit “D” 370-435) was provided to the Public Works Department. The document noted that it had been prepared for Council by the Coast and Rivers Branch of the Public Works Department in consultation with the Department’s Coffs Harbour Office. The report dealt with an examination of coastal engineering issues relating to the dredging proposal and was submitted to the committee to assist it in developing a management strategy for the Coffs Creek area. The report concerned itself with a number of engineering issues namely, the stability of the creek and surrounding beach areas and the response of the existing system to the proposed dredging works. The study area encompassed the downstream reach of Coffs Creek from the creek entrance at Park Beach to approximately 400 metres upstream of the Orlando Street road bridge.

The report recommended that any dredging of the creek in the lower reaches should be accompanied by a well designed beach nourishment programme. It noted the possibility that sand extraction could alter the tidal hydraulics of Coffs Creek and have an impact on the stability of the creek banks, the rock protection works and the training works in the creek in the lower area of the creek.

· Internal documents created in the Public Works Department during May and June 1988 discussed the source or sources from which sand might be obtained for the purpose of the stage 1 work of the beach improvement programme for Park Beach. These discussions proceeded on the basis that the construction of the Coffs Harbour Port had interrupted the south to north littoral sand drift along this part of the coast line. This was seen as a principal factor in the recession of Park Beach immediately north of the harbour. These documents advocated the nourishment of the dune and beach areas on Park Beach with substantial amounts of “imported” sand. One of the principal sites for collection and despatch of this sand was the Boambee Beach area to the south of the harbour. The May report notes that: -

“The lower reaches of Coffs Creek are within Park Beach system and relocation of sand from the creek to the beach would not increase sand reserves overall. Such a proposal is inconsistent with the BIP aims for Park Beach.”

· Stage 1 of the Beach Improvement Programme for Park Beach proceeded apace during 1988. Sand was trucked in to replenish the beach and a new access road was established in place of the previous access. The car park area was expanded and a more substantial dune was provided in that vicinity. The newly deposited sand was in fact placed in an area on the southern and eastern sides of the car park (see Exhibit “E” page 502 and Exhibit “D”6).

· Mr Richard Rowe, the Coastal and Flooding Engineer with the Council gave evidence in the proceedings. It transpired that he had worked for the Public Works Department in Coffs Harbour in the period between 1984 and April 1989. Part of his evidence related to the situation that arose in 1988 after the placement of the new dune on Park Beach and the planting of vegetation upon it. Mr Rowe said that it was noticed by Coffs Harbour City Council’s staff that the creek was meandering to the north and severely undercutting the new dunal works which had been completed. It was apparent that unless something were done the whole of the strategy for that part of the beach would be undermined. Mr Rowe said he was called to the site by Council staff to examine the problem. He suggested that the problem might be solved by the extension of the training wall, that is the training wall at the eastern end of the creek. He discussed the matter with his superior in Public Works, Mr Fidge, and it appeared to have been agreed between them that the extension of the training wall was the solution.

· An employee of the Department of Public Works, a Mr Michael Dale was given the task of designing the extension and strengthening works for the training wall. Plans were prepared and the actual work was carried out by the Public Works Department. Mr Rowe said that the funds left over in the allocation from the Beach Improvement Program were used to cover the cost of the extension to the training wall. In the ultimate, the Department “billed the Council for the cost of the work” (approximately $41,000 – Exhibit ”D”17 page 45C). The Council was then to claim this payment back through the Beach Improvement Programme.

· On 31 August 1988, Mr Michael Dale of the Public Works Department reported to Mr Medi that the training wall “seems to have done its job as the creek now goes almost straight out to sea and does not bend to the north” (Exhibit “D”17 page 41(i)). A copy of the “work as executed” plan demonstrates that the strengthening and addition to the training wall was constituted by an easterly extension to it. The wall was described as “a rubble mound structure consisting of a core of random shaped and placed rock, protected with an armour layer of selected larger rocks”. A letter from the Public Works Department to the Council of 31 August 1988 (Exhibit “D”17 page 40) noted that “due to the nature of rubble mound structures, the effects of scouring and settling will necessitate periodic maintenance, particularly following the first major storm which affects the structure”.

