Nair-Smith v Perisher Blue Pty Ltd

[2013] NSWSC 727

Supreme Court

New South Wales

Medium Neutral Citation:	Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727
Hearing dates:	27-30 August, 3-6 & 10-12 September 2012, written submissions 19 & 28 September, and 5 October 2012
Decision date:	07 June 2013
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Defendant negligent and in breach of implied term. Further submissions and s 78B notices required before final quantum of damages can be determined.
Catchwords:	NEGLIGENCE - BREACH OF IMPLIED TERM - accident boarding chairlift - Jones v Dunkel - failure to call doctor - lift ticket - purported contractual exclusion of implied term and liability - s 5N(1) Civil Liability Act - s 68, s 68A, s 68B and s 74 Trade Practices Act - whether Civil Liability Act applies to causes of action for breach of term implied by s 74(1) arising prior to 13 July 2004 - s 109 of the Constitution - duty of care - breach - whether lift operator inattentive - risk of harm from chair arriving in defective state - precaution of lift operator observing state of chair from location near loading point - causation - s 5D - inherent risk - s 5I - dangerous recreational activity - s 5L - risk warning - s 5M - contributory negligence - breach of implied term - damages - pre-accident afflictions - post-accident restrictions - failure to provide records - whether adverse interest should be drawn - economic loss - Sections 12 and 13 of Civil Liability Act - whether rental income and management fees earnings - gratuitous attendant services - lost fees from days absent from work.
Legislation Cited:	- Civil Liability Act 2002 - ss 5B, 5C 5D, 5I, 5L, 5M, 5N, 5R - Civil Liability (Non-economic Loss) Amendment Order 2012 - Civil Liability Amendment (Personal Responsibility) Act 2002 - Competition and Consumer Act 2010 (Cth) - Judiciary Act 1903 (Cth) - s 78B - Trade Practices Act 1974 (Cth) - ss 4L, 68, 68A, 68B, 74 - Trade Practices Amendment (Liability for Recreational Services) Act 2002 (Cth) - Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth)
Cases Cited:	- Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 - Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 - Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 - Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 86 ALJR 522 - Belna Pty Ltd v Irwin [2009] NSWCA 46 - Benic v State of New South Wales [2010] NSWSC 1039 - Browne v Dunn (1893) 6 R 67 - Chapman v Hearse [1961] HCA 46; 106 CLR 112 - Davis v Bunn [1936] HCA 44; 56 CLR 246 - Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 - Fkiaras v Fkiaras [2010] NSWCA 116; 77 NSWLR 468 - Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 - Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297 - Graham v Baker [1961] HCA 48; 106 CLR 340 - Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 241 FLR 125 - Insight Vacations Pty Ltd v Young [2011] HCA 16; 243 CLR 149 - Jones v Dunkel [1959] HCA 8; 101 CLR 298 - Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 - Nair-Smith v Perisher Blue Pty Ltd [2011] NSWSC 878 - Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070 - Novakovic v Stekovic [2012] NSWCA 54 - Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 - Shaw v Thomas [2010] NSWCA 169 - SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; 225 CLR 516 - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 - Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 - Wallace v Kam [2012] NSWCA 82; Aust Tort Reports 82-101 - Wallace v Kam [2013] HCA 19; 87 ALJR 648 - Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 - Woolworths Ltd v Lawlor [2004] NSWCA 209 - Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Texts Cited:	- Review of the Law of Negligence: Final Report (September 2002) (the "Ipp Report") - Taperell, Vermeesch and Harland, Trade Practices and Consumer Protection, 3rd edition, Butterworths
Category:	Principal judgment
Parties:	Ghita Nair-Smith - Plaintiff Perisher Blue Pty Ltd - Defendant
Representation:	Counsel: D.A. Wheelahan QC, Gary J. Smith (Plaintiff) J.E. Maconachie QC, R. Montgomery (Defendant) Solicitors: Lough & Wells (Plaintiff) DibbsBarker (Defendant)
File Number(s):	2006/294818

Judgment

1. Late in the afternoon of Friday, 18 July 2003 the plaintiff, Dr Ghita Nair-Smith, was skiing at the Perisher ski fields with her family and some friends. She and two of her friends skied to the bottom of the "Perisher triple chair". They entered the area of the ski lift and moved to the designated loading point for the triple chair. Dr Nair-Smith was standing on the right from the perspective of an observer facing up the slope.

1. It is common ground that the chair they were proposing to board came down the mountain and turned the "bull wheel" of the chairlift with its safety bar in the down position and that at some point a lift operator was able to raise it. It is also common ground that, as the chair continued on its course, its right hand rail struck Dr Nair-Smith in the groin area from behind.

1. Dr Nair-Smith alleges, inter alia, that the lift operator only noticed that the safety bar was down just prior to the chair colliding with her and when it was past him. She further alleges that his actions caused the chair to move out of its alignment and strike her. She contends that the employer of the lift operator, Perisher Blue Pty Ltd ("Perisher"), was negligent and in breach of a term implied into the contract between her and Perisher under former s 74(1) of the Trade Practices Act 1974 (Cth) ("TPA"), which required that the latter provide services with due care and skill.

1. Perisher vigorously disputed these allegations. It contended, inter alia, that its operator raised the safety bar in a safe and timely manner, but that Dr Nair-Smith and her travelling companions unnecessarily panicked and she moved out of alignment with the designated loading point. It denied negligence and breach of any term implied into the contract between it and Dr Nair-Smith. It further contended that the term implied under s 74(1) was excluded by the terms of Dr Nair-Smith's lift ticket, which it said also operated to exclude all liability on the part of Perisher.

1. For the reasons that follow, I accept that Dr Nair-Smith and her travelling companions were out of alignment with the designated loading point at the time she was struck by the chair. However I conclude that this misalignment was relevantly caused by the response of one or more of them to the very late intervention of the operator in addressing the circumstances that the safety bar was down on the chair and his approaching the chair from behind.

1. I also find that there was an implied term of Dr Nair-Smith's contract with Perisher that it would provide transport services with due care and skill. This implied term was not excluded by the words printed on Dr Nair-Smith's lift ticket; nor was Perisher's liability for any breach of it or in negligence excluded or modified by those words. Further, as the accident occurred on 18 July 2003, being almost a year prior to the commencement of the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), it is arguable that, by the operation of s 109 of the Constitution, neither Dr Nair-Smith's allegation of a breach of the implied term or the assessment of the amount of damages recoverable by her in respect of any such breach are affected by the Civil Liability Act 2002 (the "CLA"). Whether that is so will have to await further submissions and the issue of notices under s 78B of the Judiciary Act 1903 (Cth). These reasons address the questions of breach and quantum on the basis that those matters are governed by the CLA.

1. I further find that the actions of the lift operator were negligent and causative of the accident. I reject the defences raised by Perisher under the CLA and the allegation of contributory negligence on the part of Dr Nair-Smith. I consider that it follows from those conclusions that Dr Nair-Smith has also established a breach of the term implied by s 74 of the TPA, even assuming the determination of that issue is governed by Part 1A of the CLA.

1. I make various findings concerning the loss occasioned to Dr Nair-Smith by reason of the accident and have assessed damages under the CLA. Although some further matters need to be addressed, it is likely that the amount recoverable if the CLA applies is likely to be modest. However, as I have indicated, it may be that the assessment of her damages is not constrained by the CLA. The parties are to be given the opportunity to address on the appropriate amount of damages recoverable in the event that I so find.

1. The balance of these reasons is structured as follows:

(1)   How Did the Accident Happen? ([10] to [79]);

(a)   The Chairlift ([14] to [26]);

(a)   Dr Nair-Smith's evidence ([27] to [36]);

(b)   Mrs Nowland's evidence ([37] to [44]);

(c)   Mr Nowland's evidence ([45] to [46]);

(d)   Mr Smith's evidence ([47] to [48]);

(e)   Mr Lofberg's evidence ([49] to [56]);

(f)   Dr Nair-Smith's alignment at the time of the accident ([57] to [66]);

(g) Mr Lofberg's position and response ([67] to [79].