· In January 1990 the Minister for Public Works offered a grant to the Coffs Harbour City Council totalling $450,000 to carry out improvements to the waterways of Coffs Creek. This offer was accepted by Council in August 1990. Under the offer Council was required to prepare an Environmental Impact Statement together with a Management Plan for Coffs Creek. The initial work was to identify the recreational needs for Coffs Creek including the provision of walkways, picnic facilities, launching ramps, car parking areas and other similar facilities.

· Exhibits “D”8 to “T”12 are extensive documents comprising material prepared for Coffs Harbour City Council by Allen & Associates Pty Limited and Bruce Fidge & Associates Pty Limited. These firms had in June 1991 been accepted by the Council as acceptable firms to provide consulting services in regard to the waterways improvement project. The Department of Public Works concurred in this acceptance in late June 1991. In July 1991, the consultants invited a public participation in workshops aimed to provide information and submissions relating to the waterways programme.

· In early 1992 there commenced the progressive publications of Exhibits “D”8, 9, 10, 11 and 12. These were respectively a background information report, an overall management plan, a detailed management plan, a statement of environmental effects and a report containing engineering design documents.

· Exhibit “D”8 referred to studies carried out by the Council in relation to recreational usage of Coffs Creek generally. Recreational users were identified as “Coffs Harbour residents, workers, sports clubs and tourists”. A recreational preference study which had been undertaken showed the preferred recreational activities as including “walking, swimming, fishing, picnicking, bushwalking and the like”. The study indicated that Coffs Creek was “an important recreation resource for Coffs Harbour residents” (page 28 Exhibit “D”8). This document identified existing opportunities for development and use of the study area including the downstream recreation area. It identified this area as “a significant recreational resource with potential to be linked to the Park Beach tourist area” (Exhibit “D”8 page 31).

· Exhibit “D”9 – the overall management plan – sought to provide an overall long term planning strategy which would guide the future development usage environmental protection and restoration of Coffs Creek from the Pacific Ocean to the Pacific Highway. One of the objectives of the plan was “to maximise public access and enjoyment of the creek environs while preserving and enhancing its environmental integrity” (page 3 Exhibit “D”9). Another aim was to provide for “the present and future recreation needs of the community”. The selected method was the division of the study area into eight functional areas along the creek.

· The detailed management plan dealt with functional area No 1. This was the area immediately adjacent to the railway bridge and extending in a westerly direction from the bridge to a point about 350 metres upstream. Part of this plan involved the formalisation of pedestrian, vehicular and cycleway traffic plus the creation of car parking areas. It included also the strategic location of facilities including tables, barbecues, walk and cycle ways and other amenities. It involved, consistently with earlier studies, the dredging of a small part of the study area to provide for increased recreational use of the waterway for activities such as canoeing, paddle boating and swimming (Exhibit “D”10 page 2). It also addressed Reserve User Safety. This included the provision of “signage to provide for directional guidance including warnings of deep or fast water, warnings with regard to no diving off structures and no public access to the rock groyne” (page 18 Exhibit “D”10).

· In Exhibit “D”11 – Statement of Environmental Effects – an overview of the project was provided. It was said that the creek within the study area formed a large circular shaped bowl which provided a significant recreational resource and adjunct to the Park Beach surfing area. It noted that “Coffs Harbour City Council in association with the Public Works Department and the Department of Conservation and Land Management had determined to actively seek improvements to both the waterway and foreshore areas. To this end, the Minister for Public Works has offered funding to assist Council in carrying out these improvements”, (Exhibit “D”11 page 3).

· On 8 September 1992 the Council approved the development application for the dredging operations in functional area No 1 west of the Orlando Street Road Bridge. On 11 September 1992 the Town Clerk wrote to the Public Works Department at Coffs Harbour requesting permission to use surplus sand from the dredging in the creek to nourish Park Beach. The Public Works Department indicated its approval on 8 October 1992. It appears the waterways project then proceeded quite vigorously with substantial funding being provided by the State Government. The first stage at a cost of over $800,000 had been completed by April 1993. The total cost of the project was estimated at $2.5 million. Future maintenance responsibility for the improvements provided under the programme lay with the Council.