(2)   The cause of action in contract and the purported exclusion of liability ([80] to [125]);

(3)   Negligence ([123] to [196]);

(a)   Duty of Care ([129] to [134]);

(b)   Breach of Duty ([135] to [167]);

(c)   Causation ([168] to [171]);

(d) Section 5I - Inherent risk ([172] to [173]);

(e) Section 5L - Dangerous Recreational Activity and Obvious Risk ([174] to [181]);

(f) Section 5M - Risk Warning ([182] to [193]);

(g)   Section 5R - Contributory Negligence ([194] to [196]).

(4) Breach of the term implied by s 74(1) of the TPA ([197]);

(5)   Quantum ([198] to [358]);

(a)   Pre-accident Condition ([204] to [218]);

(b)   Post-accident Treatment ([219] to [246]);

(c)   Post-accident Functioning - Work Hours ([247] to [271]);

(d)   Post-accident Functioning - Recreational Activities and Personal Relations ([272] to [279]);

(e)   Need for Assistance ([280] to [283]);

(f)   Psychiatric Evidence ([284] to [290]);

(g)   Medico-legal Diagnosis and Prognosis ([291] to [311]);

(h) Non-economic Loss - CLA ([312]);

(i)   Non-economic Loss - General Law ([313]);

(j)   Economic Loss - General ([314] to [333]);

(k) Economic Loss - CLA ([334] to [347]);

(l)   Economic Loss - General Law ([348]);

(m) Domestic Assistance - Past and Future - CLA ([349];

(n)   Domestic Assistance - General Law ([350]);

(o)   Out of Pocket Expenses ([351] to [355]).

(6)   Future Progress ([356] to [358]).

(1) How did the accident happen?

1. Affidavit and oral evidence concerning the accident was provided by Dr Nair-Smith and the two friends with her on the chair, Mr and Mrs Nowland. Her husband, Mr Andrew Smith, also gave evidence of a conversation with Mr Nowland immediately after the accident. Perisher adduced evidence from the lift operator on duty at the time of the accident, Mr Michael Lofberg. Some of these witnesses made statements on the evening of the accident.

1. I did not form an adverse view of the honesty of any of these witnesses. Neither of the very experienced Queens Counsel who appeared for the parties submitted that any of these witnesses was not giving truthful evidence in relation to the events surrounding the accident, nor was any such suggestion put to any of the witnesses in cross examination. However the hearing was conducted more than nine years after the day of the accident. The disputed evidence as to what occurred is principally concerned with events that took place over a matter of seconds. In those circumstances there is an obvious potential for the witnesses to have been mistaken in their recollections when giving evidence.

1. In these circumstances, my assessment of their evidence gives primacy to the objective evidence concerning the characteristics and operation of the chairlift and significant weight to aspects of the accounts given by the witnesses on the evening of the accident allowing for the limitations under which those statements were made.

1. Both parties adduced expert evidence which addressed the operation of the chairlift as well as the appropriate standard of care expected of an operator in Perisher's position. Dr Nair-Smith adduced evidence from Mr Mark Dohrmann, a qualified engineer and ergonomics expert (see Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070 at [7] to [13]). Perisher adduced evidence from an engineer, Mr Charles Needham. I describe his evidence below at [58] to [61]. It also adduced evidence from Mr John Gow, who has extensive experience in the conduct of ski resorts and the operation of ski lifts.

The Chairlift

1. As its name implies, the triple chair can accommodate three adult skiers on each chair. Skiers travel up a ski slope on the chair which is suspended from a moving cable. The cable is suspended from towers placed at regular intervals on the hill. At the bottom of the ski run is the loading station for the chairlift. For an observer placed immediately behind the end of that station facing up the slope, the chairs come down the hill on the left hand side and move into an enclosed area. Within the enclosed area the cable with the attached chairs passes around a large wheel (the "bull wheel") before travelling back up the hill on the observer's right.

1. The chairs are attached to the cable by a clamp on the end of a single vertical piece of metal. In turn, that piece of metal attaches to the top of the frame of the chair. In its natural position the chair leans back. When skiers are placed in the chair, a safety bar is pulled over the front of them. Prior to skiers boarding, the bar is or should be in the up position. This bar extends to the back of the chair and pivots on an axis that is approximately half way up the height of the chair. From my observation of a video of the chairlift in operation (see below), it appears to be easy for a person standing beside the chair to move the safety bar up or down. There are side bars or rails on each chair.

1. In the course of normal operations the chairs move at a regular speed. They do not slow down or stop to allow skiers to board or alight. Skiers board a chair by forming a line towards the back and on the right hand side of the loading station (from the perspective of the observer looking up the slope). At the front of the queue is a pair of gates that open automatically after a chair passes around the bull wheel to enable the skier(s) to board the next chair. The skier(s) move forward until they arrive at a loading point designated by a line marked on the platform. In doing so they traverse a wooden platform. They move across a part of the platform which is packed with snow and is raised above its surrounds at a height which appears to be about 5cm. At this point the next chair enters and then exits the bull wheel. Usually its bar is in the raised position as it approaches the skier. The skier's body and skis face away from the approaching chair and up the hill. They usually have their ski poles in their hands. The skier mounts the chair by sitting down on the approaching chair. They receive assistance from a lift operator. The skiers are meant to pull the safety bar down in front of them as they travel up the hill. Just beyond the loading point, the platform drops away.

1. It is critical to note that the chairs are capable of swinging back and forth in the line of the cable ("pitch") and from side to side perpendicular to the cable ("roll"). The possible extent to which the chair can rotate around its vertical axis ("yaw") was the subject of some evidence from Mr Needham, which I set out below.

1. There were a number of agreed facts concerning the operation and dimensions of the chairlift. The weight of a chair is approximately 95 to 100kg. The height of the seat is 50cm. When the safety bar is down, the front edge of the safety bar is approximately 85 to 90cm above the cleared snow. The top part of the fixed side rail on the front of a chair is approximately 75cm above the loading ramp. It was this part of the chair that struck Dr Nair-Smith.

1. The regular speed of the chairlift is 2.3 metres per second. On a chair's incoming journey to the bull wheel, the distance from the incoming ramp edge to the centre line of the bull wheel is 7.1 metres. The distance from the exit point of the bull wheel to the load point is 1.8 metres. The joint experts' report also stated that the "[d]istance around [the] bull wheel" was 5.6 metres, which appears to be a reference to half of the circumference. Thus the time from the chair entering the bull wheel (as opposed to the loading station) to the loading point is 3.2 seconds, and from it exiting the bull wheel to the loading point is 0.78 seconds. The interval between chairs is 19.055 metres or 8.28 seconds.

1. It was agreed, except by Mr Dohrmann, that there are at least two sets of controls with emergency stop buttons. Depicted in one of the videos described next is a button that can slow the speed of the chairs. One is located on the lift operator's hut which is near the loading point. The time interval between the pressing of the emergency stop button and the lift coming to a complete halt is 2.5 seconds for a loaded chair and 3.6 seconds for an unloaded chair. The experts noted that the "chairs would not necessarily come to a stop in these times". This qualification was not explained further. The effect of pressing the stop button is that the haul rope decelerates and stops in 2.9 metres for a loaded chairlift and 4.1 metres for an unloaded chairlift.

1. A video was tendered showing the "normal loading" of the chairlift ("the First Video"). In the initial part of the video, the camera operator is viewing the chairlift from a position just uphill from the loading point. The video depicts a queue of skiers moving quickly through the automatic gates. The skiers and snowboarders can be seen to move to the loading point and board the chair with the skiers holding their poles in their hands. In the latter part of the video the camera operator is positioned on the other side of the chairlift with the bull wheel to their right, and then at the front of the skiers' queue looking uphill. The lift operator is usually located about half a metre in front of the loading point, that is, between the loading point and the automatic gates in front of the queue of boarding skiers.