· In April 1991 the Rotary Club of Coffs Harbour resolved to design, organise funding for, and co-ordinate the construction of a new walking track along the ocean foreshore at Coffs Harbour for a distance of about 500 metres north of the Coffs Harbour Yacht Club. The proposed route of the walking track was to commence at the southern end of the Orlando Street traffic bridge over Coffs Creek. The proposed route proceeded then in an easterly direction across the Orlando Street Road Reserve followed by an underpass across railway land on to the southern bank of the creek. The suggested pathway was to proceed in a south easterly direction generally along the alignment of an existing but unformed four-wheel drive track to the Yacht Club at the Jetty. The total distance was about 500 metres. The land affected by the proposed pathway was at that time partly owned by the Minister for Public Works and partly by the State Rail Authority.

· Between 1991 and 1992 correspondence passed between the Rotary Club, the Council, State Rail, Lands Department and Public Works Department relating to this venture. In the upshot, a new walking track and cycleway was constructed with the Rotary Club as the originator of the scheme and “Project Manager”. The Council’s role was multi-faceted. It acted as the employer of the job skill personnel who carried out the work; it was the approving authority; it was the contributor of $15,000 funds through the Park Beach Reserve and the grantee of a substantial grant from the Minister for Public Works in the sum of $28,250. In addition, Council provided miscellaneous tools and equipment for the project along with training and the like for the job skill employees who carried out the physical construction work.

· To further facilitate the work and its implementation, the Council entered into a License Agreement with State Rail in relation to the railway land affected by the new footpath. The Council as licensee was to pay a nominal license fee and to maintain the access way at its own costs. On 19 September 1991 the Public Works Department by letter gave its approval for the construction of the proposed pathway on Public Works land. This was subject to conditions including: -

“(i) The pathway is constructed to standards agreed to by Public Works (to prevent liability in the event of accident).
(ii) The pathway is constructed close to the breakwater/training wall.
(iii) A plan indicating the location and alignment of the pathway is provided to this office”. (Exhibit “D”17 page 80).

· The Public Works Department notified Gutteridge Haskins and Davey Pty Limited in April 1992 that the Department approved of the preliminary design drawings but required that “fencing using post and rail and horse wire be considered in Stage 1 along the beach side of the walking track behind Park Beach” (Exhibit “D”17 page 96). The Engineers were provided with a copy of a standard post and rail protective fence as used by the Department recently at the foreshores. The lower rail was replaced with two strands of “bayco” wire (fencing of this type appears to be depicted in Exhibit “E” p 548 being the type of fencing observed by Mr Nielsen on 9 December 1999 when he made his inspection (see Exhibit “E” p 470)).

· In any event the work was completed by the early part of 1993. It appears the Council may have undertaken the task of maintaining the walkway after its completion (Exhibit “HH”1 page 1).

· On 20 May 1997 the Aquatic Superintendent for the Council wrote to the Risk Co-ordinator in relation to the upgrading of signage at Park Beach in particular and on all Council beaches in general. The memo noted that signs were currently on order “to limit Council’s liability”. The memorandum referred to a survey which had been conducted on all major beaches in the area and reinforced the need to place signs on unpatrolled beaches which gave a warning to that effect (Exhibit “D”17 page 166A). (Park Beach South apparently had been considered as long ago as 16 July 1991 as particularly dangerous and had been the scene of a number of fatalities, Exhibit “D” 17 page 45).

· The signs referred to in the May 1997 memo appear to be the type of sign observed by Mr Nielsen in November and December 1999 and shown in Exhibit “E” page 470.

· A memorandum was written by the Regional Director of the New South Wales Department of Land and Water Conservation (formally Public Works Department) on 24 February 1998. This related to negotiations with Coffs Harbour City Council with a view to the Council taking over the Corporate Management of the Coffs Jetty Foreshore Reserve Trust. In the course of the discussion of this proposal (which to date has not eventuated) the memo states: -

“At the present time, care, control and management of the Reserve rests with the Administrator, Wal Hambly, Department of Land & Water Conservation appointed under the provisions of the Crown Lands Act. This is intended to be a temporary arrangement pending appointment of a Trust Board or a Trust Manager to manager the Reserve. The preferred option at the time is for Coffs Harbour City Council to accept Trust Management especially as Council now has responsibility for control and ongoing maintenance of the adjoining recently restored (at a cost of some $3 million) Coffs Jetty facility which is listed as a National Work.