1. Two matters should be noted about the scene depicted in that video.

1. First, the video shows one lift operator standing near the loading point. He is facing towards the queue of skiers and has an uninterrupted view of the chair as it travels down hill, approaches the bull wheel, passes around it and comes out the other side. This operator assists skiers and snowboarders to mount the chair. In circumstances where there is a queue of skiers, and given the speed of the chairlift, there is no time for that operator to attend to any other duties. In the latter part of the video, where the camera operator is looking uphill, there are occasions when the ski queue is empty. On those occasions the operator briefly performs other tasks such as sweeping the platform until skiers arrive.

1. Second, most of the skiers and snowboarders in the video board a chair in pairs. In some instances there are three adults or older teenagers, and on a couple of those occasions they struggle to all fit on the chair. In such cases the skier on the outside of the group has their outer ski near the raised edge of the snow and ice on the platform that I have described in [16]. In one instance, which is three minutes and thirty three seconds into the video, a teenage skier closest to the lift operator has their ski slip off that edge and experiences some difficulty in boarding the chair. Twice in his evidence, Mr Lofberg commented on the difficulties experienced when three people attempted to board the triple chair.

1. Another video was tendered of the chairlift in operation ("the Second Video"). This video is taken from the incoming side of the lift station, with the bull wheel to the right of the camera operator. It is two minutes and thirty-four seconds in duration. It was common ground that it was a staged demonstration designed to show how a lift operator could deal with the circumstance that a safety bar on a chair was down as it turned on the bull wheel. In the demonstration someone near the camera operator is placing the safety bar in the down position for every second or third chair. The lift operator who is assisting the skiers to mount the chairs is clearly aware of the safety bar being down at a point prior to the chair entering the bull wheel. As the chair enters the bull wheel the lift operator is positioned about half a metre forward of the loading point. His reaction to noticing the bar is down is to step forward approximately another half a metre towards the automatic gates and bump the bar up. At that point he is approximately a metre to a metre and a half forward of the marked loading line. He places his right hand on the safety bar to raise it at least a metre prior to it making contact with the assembled skiers. The first part of this video depicts the operator performing this task while the chairlift is operating at a slower speed than normal. After one minute and thirty-eight seconds the operator pushes a button on the lift operator's hut near the loading point, and the speed of the chairlift increases. At both speeds the lift operator does not experience any difficulty in bumping the safety bar in the manner I have indicated.

1. In considering the relevance of this video, two limitations on this demonstration should be noted. First, this demonstration does not address the circumstance of an operator located at the usual position for loading skiers (ie half a metre forward of the loading point) who does not see the bar in the down position until it is past the bull wheel and near the skiers. Second, the demonstration does not address the circumstance of the lift operator being further in front of the loading point such as near the exit point of the bull wheel or at the gates and only becoming aware that the safety bar is down when the chair is either adjacent to them or between them and the skiers waiting at the loading point.

Dr Nair-Smith's Evidence

1. In the afternoon of 18 July 2003, Dr Nair-Smith was at the Perisher ski fields with her husband, her two children, her friends Peter and Alison Nowland and their two children. Dr Nair-Smith had been a skier for approximately 25 years. She had mainly skied in Australia but had also skied in Europe and New Zealand. She considered herself an advanced skier.

1. At around 3.45pm, Dr Nair-Smith and Mr and Mrs Nowland skied down the triple chair slope for their final run for the day. Dr Nair-Smith stated that she had not used the triple chair previously that day, but had "used it on literally hundreds of occasions previously over the years". There was no queue as they entered the chairlift area. In her affidavit sworn 13 December 2009 (her "first affidavit") Dr Nair-Smith said that there was no one at the gate but that there were two lift attendants in the area. She said one was standing near the loading position "about two metres to the side of the loading run and a similar distance back from the loading position". The second was on her left on the other side of the bull wheel "about where the chair commences the turn around the bullwheel". She said he had his back to her and was shovelling snow.

1. In her first affidavit, Dr Nair-Smith said the first attendant was initially facing away from the loading point, but that he turned towards their group and indicated they should move towards the loading point. She said they waited for a chair to pass in front and then skied to the loading position. She was on the outside of the group. She stood with her skis parallel to each other and faced forwards. She had her ski poles in one hand. She said she was "twisted slightly and looking over [her] left shoulder".

1. In her first affidavit Dr Nair-Smith stated that the following occurred:

"Almost as soon as we reached the correct loading position, I heard Alison yell out 'The bar's down'.

I immediately looked to where our chair was coming from, however the chair had passed behind the bullwheel and I could not see it immediately.

The chair then came out from behind the bullwheel and approached us on its track. I could see that the safety bar was in the down position. I yelled out the 'The bar'. Alison was also yelling, however I cannot recall specifically what she was saying.

When the chair was about one metre away from me, the lift attendant nearest to me lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back toward him and at an angle, flipped the safety bar back up with his right hand, then let go of the chair."

1. Dr Nair-Smith said the chair then "came at the three of us at an angle" and at a higher speed than normal. She said that she did not change her body or ski alignment. She said that the armrest of the chair came straight up between her legs and impacted with her "right sacroiliac joint, [her] left vulva and [her] left pubic ramus". She felt immediate and intense pain. She said she remained straddled on the armrest but was eventually pulled into her seat by Mr Nowland. They attracted an operator's attention at the upper station of the chairlift. Eventually a ski patrol arrived and she was taken to a medical centre.

1. In cross examination Dr Nair-Smith maintained that she was standing at the proper place at the loading point at the time of the accident. She said that the lift operator was standing closer to the point at which the chair left the bull wheel rather than the loading point. Later in cross examination she was shown the second video. She stated that the lift operator was "behind the building", which was a reference to a position between the lift operator's hut and the queue of skiers. She said he was facing away from the skiers shovelling snow. It was suggested that she was not concentrating at the time she was trying to mount the chair. She answered:

"It happened with me watching him do it, yelling at him to notice that it was down, to get his attention, and, when I finally did get his attention, he had to lunge forward, grab at the chair, flick the arm rest back and let the chair go and, in doing so, the chair hit me at an angle, hit me on my right buttock, impaled me on the arm rest ..."

1. The reference to "lunge forward" meant lunge in a direction towards her. Dr Nair-Smith was conveying that the chair had passed the lift operator who then grabbed it and pulled it back with his left hand while "bumping" the safety bar over with his right hand.

1. On the evening of the accident Dr Nair-Smith completed a document entitled "Injured Persons Statement". She stated that she was in pain and upset at the time she completed it. In a section which asked for her narrative description of the incident she stated:

"... loading on Mt Perisher triple chair the bail arm was down as the chair came around the bull wheel. I was standing on the right with two other friends lift operator saw it ran out and tried to pull the chair bail arm up the chair was pulled up but the arm rail hit me between the legs the chair continued to go up whilst I stradled [sic] the chair handrail then the next person next to me helped me onto the chair; the chair was not stopped. Approx. 2-3 meters up from load I was back in the chair; we then rode the chair to the top when we yelled at the operator to stop the chair which he did before the net it then was then restarted stopped at unload the operator then helped me off then patrol were called." (emphasis added)

1. Dr Nair-Smith agreed that there was nothing in this statement about the chair being pulled out of its usual alignment and swinging back at an angle. However, as I will explain, consistent with other parts of the evidence it does indicate a late observation by the lift operator that the bar was down. Generally there should be no occasion for the lift operator to "run" to place the safety bar up if it emerges from the bull wheel in a down position, and the operator is only half a metre forward of the loading point.

1. In her first affidavit Dr Nair-Smith also stated:

"In all the years I have been skiing I have seen safety bars down as they approached me on maybe two or three occasions. On those occasions the lift attendant located near the loading area would simply move across to the chair and lift the bar into the upright position, several metres before it got to me, giving me plenty of time to safely sit."

Mrs Nowland's Evidence

1. In her affidavit sworn 15 December 2009 Mrs Nowland describes herself as an "expert skier". She states that she has been skiing since she was three years of age. Her parents were involved in the building of a ski lodge at Perisher. She took part in Perisher's racing school between the ages of fourteen and sixteen, competed in interclub skiing and represented her university. She has known Dr Nair-Smith for over twenty years and has spent a number of holidays skiing with her.

1. Mrs Nowland also said that there was no queue at the loading station when she, her husband and Dr Nair-Smith arrived. However she describes the lift operators as being in a different position to the description given by Dr Nair-Smith. She says that one of them was shovelling snow near the queuing point, but had his back to the chairlift. She said that the other lift operator was "up near the booth, a couple of metres back [from] and to the side of the loading point for the chairlift". Mrs Nowland stated that she moved through the gate to the loading position. She was positioned on the left facing up the hill, her husband was in the middle and Dr Nair-Smith was on the right.

1. She stated that as she arrived at the loading point she looked across to her left and saw the safety bar down on the next chair. She said that she yelled "The bar's down. The bar's down". She recalled Dr Nair-Smith and her husband yelling out but she could not recall what they said. Her description continued as follows:

"The chair then came out the other side of the bullwheel behind us. At this time I was looking over my right shoulder. I could see the chair approaching us and the safety bar was still in the down position. The three of us were still calling out. I was yelling, words to the effect 'The bar's down'.

The lifty who was nearest the loading point lunged at the chair. As best I can recall he grabbed the chair's closest corner with his left hand, then with his right hand grabbed the safety bar and flung it up, wrenching it. As he did so he also pulled the chair toward him, off the chair's normal alignment.

The lifty then let go of the chair and it came at us at an angle and faster than I expected.

I was still looking over my right shoulder at this point. My skis and feet had remained in the correct front alignment throughout the whole process. The chair first came into contact with my right buttock and I scrambled to sit properly on the seat." (emphasis added)

1. Mrs Nowland also completed a statement on the night of the accident. The relevant part stated:

"Three friends together proceeded up the short queue, through red barriers properly and to the take off/sit down line. It was 20 minutes before last run. The chair came around the bullwheel and was right up to us as we began to sit when we all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way as the liftie dived and raised the bar and pulled the chair sideways towards the Leichhardt lift side. We (me & my husband) managed to sit sideways and our friend was hit by the chair about twice full force because the chair had been held. It hit her directly between the legs with the chair metal arm rest bar.

The chair arm rest was what lifted her up and my husband lifted her onto the chair otherwise she would have fallen. The chair at no time stopped or slowed ..." (emphasis added)

1. Four matters should be noted about Mrs Nowland's evidence. The first concerns her observations of the location of the lift operator. I have noted what she stated in her affidavit at [38]. In cross examination she agreed that in an affidavit sworn on 10 July 2009, but not read, she had described the second lift operator as being closer to the loading point. The statement made by her on the evening of the accident does not mention that operator's location at all.

1. The second concerns the point in time when she noticed that the safety bar was down. Her statement suggests that she only realised at the very last instant that the bar was down, namely when "we began to sit". However, in her affidavit Mrs Nowland stated that she saw the bar was down when she got to the loading point and saw the chair they were to sit on before it entered the bull wheel. She maintained this in cross examination.

1. The third concerns whether Mrs Nowland, her husband and Dr Nair-Smith moved out of alignment when boarding the triple chair. Her statement suggests they did move out of alignment ("[w]e all tried to leap out of the way"). In her affidavit (and her oral evidence) she stated that they maintained the correct position at the loading point. Her explanation for stating to the contrary in her witness statement made on the day was that the statement was made at "7 o'clock at night. [She] was very stressed. [She] had a short period of time to make a witness statement. [Her] main focus was to record that [her] friend had been injured".

1. The fourth concerns the timing of the reaction of the lift operator. One consistent aspect of Mr Nowland's evidence is that the lift operator reacted late. In her affidavit she describes him as having "lunged". In cross examination it was suggested that this description was one that she may have seized upon in discussing the events with Dr Nair-Smith and her husband in the many years since the accident. In response, she stated that the chair was about half a metre from her when the operator pulled the chair towards him. That evidence and the descriptions of this aspect of the events in her affidavit are consistent with her description of the lift operator's actions in her statement. The statement suggests a late realisation on his part that the bar was down ("was right up to us" and "liftie dived").

Mr Nowland's evidence

1. Mr Nowland was also an experienced skier. He did not recall much of a queue at the chairlift station. He described two lift attendants being present. Mr Nowland stated that one attendant was shovelling snow near the entrance to the queue with his back to the chairlift and the other was taking down ropes that formed part of the queue line. He said he also had his back to the chairlift and was within a few metres, back and to the side of the loading point. In his affidavit sworn 16 December 2009, he described what happened as follows:

"When we arrived at the loading point I heard Alison yell out 'The bar's down.'

I immediately looked around over my left shoulder and saw that the safety bar was down on a chair that was just entering the bullwheel.

When I saw the safety bar I immediately yelled out 'The bar's down'. I heard both Alison and Ghita also yell out 'The bar's down'.

I then looked to over my right shoulder as the chair exited the bullwheel. The safety bar was still down.

At that point I began to consider quickly what possible options I had. I realised I could not go to my left or my right and I anticipated that I would simply have to try to heave myself over the top of the chair.

As the chair approached us I saw the lifty closest to us grab the chair. He was on the right side of the chair. I believe that he grabbed the back of the chair with his left hand and at the same time pulled the chair toward him and back, and lifted the safety bar with his right hand.

After pulling up the safety bar he then let go of the chair. The chair came at us very quickly, swaying and at an angle.

During this whole procedure I had not changed the alignment of my skis. They were still facing forward.

The armrest of the chair struck Ghita first. To me the chair almost came to a complete halt at that time. I was able to sit down on the chair.

Whilst the lifty had grabbed the chair and pulled up the safety bar, I was looking at him over my right shoulder. Ghita was in my vision the whole time. I did not observe her to change her alignment in any way." (emphasis added)

1. In cross examination Mr Nowland stated that he heard his wife yell out that the safety bar was down before the chair entered the bull wheel, although he later stated that he heard both his wife and Dr Nair-Smith yelling out when it was "in the bullwheel". He was adamant that the lift operator pulled it both back and towards him and it came at them swaying at an angle.

Mr Smith's Evidence

1. Mr Smith did not witness the events that led to his wife being injured. He was skiing with the children towards the bottom of the triple chairlift as his injured wife was passing overhead. He and the children entered the lift station shortly afterwards. He noticed that there were two operators. He said there was no one in front of him in the queue. The chair he rode on was five or six chairs behind his wife's chair but there was no one travelling between them. When he alighted he noticed that his wife was in distress. He recounted a conversation with Mr Nowland as follows:

Mr Smith: "What's happened?"

Mr Nowland: "We were all standing in position as usual waiting [for] the chair, we turned around and to our horror we saw the chairlift bearing down on us with the safety bar down. We had nowhere to go. The lifty lunged for the chair and managed to raise the bar. As a consequence, the chair swung and the arm of the chair struck Ghita between the legs. She was carried by the chair forward and upward. I grabbed her to prevent her from falling off ..." (emphasis added)

1. I allowed this evidence on the basis that, as Mr Nowland was to be called, it was admissible pursuant to s 64(3) of the Evidence Act 1995. It is notable that it also suggests a last minute realisation that the bar was down and late movement by the lift operator ("lifty lunged").