381 I consider that it is reasonable, when assessing the cost of past care in this period, that an allowance should be made in favour of the defendants for the care provided by Dario and his predecessors. That is because the family were to a degree relieved of the provision of care during each of those periods. However, there are some qualifications to be made to this allowance. First, there is the need to recognise the fact that family care would not have ceased altogether when Dario was there, although it would have been to a large degree relieved. Second, there was the need to take the plaintiff and Dario to Dun Laoghaire and to collect them after the work program had finished on each of the two days.

382 I have calculated that if one were to attempt to work the matter out with absolute precision, then (making the assumptions that are inherent in some of the matters I have dealt with above) it would be the situation that an allowance of approximately E44,421.30 should be taken from the claimed amount. This would in effect represent 44 hours per week with approximately 20 of those hours being for night care. However, because of the qualifications inherent in the assumptions I have made, I think a fairer way of estimating the allowance would be to round it down somewhat to reflect those qualifications. Accordingly, I propose to reduce this aspect of the plaintiff’s claim by E38,000.00. I realise that this is an imprecise way of doing it but its seems to me to be reasonable and fair in all the circumstances.

383 I do not consider that the defendants are entitled to an allowance for the specialist nursing care required each week for the manual evacuation of the plaintiff’s bowels. These attendances were specific instances of medical care and did not interrupt the continued provision of care by the family.

384 For the reasons stated in relation to the First Stage of the Irish past care claim, I am satisfied that the quantum of the plaintiff’s claim on the suggested hourly basis is reasonable and that it is appropriate to determine it at a rate that may be classified as a commercial rate, although it is in fact somewhat less.

Interest on Past Care

385 The interest rate is agreed between the parties at 5.17 per cent. The defendants however, submit that interest on this aspect of the claim is inappropriate. They have submitted that Grincelis was wrongly decided. I am of course, bound to apply the authority of the High Court and do so.

Future Care

386 The only issue which arises in relation to this aspect of the plaintiff’s claim is the suggested need for a deduction of 50 hours per week representing the continued assistance being provided by the Irish Wheelchair Association and the weekly nursing visits at four to six hours per week. Otherwise the commercial hourly rate of E16.00 per hour is agreed.

387 In relation to future care, it is my view that the plaintiff is entitled to engage his own personal carer of choice rather than to be bound by the choice of the Irish Wheelchair Association. The relationship between a quadriplegic and his carer is a very delicate one. There are issues of independence, private dignity and, regrettably in some cases, exploitation and manipulation. For all that may be said as to the benefits of the limited assistance provided by the Irish Wheelchair Association, the fact remains that it is a very limited assistance. It is limited in terms of hours. But it is limited in other important ways as well. These were explained by the first defendant’s occupational therapist Miss Horgan at page 14 of Exhibit “D”2. In short, Miss Horgan pointed to the fact that, because of the difficulty of engaging local people, personal assistance came from a varied ethnic background. This posed in some cases difficulties of communication and difficulties such as that presented by the plaintiff’s carer as at September 2002. He, for example, was unable to drive a car in Ireland. Moreover, there was no guarantee that such persons have any training at all in relation to the provision of care to seriously disabled persons. Based on all the evidence, the plaintiff’s current carer Dario was quite a responsible and decent person. He was providing reasonable assistance to the plaintiff in a number of respects. However, it is quite clear that the plaintiff should have the choice and should not be bound by the choice of the Association.

388 In relation to the nursing care issue, I need only repeat my comments in relation to a similar argument that was addressed to the court in relation to past care. The provision of four to six hours a week by nursing staff is entirely a matter of separate medical attention needed by the plaintiff. It extends not only to the manual evacuation of his bowels and all the unpleasant consequences involved but also the possibility that the nursing staff may be required to change the catheter. These needs are additional to and supplementary of the care which is normally provided by a general carer. The family’s care for the plaintiff and his need for that continued care did not cease during these nursing attendances. They were quite specific whereas the family’s duties were, and remained more general. The same would apply in the case of a personal carer selected to look after the plaintiff’s future needs.

389 In my view, for these reasons, there is no warrant in reducing the plaintiff’s claim for future care on either of the bases asserted on behalf of the defendants.

390 I should only add to make it clear that the mathematical calculation of future loss is derived by the use of a multiplier. The multiplier has been selected because of the agreed life expectancy of the plaintiff. The plaintiff turned 34 on 10 February 2003 and it has been agreed that his life expectancy is 27.5 years at the present time. The calculations reflect this agreement.

Future Nursing Care

391 The only issue which arises in connection with this item is the suggestion made by the defendants that only three visits per week will be required by nursing staff. It had been suggested by Dr O’Driscoll and others that a separate visit would be needed for the purposes of changing the plaintiff’s catheter. Dr O’Driscoll thought that this procedure should be carried out on a separate occasion (Exhibit “R”5 page 11). In cross-examination, however, Dr O’Driscoll expressed some doubts whether it was appropriate at all for nursing staff to change the catheter. His opinion on this matter appeared to be somewhat equivocal (pages 18 and 19 of Exhibit “R”5. In the ultimate, although reluctantly I suspect, Dr O’Driscoll appeared to agree that the nursing staff, if they were trained to change the catheter could do so first and then deal with the evacuation of bowels subsequently on the same visit. It was this evidence as I understand it which led to the submission that has been made.

392 The issue is one of medical necessity and reasonableness. In my view it is reasonable to allow four visits per week as claimed by the plaintiff. There are issues here of human dignity that transcend the relatively small amount of money involved in this aspect of the dispute. In addition, there is the risk of infection. It may be alleviated by following the course suggested in cross-examination of Dr O’Driscoll but it can not be entirely eliminated as a problem. Dr O’Driscoll certainly saw it as a matter of real medical concern. Thirdly, there is the fact that the nursing staff sent for the purposes of attending to bowel evacuation may not be necessarily trained in the removal and replacement of a catheter. It may well be the situation that a nurse with specialist ability in this regard will be required. In all those circumstances, the plaintiff’s claim as outlined is reasonable and is justified on medical grounds.

Future Special Needs

393 There are only two matters here in dispute. The first relates to sexual activity and the second to the provision of a special lounge for the plaintiff. As to the former, I am not satisfied that there is sufficient evidence before me to justify the expenditure on this item. As to the second, I am satisfied that there is appropriate evidence which satisfies me that the plaintiff is entitled to damages which take into account the provision of this specialised seating. Given the plaintiff’s condition, it is medically desirable that he be provided, within reason, with all of the facilities which will enable him to relieve pressure sores and to have relief from being confined to his rather uncomfortable wheelchair and his bed. I can see no warrant for denying the plaintiff this item. It is well supported by the evidence of Margo Barnes (Exhibit “C”) and the need for seating of this kind was not put in issue by Linda Horgan (Exhibit “D”2). There is further support in the evidence of the physiotherapist Ms Moore (Exhibit “J” 1365, 1368).

Household Assistance

394 The plaintiff’s claim includes an amount representing an allowance for assistance with housework. The plaintiff of course would like to be independent and the damages sought relate to housekeeping assistance in the event that he is able to live independently in the future. The defendants submit that the plaintiff’s carer can attend to household duties and that this is, as the evidence shows, commonly the case with carers assisting disabled spinal injury patients. In my view, a small allowance for assistance with housework is reasonable. Most household duties can be undertaken by the carer but there will be occasions when some assistance is required. Moreover, allowance has to be made for the fact that particular carers may be resistant to undertaking the full range of household duties. I am prepared to allow E2,000.00 thus requiring a deduction of E6,446.46 from the amount claimed.