Mr Lofberg's evidence

1. Mr Lofberg attached two documents to his affidavit, both of which he completed on the day of the accident, being a witness statement and a principal lift operator's statement. In the witness statement he stated:

"I was bumping chairs getting the people in position at the load line when just before the chair got to them I realised the safety bar was down. I quickly flicked it up and bumped the chair back, it appeared the people got on the chair without incident ... [another operator] rang up and said that one of the ladies hurt her groin on the arm rest ..." (emphasis added)

1. In the principal lift operator's statement Mr Lofberg stated:

"... when chair came around I noticed safety bar was down but I got it up in time ... I didn't notice any problem when loading her ... I noticed the safety bar was down. Took a couple of steps towards chair from load flipped the bar up Then I pulled the chair back not to the side. The chair was ready for a load they seemed to panic but also seemed to be loaded properly."

1. In his affidavit Mr Lofberg recalled seeing the side rail of the chair passing between the "legs of the female passenger", although he says he did not realise she had suffered any harm. He states that it was relatively quiet at the time of the incident and he remembered "watching Dr Nair-Smith and her companions move forward to the load point and then observing the chair coming around the bullwheel". He states that he was standing "probably 2 metres" from the loading point but does not recall the "exact distance". He says that he saw the bar was down as the chair came around the bull wheel and that he "stepped forward and, as I met the chair, flicked the safety bar up". He states that at that point the chair was approximately "1.5 - 2 metres from where Dr Nair-Smith and her friends were standing on the load line". He said the bar was in the up position "for about 1.5 metres before the chair reached Dr Nair-Smith and her companions" and that he "still had time to bump the chair in the normal way". He denied "lunging" for the approaching chair. He could not recall what it was about their behaviour that suggested that they panicked, but denied that their shouting drew his attention to the bar being down or that the chair was swinging before it arrived at the load point.

1. Three matters should be noted about Mr Lofberg's evidence. First, in his affidavit Mr Lofberg stated:

"If Dr Nair-Smith had remained in the correct position at the load point, she would not have straddled the side rail and would have sat down on the chair normally."

This is a curious statement in that nowhere in his affidavit or in either statement that he made on the day of the accident did Mr Lofberg state that Dr Nair-Smith was not correctly aligned or positioned when the chair arrived. In cross examination he stated he agreed that his recollection was that they were standing in the correct position. However, his description in the principal lift operator's statement of them panicking is consistent with agitated jostling as the chair came close to the loading point.

1. Second, Mr Lofberg maintained in his evidence that he did not pull the chair to the side but only pulled it back, although it was not expressed with any degree of certitude ("my belief was I pulled the chair back, like I pull every other chair. I don't remember pulling the chair to the side").

1. Third, Mr Lofberg was unsure of what position he was in when he observed the bar was down. The estimates he provides in his affidavit noted above place him at the point the chair exits the bull wheel, or even at the skiers' entry gate. Yet at times in his evidence he also stated that he stepped forward (ie away from the loading point) towards the chair after he became aware that the bar was down.

1. In cross examination it was suggested to Mr Lofberg that he was attending to other duties as the chair came around the bull wheel, to which he replied that he could not "remember exactly what [he] was doing at the time." He accepted that he had a vague recollection of hearing people call out that the bar was down. In response to the suggestion that it was those voices that alerted him to the fact that the bar was down, he stated "[i]t could have been that, but I'm not sure". It was suggested to him that the chair with the bar down was very close to the skiers when he realised that it was down. He responded that he was "not sure exactly [of] the position of the chair when [he] noticed it ..." He was referred to the italicised portion of his witness statement and agreed that it suggested that the chair was close to the skiers when he noticed that the bar was up. He was asked:

"Q. So without being precise in terms of distance or time, you're certainly conveying the impression [that it was close to the skiers] there?

A. The last minute I've seen it.

Q. Yes, the last minute?

A. If I've written that, it's probably correct.

Q. I suggest to you that that caused you to move quickly to rectify the position?

A. Yes, so I can get the bar up before it got to them. I didn't want it to hit them.

...

Q. I'm asking you to consider this, I suggest to you that you came from behind the chair?

A. Yeah, I don't believe that was true.

Q. Why not?

A. From the memory of the time, I think I flicked it up coming towards me. I don't remember walking around and flicking it up."

1. Notwithstanding this last answer, the combination of Mr Lofberg's acceptance that he only noticed the down safety bar late, and his estimate of where he was located at that time, make it very likely that he grabbed the chair from behind and when it was very close to colliding with the skiers.

Dr Nair-Smith's alignment at the time of the accident

1. The first question I will address is the location of Dr Nair-Smith at the time she was struck by the chair. I accept that when they arrived at the loading point Dr Nair-Smith and her friends were correctly aligned.

1. As I have stated, a qualified engineer, Mr Needham, prepared a report concerning the triple chair's design, behaviour and operation. I have described some aspects of that report already. In addition, Mr Needham described the yaw (or capacity to twist) of the triple chair as being "constrained by the rigidity of the chair suspension and the high tension in the haul rope". He found that "[n]o significant amount of twist could be detected ... when twisting of the chair was attempted manually". Mr Dohrmann did not suggest the contrary.

1. From the perspective of an observer looking up the hill from the behind the chair, Dr Nair-Smith was positioned on the right hand side of her friends and was struck between the legs by the right hand side rail. As there was no capacity for the chair to twist, this means that she could only have been struck either because she was no longer aligned in the proper loading position for the skier on the right hand side of a group of three but had instead moved to the right or, after the intervention of Mr Lofberg, the chair had swung to the left behind her.

1. In his report Mr Needham modelled the capacity of the chair to have been pulled out of alignment by the lift operator pulling the chair towards himself and then to have swung back to the left side and struck Dr Nair-Smith if she was standing in the correct place of alignment. Mr Needham modelled the movement of the chair using the classic formulas describing the operation of pendulums. For a pendulum the size of the chair they yielded a period of motion of 3.2 seconds. This assumes that the chair's operation in the roll and pitch directions is frictionless. Mr Needham then measured its actual swing period as 3.0 seconds and its roll period as 2.6 seconds. This is reasonably proximate to his calculation of 3.2 seconds, allowing for friction. The roll period is of particular significance. It is far too large to enable the chair to have rolled to an alignment left of the skiers by the time it reached the loading point as a result of the lift operator having pulled it to the right and let it go sometime after it left the bull wheel.

1. Mr Needham also calculated the effect of differing amounts of force being applied by the lift operator at different angles. In his oral evidence he explained that it was possible to pull the chair to the side some 800mm. In the end those calculations confirmed that the application of force to the right at an angle between 90 and 180 degrees meant that "... it was unlikely that the chair may have been misaligned to the left at the time of the subject event. The dynamic response of the chair is such that it would have remained to the right under all likely conditions" (emphasis added).

1. This aspect of Mr Needham's observations is reflected in the responses that are recorded in the minutes of the joint conclave involving him, Mr Gow and Mr Dohrmann. They were given a set of assumptions that approximate to the version contended for by Dr Nair-Smith in that they involved her and her companions not moving out of alignment and the late intervention of a lift attendant who pulled the chair back and towards him (ie on the right), flicking the safety bar and releasing the chair which then travelled at the group "at an angle and faster than its normal speed". Both Mr Gow and Mr Needham did not accept that such a scenario was possible in that they considered that it was not possible for the "chair to have rolled to the left and to have accelerated by the time it reached the load line". Mr Needham explained that this was so because his calculations as to the roll period for the chair meant that it could never have had enough time to swing back to the left. He did accept that the chair could have accelerated, or at least appeared to the skier to have accelerated, as contemplated by the question, bearing in mind the combined effect of the pitch movement of the chair and the speed of the tow rope.

1. Mr Dohrmann's opinion was that the scenario outlined was possible. In cross examination he explained that he regarded it as possible if the lift operator had applied force to push the chair away from himself when he released it. Mr Dohrmann was criticised for doing so on the basis that that was said to be wholly speculative on his part. However, Mr Dohrmann was asked whether a version of events was possible. In answering that question he sought to reconcile those assumptions with the known characteristics of the chair, and did so by explaining that the assumed scenario was possible with the additional circumstance of the lift operator pushing the chair to the left.