Physiotherapy, Hydrotherapy, Pool Hire

395 Somewhat surprisingly, these became quite a contentious issue. I would have thought that the evidence clearly established that physiotherapy on a regular basis is medically necessary, beneficial and desirable in relation to the plaintiff’s condition. Quite apart from the evidence of Marie Moore, it seems to me to be a matter of commonsense that quadriplegic patients need a substantial amount of physiotherapy and, it goes without saying, they need such treatment at a reasonably high level provided that the resultant cost is reasonable. It is true that a carer can implement certain basic aspects of a planned physiotherapy program when properly instructed. However, carers are not specially trained in physiotherapy techniques and, in my view, cannot be expected to provide other than the most basic of assistance to a disabled plaintiff. Physiotherapy techniques are very different from household chores.

396 Ms Moore gave illuminating evidence. First, it appears to be the undoubted situation that there are very few therapists available in and around Dublin for the amount of work that is required. The public system of available physiotherapy is quite deficient and substantial delays in obtaining a physiotherapist for patients is common. Secondly, Miss Moore said that physiotherapy treatment is very important for people with the plaintiff’s degree of disability. Especially this is so in relation to the need to prevent contractures. The actual physical work can be done by a carer but Miss Moore insisted that it had to be overviewed and overseen by a specialist physiotherapist. Thirdly, the plaintiff would need physiotherapy advice in relation to new types of equipment and treatment specifically in the area of local treatment of neck and shoulder pain. Fourthly, maintenance of chest function is especially important for a person who is confined to a wheelchair as is the plaintiff. Additionally, hydrotherapy was an important technique for maintaining chest and breathing function in addition to physiotherapy exercises and stretching.

397 In relation to hydrotherapy, Ms Moore had suggested that the plaintiff should have 48 treatments a year. This was calculated on the basis of there being one session a week with a break for holiday periods. Because the plaintiff has a superpubic catheter and a Baclofen Pump surgically inserted in his back, he would not be able to use a standard pool. He would have to use a pool that was warmed to a proper temperature. As well the pool would need to have hoist facilities. The benefits of hydrotherapy are that it enables the disabled person to stretch out quite well whereas this is difficult out of the water. Secondly, the exercise in the water challenges the patient in terms of respiration so it is a very good work out for the chest and breathing components of the chest. In addition, it has a positive therapeutic effect because the patient feels a degree of mobility in the water that is not available with land based therapy. Ms Moore stressed that the plaintiff would not be able to swim or exercise safely in water without the handling skills of an appropriately trained physiotherapist (Exhibit “J”, 1369). This would be in addition to the physical help provided by a carer.

398 Ms Moore agreed in cross-examination that the carer would be able to provide a basic maintenance program for joint movement but she thought that the need for specialist physiotherapy would be more than three to six times a year. She explained in re-examination that her total prescription for physiotherapy was 60 hours. This did not equate to 60 visits. She explained that although the costs of physiotherapy were based on an hourly rate, it would probably take anywhere between three or four hours for a physiotherapist to visit and give the appropriate treatment to the disabled patient on any one visit.

399 Ms Moore’s report is part of Exhibit “J”. It contains details of the equipment she believed would be beneficial and necessary for the plaintiff’s treatment. She included also an annual costing for physiotherapy treatment of E4,100.40. This was based on fifteen four-hourly sessions per year. Hydrotherapy costs were estimated at E3,600.00 per annum together with pool hire charges.

400 The defendants’ submissions were that these items should not be allowed. First, it was said that pool hire has already been allowed for in item 4.04 “leisure pursuits” (see Noreen Roche’s report in Exhibit “C”). Secondly, it was argued that hydrotherapy and physiotherapy could be administered by the carer without the continued attendance of a specialist. Thirdly, it was suggested that the physiotherapy could be performed by the visiting GP.

401 I am unable to resolve the first issue. It is true that the parties have come to an agreement about an allowance for “leisure pursuits”. It is in the agreed sum of E731.25. But I am unable to determine whether pool hire is included for hydrotherapy purposes in the rather modest amount mentioned in the Barnes Report. Nor is it clear what Miss Barnes had in mind in relation to the particular item. So far as the second and third areas of dispute are concerned, I favour the arguments of the plaintiff. It seems to me incontrovertible, having regard to the evidence, that the plaintiff has a medical need for continued physiotherapy and hydrotherapy treatments. It is true that a carer and, to a very limited degree, a general practitioner might be able to assist in the application of techniques from time to time but I consider that the plaintiff is entitled to claim an allowance for specialist treatment available from physiotherapists in relation to land and water treatment. I therefore, come to the conclusion that these items should be allowed and the charge for them is reasonable.

Capital Items

402 I am not satisfied that the evidence establishes the reasonableness of the need for the plaintiff to purchase an erection pump. The amount of E260.30 is not allowed.

Out-of-Pocket Expenses

403 The plaintiff has claimed a total amount of E142,640.00. There is a contention about one item in the list. This relates to an amount of E38,230.12. The first defendant has argued that the alterations to the parents’ house represented by this sum are not recoverable by the plaintiff. The principles which allow for domestic assistance to be provided do not extend to the provision of alterations to a parent’s house to accommodate an injured child. The State interests agree with this submission but argue, that if the submission is rejected, nothing beyond the amount of 23,000 Irish Pounds is claimable. This was the cost, agreed with the builder to make modifications to the house of the Mulligan family (Exhibit “R” 3 page 3 Q 381).

404 The plaintiff’s argument is that the cost of alteration to the parents’ home were expenses reasonably incurred to meet the emergency situation created as a result of the plaintiff’s injuries. Prior to the accident, the plaintiff was living independently in his own home and the alterations to his parents’ home were carried out reasonably to provide for his accommodation. The provision of an extended bathroom for the plaintiff’s use was of no benefit to the family and, if anything, the parent’s house has been significantly diminished in value by reason of the alterations.

405 The plaintiff’s father was asked why the plaintiff left Dun Laoghaire Rehabilitation Hospital and came to live at his parents home. (Prior to the accident it was agreed that he had been living independently at Arbour Hill). The plaintiff’s father gave the following evidence at page 90 (Exhibit “R”3): -

“He had indicated and for a while he had been in hospital for so long that the one place he wanted to get was out of the hospital. At that particular time he had been in hospital for nearly a year when he came home to us eventually in December. And you know, we had got indications that the hospital would not be keeping him any much longer than that time anyway.”

406 Mr Mulligan Senior explained that there were really no alternatives as to where the plaintiff could live at that point of time. His home at Arbour Hill was quite unsuitable, so the only alternative was to bring him to the family home. Evidence was given regarding the alterations which were made to the house (they were contained in Exhibit “J” at page 1387). All the renovations were done solely to enable the injured plaintiff to have better access inside the home. The resultant situation was not ideal but it was necessary to cope with the exigencies of having a quadriplegic in the home. For example, the rebuilding of the kitchen meant half the living area in house was lost to the family.

407 It seems that the builder selected by the plaintiff’s father, one Mr McDermott, disappeared like the fabled Irish builder in the well known tale. He disappeared with the job only partially completed even though he had been paid 18,000 Irish Pounds. Mr Mulligan agreed that the quoted price for the alterations had been 23,000 Irish Pounds but he indicated that in fact it cost a great deal more in order to complete the work once the builder had left.

408 I accept on the evidence that in December 1999 the plaintiff was on the point of being required to leave Dun Laoghaire Rehabilitation Hospital. In addition, he was understandably very anxious to be taken back fulltime into his parents home. He had been there on weekends; he was becoming used to the experience and had been in the Rehabilitation Hospital for many months. Where else was he to stay? His own home was not suitable for the purpose and, in practical terms, there was no one else to look after him beyond his own family. The combination of these circumstances made it eminently reasonable that he should be brought into his parent’s home. But that home needed extensive modification to avoid the continuation of the trauma described earlier. Thus it was that the parents set about the very difficult and inconvenient task of converting their relatively own comfortable home into a home that would be suitable for their disabled and crippled son. The reasonable basis for the claim has been established.

409 However, the plaintiff’s submission seems to fall uneasily between two stools. It is put forward as an out-of-pocket expense but I am not conscious that the evidence demonstrates that the plaintiff was ever under a legal liability to repay his parents for the alterations. Nor does it appear he has assumed such a responsibility although the claim, being as it is in the nature of an out-of-pocket expense, presumes that this is so. If such a liability can be established then the claim, subject to quantum, is a reasonable one.