1. Nevertheless, of the various descriptions of the accident, nothing provides much support for the supposition that Mr Lofberg pushed the chair to the left when he let go. It was not suggested to Mr Lofberg in cross examination that he did that. As a matter of common sense there seems little reason why he would do so. In any event, given the time frames involved and Mr Needham's calculations, it seems to me very unlikely that he could have applied sufficient force to drive it to the left before it struck Dr Nair-Smith. I am not satisfied that he did so.

1. In my view this leads to the inevitable conclusion that the point of collision between the right hand rail of the chair and Dr Nair-Smith's pelvic area was at some point to the right of the designated loading point on the raised area noted in [16] from the perspective of an observer looking up the slope. Thus, while I accept that Dr Nair-Smith and her travelling companions lined up at the loading point in the correct position, I also find that by the time the chair arrived, at least one of her legs had moved off the slightly elevated platform to the right. I note that this finding is contrary to the evidence of Dr Nair-Smith, Mrs Nowland, Mr Nowland and it seems Mr Lofberg. However, for the reasons I have already indicated, I give primacy to the material concerning the characteristics and operation of the triple chair.

1. The finding that Dr Nair-Smith was out of alignment when hit by the chair is supported by that part of Mrs Nowland's statement in which she stated that "[w]e all tried to leap out of the way", although I am only prepared to accept that as a description of her reaction and not necessarily that of her husband or Dr Nair-Smith. I have already described the narrowness of the raised part of the loading platform if three people are attempting to board the triple chair. In the situation described by Mrs Nowland in her statement, it would not take much jostling by even only one member of a threesome to cause a person on the outside such as Dr Nair-Smith to move out of alignment. This is especially so in this case given that, of the three of them, Dr Nair-Smith was the slightest in build. Thus, while I accept that Dr Nair-Smith was out of alignment with the chair when it struck her, I am not satisfied that that was a result of any panicked reaction by her. Instead it could have been a result of a panicked reaction by her or one or more of her travelling companions (or all three) and their jostling her. The next question that arises is what caused that reaction.

Mr Lofberg's position and response

1. I accept the evidence of each of Dr Nair-Smith, Mrs Nowland and Mr Nowland to the extent that they described themselves as experienced skiers. I also accept Dr Nair-Smith's evidence that she had previously observed situations in which the safety bar was down and the lift operator handled that circumstance with comparative ease. In the ordinary course I doubt that skiers of their experience would react adversely to a safety bar being down if they were aware that the lift operator was aware of the problem in sufficient time to address it.

1. One common feature of three of the four statements completed on the day of the accident is their description of a late or rushed reaction by Mr Lofberg to the safety bar being down. Dr Nair-Smith's statement referred to the operator as having "[r]un out". Mrs Nowland's statement referred to the "liftie" as having "dived". Mr Lofberg's statement described himself as having only realised the safety bar was down "just before the chair got to them". Each of the descriptions suggests a very different image to the scenario shown in the Second Video, where at both speeds the lift operator addresses the bar being down at least a metre to a metre and a half prior to the loading point with considerable ease. In cross examination Mr Lofberg accepted that he noticed it late (the "last minute"). He did not deny that his attention was directed to it by people yelling that the bar was down.

1. The evidence concerning the position of Mr Lofberg when he noticed that the safety bar was down was less clear. His account that he was standing "2 metres" from the loading point places the exit point from the bull wheel between him and the loading point. I have described Mr Lofberg's oral evidence on this topic at [55]. The descriptions of Dr Nair-Smith and Mrs Nowland in their statements suggest that when he acted to raise the safety bar he was not adjacent to it, but instead had to move some distance ("ran out" and "dived"). The other parts of the evidence describing his manoeuvre as a "lunge" all involve a movement on his part. They are inconsistent with him being located just in front of the loading point and immediately adjacent to the chair when he grabbed it. They are also inconsistent with the suggestion that he then took a calm step forward to lift the bar. To the contrary, I am satisfied that Mr Lofberg was at a point no closer to the loading point than the exit point of the bull wheel when he was made aware that the safety bar was down. From that point he ran, dived or lunged at the chair from behind, catching it just prior to it colliding with Dr Nair-Smith and her travelling companions. He was able to pull the chair back on its axis at that point and bump the safety bar, presumably with his right hand. I think it likely he pulled with some force out of alignment to the right. For the reasons I have already indicated, that did not result in the chair swinging to such a degree that it was aligned to the left of the raised platform at the loading point.

1. Senior Counsel for Perisher, Mr Maconachie QC, noted that a lot of the evidence had an impressionistic quality to it, in that the witnesses used descriptions like "late", "close", "lunged" etc. He also noted that the various estimates of distance were questionable in that they appear have provided them without reference to the actual measurements of the loading area for the chairlift. These points have some force, but they should not be taken too far. All of the witnesses were intelligent people with significant personal experience of using chairlifts. In the case of both Mr Lofberg and Dr Nair-Smith, they had previous experience of observing the safety bar being down and being bumped up by the lift operator in a safe manner. The description of the operator being late in bumping the bar, which certainly caused apprehension and panic in at least Mrs Nowland, is very different to that situation. In light of the configuration of the chair I am satisfied that it came within less than half a metre and probably less than 300mm of contact with the skiers. It is to be remembered that the axis point at the top of the chair enabled Mr Lofberg to pull the chair back with his left hand while he lifted the safety bar with his right. The subsequent behaviour of the chair under that scenario would account for the acceleration of the chair that the skiers observed.

1. What drew Mr Lofberg's attention to the safety bar being down? I accept the evidence of Mr Nowland and Dr Nair-Smith that they each made an observation as the chair exited the bull wheel and yelled out to Mr Lofberg. In the ordinary course that is when I would expected a skier to turn and observe the chair having put their poles in their hands. Mr Smith's description of his conversation with Mr Nowland, in which the latter stated "we saw the chairlift bearing down on us", is consistent with this. In his evidence Mr Lofberg accepted that it could have been the voices of the skiers that alerted him to the fact that the safety bar was down (see [55]).

1. Leaving aside the finding in [65], these findings are consistent with the evidence of Dr Nair-Smith and Mr Nowland, as well as the statement of Mrs Nowland. A chair that was pulled to the right and let go might appear to them to come at an angle, even if it could not twist. The misalignment of Dr Nair-Smith was the consequence of jostling in reaction to the chair coming so close with a safety bar down, although not necessarily by her. As Mrs Nowland stated in her statement: "... we all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way as the liftie dived and raised the bar and pulled the chair sideways towards the [right]". Mrs Nowland's statement was prepared shortly after the accident. It may be that she was stressed when she prepared it, but she was not in pain as Dr Nair-Smith was at that time. I do not accept that it necessarily gives an accurate account of Dr Nair-Smith's observations and reactions, but it is accurate in describing the actions of its author. Otherwise, her account accords with the probabilities and, in particular, the characteristics of the chairlift.

1. For the sake of completeness, I note two further matters. First, in one of his reports Mr Gow stated:

"From the point at which the chair rounded the bullwheel to the load point was 1.6 metres, a distance travelled by the chair in 0.7 seconds. ... I do not believe that it would have been possible for the operator to have performed the following in less than ¾ second:

a) dived backwards

b) regained footing

c) raised the restraining device

d) pulled the chair sideways ...

e) re-positioned himself behind the moving chair

f) pulled/bumped the chair backwards

g) raised the moving chair to some height

h) released the moving chair to impact with the plaintiff as described."

1. As I have stated, the speed of the chair was 2.3 metres per second. It would cover 100 metres in just over 43 seconds. There is nothing improbable in a fit adult overtaking the chair if rushing from behind. Otherwise no aspect of my findings involves the proposition that Mr Lofberg needed to regain his footing. Mr Lofberg's actions in pulling the chair back and sideways were part of one motion. It is not clear that the reference to "impact with the plaintiff as described" was to the impact following the chair swinging from the right back to the left. In the end result, Mr Gow's opinion is addressing a different scenario to the one that I have found took place.