410 On the other hand, the claim might have been made as part of the gratuitous care claim. On this analysis, the plaintiff would have demonstrated a need for the alterations in order that he could stay with his parents at their home following his discharge from hospital. A secondary basis for a claim deriving from the principles in van Gervan v Fenton (supra) would be that the plaintiff continued to have a need, based on his disabilities, for a modified home in the event that he wished to visit and stay at his parent’s home. This secondary claim would proceed on the assumption that the plaintiff will have obtained his own modified housing and be living independently. That situation of course has not arisen so the claim could really only be made on a gratuitous care basis related to the consideration that it was reasonable for the parents to modify the home to enable the plaintiff to stay there when he came out of hospital in December 1999. A claim on this basis would normally carry interest although this has not been sought.

411 I consider that the nature of the claim has been demonstrated to be reasonable. It should however, be allowed on the basis of the principles derived from the provision of gratuitous care (see Mercantile Mutual Insurance (Australia) Limited v Moulding & Anor (Butterworth’s unreported judgments BC9601249 at page 11)).

412 As to quantum, the amount which is recoverable must be the amount actually expended. I do not see that the plaintiff’s claim can be confined to the amount originally agreed to between Mr Mulligan and the builder especially as the builder turned out to be broadly incompetent. The actual costs are those claimed in the plaintiff’s schedule. It has not been demonstrated that those costs, though relatively substantial, are unreasonable. On the contrary, the evidence suggests that the amount is reasonable. It is also clear that there is no need for any disallowance of the claim or modification of it based on the increase to the value of the parents home. Quite clearly the substantial changes which were made, specialised as they were, tended to detract from the value of the family home rather than add to it.

413 I have attached a Schedule of Damages that is intended to reflect the various findings made in this assessment of damages. So far as the last item is concerned it will remain, for convenience sake, in the list of items claimed as an out-of-pocket expense notwithstanding that I have categorised it differently and allowed it on a different basis than that which was expressed in the plaintiff’s written submissions.

414 There are other out-of-pockets claimed where, at least at the date of the written submissions, there had not been full substantiation of the amounts claimed. I have allowed those in the attached schedule. However, should my judgment on liability be set aside as a result of appellate intervention, the precise status of those expenses may be clarified by agreement at that stage.

Fund Management

415 The final matter debated was Fund Management. The plaintiff, though severely disabled, is not handicapped mentally. Rather he is a sensible and capable young man who, no doubt with some assistance and guidance, will have little, if any, difficulty in managing his own financial affairs. In my view, he is not entitled to require the defendants to be responsible for the expenses of fund management (see my remarks in Simpson v Diamond & Anor [2001] NSWSC 925 at paras 848-858; see also Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 52, 54, 57, 62 and 67).

Orders

416 I direct the entry of verdict and judgment for each defendant in relation to the plaintiff’s claim.

I order that the plaintiff pay the costs of each defendant.

In relation to each cross-claim, I direct the entry of verdict and judgment for the cross-defendant.

I order that the plaintiff pay the costs of the successful cross-defendant in relation to each cross-claim.

The Exhibits may be returned.


SCHEDULE

Item Euro (E)

1. Past Economic Loss E 100,606.00

2. Interest on Past Economic Loss

(5.17% agreed) (To be calculated)

3. Future Economic Loss E 494,529.00

4. Past Care E 128,362.60

5. Interest on Past Care
(5.17% agreed) (To be calculated)

6. Future Care E 2,696,394.00

7. Future Nursing Care E 395,827.00

8. Future Special Needs E 706,109.06

9. Capital Costs etc E 6,409.13

10. Vehicle Transport E 93,309.00

11. Housing E 245,000.00

12. Out-of-Pocket Expenses E 142,640.00

13. General Damages E 203,500.00

14. Interest on General Damages (2% agreed) E 2,035.00

TOTAL E 5,214,720.70
A$ 9,481,310.20

Notes:

* Conversion Rates - E0.55 = A$1.00 as at 28 February 2003 (as agreed)

* Interest on Items 2 and 4 remains to be calculated

* Calculations have been made as at 28 February 2003.

**********

Last Modified: 03/19/2003