1. Second, Perisher sought to rely on some notes from the doctors that Dr Nair-Smith consulted which referred to the circumstances of the accident.

1. On 1 August 2003 Dr Nair-Smith consulted Dr Garvan. Dr Garvan's handwritten notes include the following entries: "[indistinct but possibly turned] to look for chair and then - safety bar down - [all or we] jumped - no other [indistinct] at [indistinct] to lift bar up ... chair hit her on back - hit between legs". Dr Nair-Smith denied that that she told Dr Garvan that "we jumped". I accept that denial. I have no means of establishing whether Dr Garvan was seeking to take a verbatim account of what occurred, or whether any part of these notes includes his own assessment of what must or could have happened.

1. Perisher made a submission concerning the failure of Dr Nair-Smith to call Dr Garvan in part based on these notes and in part based upon the medical evidence it was said he could give as to Dr Nair-Smith's pre-accident condition. It contended that the failure to call him invites a "Jones v Dunkel inference" (referring to Jones v Dunkel [1959] HCA 8; 101 CLR 298). The particular inference was not specified. As the discussion in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 86 ALJR 522 at [167] to [170] and [250] to [270] illustrates, the invocation of Jones v Dunkel requires some precision as to what inference it is submitted should or should not be drawn from the failure of a party to call a particular witness. If it is meant to support no more than an inference that his evidence would not have assisted Dr Nair-Smith in proving the accident caused the physical injury claimed by her, then drawing that inference is not the same as concluding that his evidence would be adverse to her case. The inference would rise no higher than he cannot remember whether or not the notes record verbatim what she told him (see Hellicar at [168]). In the face of her denials such an inference would take the matter nowhere.

1. Otherwise at most in this context Jones v Dunkel only operates to enable an inference grounded in the evidence to "be more confidently drawn" where a witness that a party could be expected to call to contradict that inference is not called (Jones v Dunkel at 308) and possibly to make inferences sought to be drawn in favour of party who does not call a relevant witness less likely to be drawn (see Hellicar at [262] to [267] per Heydon J). These aspects of Jones v Dunkel and its progeny do not assist Perisher. In relation to the latter Dr Nair-Smith does not ask the Court to draw any inference in her favour as to what she told Dr Garvan. In relation to the former, based on his notes, Perisher presumably asks the Court to infer that Dr Nair-Smith told him that "we jumped". However Dr Nair-Smith has called direct evidence on that topic, namely from herself. She was a person "able to put the true complexion on the facts" relating to the subject discussed with Dr Garvan (Jones v Dunkel id). Having denied that she told Dr Garvan that "we jumped" she was under no obligation to call Dr Garvan to confirm what she told him, the breach of which would entitle the Court draw some form of inference as to the meaning of his notes.

1. For the sake of completeness I note that Perisher also referred to some notes taken by a physiotherapist, Ms Harkness, of a consultation with Dr Nair-Smith in October 2008. Ms Harkness' notes included an entry: "skiing accident 3-4 yrs ago, turned around to talk to friend behind her while sitting on chairlift ...". In cross examination Dr Nair-Smith denied telling Ms Harkness that. These entries do not take the matter anywhere. The configuration of the chairlift is not such that Dr Nair-Smith could have "turned around" to speak to her companions.

(2) The cause of action in contract and the purported exclusion of liability

1. Before addressing any issue of negligence, it is necessary to address and partially resolve various issues that arise concerning the interrelationship between certain provisions of the TPA and the CLA, and their application to any causes of action in contract and tort that Dr Nair-Smith may have arising out of the accident on 18 July 2003.

1. Part 1A of the CLA addresses the liability of a party for "Negligence". With the exception of s 5N, it came into force on 6 December 2002 (Civil Liability Amendment (Personal Responsibility) Act 2002, s 2; New South Wales Government Gazette, No 249, 6 December 2002, at 10529). Section 5N came into effect on 10 January 2003 (New South Wales Government Gazette, No 13, 10 January 2003, at 95). The provisions of Part 1A are operative in respect of all claims resulting from negligence arising before or after the date of their commencement, but do not apply to proceedings commenced in court before the relevant date (CLA, Sch 1, Item 5(1)) or civil liability excluded from its operation by s 3B (s 5A). A number of its provisions are addressed below.

1. The concept of "Negligence" is defined in s 5 as meaning a "failure to exercise reasonable care and skill". As such, it prima facie extends to allegations of breach of a term of a contract requiring the exercise of reasonable care and skill.

1. Part 2 of the CLA is entitled "Personal injury damages" and came into force on 20 March 2002 (CLA, s 2). It imposes various restraints and limitations on the damages recoverable by injured persons. On 6 December 2002 further amendments to Part 2 came into effect. Part 2 is operative in respect of all awards of personal injury damages that relate to an injury received, or death resulting from an injury received, whether before or after 20 March 2002 (CLA, Sch 1, Item (1)) subject to two presently immaterial qualifications.

1. Sub-section 3A(2) of the CLA expressly provides that the Act (other than Part 2) does not prevent parties from making express provision for their rights, obligations and liabilities under contract. Further, s 5N which is found within Part 1 provides:

Waiver of contractual duty of care for recreational activities

(1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.

(3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity.

(5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement.

(6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety."

(emphasis in original)

1. The phrase "recreational activity" referred to in s 5N(4) is defined in s 5K as including:

"(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."

1. Dr Nair-Smith's statement of claim pleaded a cause of action in negligence against Perisher and a cause of action in contract. The action in contract concerns the contract she entered into with Perisher when purchasing a lift ticket on 17 July 2003 for $80.00. The statement of claim pleaded that it was an express term of the contract that services supplied, such as uphill transportation, would be undertaken with due care and skill. As I understand it, this assertion was based on a statement made on a notice board above the ticket office windows at Perisher resort which is depicted in a photograph of signage tendered by Perisher. The statement was immediately qualified by a series of statements which robbed it of content and arguably purported to exclude liability on the part of Perisher. Other than the tender of the photo of the sign, there was no evidence (or submissions) from either party directed towards establishing that the sign had contractual effect. I am not satisfied that any part of that sign had such an effect.

1. However Dr Nair-Smith otherwise relied on a term implied by former s 74(1) of the TPA which as at July 2003 provided, inter alia:

"In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill ..."

1. It was not in issue that Perisher was a corporation, that it contracted to provide services, and that it did so in the course of its business. I address the services that were contracted to be provided below (at [101]). Dr Nair-Smith was clearly a "consumer" in that she acquired the "services" for less than the "prescribed amount" of $40,000 (former s 4B of the TPA). However Perisher contended that it excluded the operation of this term and also any liability under Part 1A of the CLA by reason of the written terms on the reverse side of the ticket and the operation of s 5N(1) of the CLA.

1. The front part of the ticket specified that it was "Adult one day", "Valid for Operating Lifts" and "Valid until 18 July 2003, without Skitube, Lift only". The terms on the reverse were in extremely small font, being around "Arial 5" (or just over 1mm in height). When magnified, they relevantly stated (emphasis added):

"Extract of terms and conditions: ALL SIGNS MUST BE READ. By purchasing or using this ticket, YOU ACKNOWLEDGE THAT ALPINE ACTIVITIES (INCLUDING SKIING & SNOWBOARDING) ARE RISKY AND DANGEROUS AND THAT YOU WILL UNDERTAKE SUCH ACITIVITES AT YOUR OWN RISK.

You also acknowledge that you will observe the Alpine Responsibility Code (copy available on request) and conduct yourself in a safe and controlled manner at all times. You must follow directions given by us, our employees and agents. We make no express warranties in relation to the service we provide. All warranties, representations or conditions relating to the services we provide (whether express or implied and whether arising in contract at common law or under statue [sic]) are to the maximum extent permitted by law expressly excluded. You acknowledge that our liability under any statutory right or any condition or warranty implied by the Trade Practices Act, 1974 which cannot be excluded is limited at our option to the resupply of the services or the payment of the cost of having the services supplied again. You acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including loss of opportunities, exemplary or punitive damages) whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents and you indemnify us against all claims.

This ticket

1/ Is valid for the day or period of issue only as displayed on this ticket.

2/ Remains our property at all times and must not be resold, transferred or altered in any way and a breach of this condition may result in confiscation of your ticket and may invoke police action;

3/ Must be permanently attached to clothing on upper torso as displayed on the ticket backing so as to be visible at all times; invalid if ticket wire is cut.

4/ Will not be refunded or replaced if lost or stolen or if any facilities are not operating for any reason or if any portion of ticket is unused.

5/ Does not entitle you to use the "tom thumb" j-bar unless directed by one of our authorised employees;

6/ entitle you to unlimited use of the Skitube between Perisher and Blue Cow for the day or period of issue only;

7/ does not entitle you to use of the resort facilities for any commercial purpose - except with our prior written consent; and

8/ does not entitle you to provide or receive skis or snowboard instruction except where provided by us, our employees or our agents. If You Breach Any Of The Conditions You Will Lose All Privileges Associated With This Ticket.

SKIING/SNOWBOARDING IS A HAZARDOUS ACTIVITY AND THE HOLDER SKIS/RIDES AT HIS/HER OWN RISK.

skiers/snowboarders must observe the Alpine Responsibility Code and ski/ride in a safe manner at all times. Failure to do so may result in forfeiture of skiing/riding privileges.

..."

1. Perisher did not contend that the terms of a particular sign or display on the ticket were incorporated. Otherwise, neither party addressed whether this writing had contractual effect but instead they appeared to assume that it did. I will proceed on the same assumption, but without finding that is the case. It is not obvious that the writing has contractual force. The lift ticket that was tendered was not signed by Dr Nair-Smith and I was not asked to make a finding that she was or ought to have been aware of the above terms (see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [54] to [55]).

1. Whether or not the term implied by s 74(1) could be excluded by agreement was governed by former ss 68, 68A and 68B. In addressing these provisions, the submissions filed on behalf of Dr Nair-Smith referred to a roughly equivalent provision now found in s 64 of the Australian Consumer Law (and presumably reliance is also placed on s 64A of the Australian Consumer Law, and s 139 of the Competition and Consumer Act 2010 (Cth)). However, the correct provisions are those that were in force on the day of Dr Nair-Smith's accident. The contract was formed on the day before the accident, any breach occurred on the day of the accident and any loss or damage was occasioned on that day.

1. Allowing for that modification, Dr Nair-Smith relied on s 68 to contend that any contractual term, including those found within the lift ticket, purporting to exclude either the implication of the term provided for by s 74 or limit the remedies for its breach was void. As at July 2003 s 68 of the TPA provided:

"Application of provisions not to be excluded or modified

(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:

(a) the application of all or any of the provisions of this Division;

(b) the exercise of a right conferred by such a provision;

(c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or

(d) the application of section 75A;

is void.

(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section."

1. Subsection 68(1) operates upon particular "terms" of a contract. I address the potentially relevant terms below at [109] to [116]. At present it should be noted that the effect of this provision is to render the entire term "void" and not just void "to the extent" that it purports to have the effect referred to in any of paragraphs (a) to (d) of s 68(1) (see Taperell, Vermeesch and Harland, Trade Practices and Consumer Protection, 3rd edition, Butterworths at [1745]). Thus, for example, if the one term sought to exclude liability for negligence and breach of a condition or warranty implied by the TPA then the effect of s 68 is that it would not be effective to do either.

1. In its submissions Perisher referred to s 4L of the TPA which provided:

"Severability

If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87, 87AAA or 87A, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable."

1. The proper operation of this provision was explained by the High Court in SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; 225 CLR 516 ("SST Consulting") at [40]:

"Much more often than not the definition of the extent of severance will be revealed by the way in which the condition for engagement of s 4L operates. That condition requires the identification of a provision whose inclusion in the contract brings about the result that making the contract contravened the Act. It is that provision which is unenforceable and void and it is that provision which is to be severed from the other provisions of the contract. Subject to any order made under s 87 or s 87A, nothing in the Act affects the validity or enforceability of those other provisions." (emphasis in original)

1. Reliance on s 4L will not avoid the consequence identified in [93]. The inclusion in a contract of a particular term which falls foul of s 68 does not of itself have the effect that the making of the contract contravenes the TPA. Even if that were so, s 4L merely enables the excision of the relevant term with the assistance of the metaphorical "blue pencil" (SST Consulting at [52]). It does not authorise the rewriting of a particular term.

1. In any event, on its face s 68(1) has the effect contended for by Dr Nair-Smith. Perisher did not argue otherwise. However it sought to avoid its operation by relying on either or both of ss 68A and 68B as in force in July 2003. First s 68A provided:

"Limitation of liability for breach of certain conditions or warranties

(1) Subject to this section, a term of a contract for the supply by a corporation of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 68 by reason only that the term limits the liability of the corporation for a breach of a condition or warranty (other than a condition or warranty implied by section 69) to:

(a) in the case of goods, any one or more of the following:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;

(iv) the payment of the cost of having the goods repaired; or

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

(2) Subsection (1) does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the corporation to rely on that term of the contract.

(3) In determining for the purposes of subsection (2) whether or not reliance on a term of a contract is fair or reasonable, a court shall have regard to all the circumstances of the case and in particular to the following matters:

(a) ... ;

(b) ... ;

(c) ... ; and

(d) ... " (emphasis added.)

1. Dr Nair-Smith did not rely on s 68A(2), but did contend that the services supplied were of "a kind ordinarily acquired for personal, domestic or household use or consumption" so as to negate any attempt to avoid the operation of s 68 by the use of s 68A. I agree. I address the nature of the services that were contracted to be provided below (at [101]). There was no definition of the phrase "personal, domestic or household use or consumption" in the TPA but I cannot see any reason to doubt that the services provided pursuant to a ticket issued by Perisher, however defined, were ordinarily acquired for "personal ... consumption". I find that in this case s 68A was not operative to save any term of the contract from the application of s 68(1).

1. Second, as at July 2003 section 68B provided:

"Limitation of liability in relation to supply of recreational services

(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:

(a) the application of section 74 to the supply of the recreational services under the contract; or

(b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or

(c) any liability of the corporation for a breach of a warranty implied by section 74 in relation to the supply of the recreational services under the contract;

so long as:

(d) the exclusion, restriction or modification is limited to liability for death or personal injury; and

(e) the contract was entered into after the commencement of this section.

(2) In this section:

disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.

injury means any physical or mental injury.

personal injury means:

(a) an injury of an individual (including the aggravation, acceleration or recurrence of an injury of the individual); or

(b) the contraction, aggravation, acceleration, or recurrence of a disease of an individual; or

1. Third, the orthopaedic experts, Dr Maxwell and Dr Giblin, were dismissive of Dr Saunders' diagnosis of ligament damage to the sacroiliac joints. Dr Maxwell described the strength of the sacroiliac joint, including its ligaments. He pointed out that, unlike cruciate ligaments in the knee, there is a good blood supply to the sacroiliac ligaments so that any damage to them has good healing potential. Dr Giblin agreed. They and Associate Professor Jones were also dismissive of any assistance being derived from SPECT CT scans in determining instability in the sacroiliac joints. Both Dr Maxwell and Dr Giblin were also critical of the use of prolotherapy on the sacroiliac joints, considering it wholly untested and unverified. I found their evidence on this point persuasive. I do not accept Dr Saunders' diagnosis, nor do I accept that prolotherapy is an established and appropriate treatment for Dr Nair-Smith.

1. Fourth, as noted above, Perisher made a submission about the failure to call Dr Garvan and invited the Court to draw a "Jones v Dunkel inference". In this context they contended that the failure to call Dr Garvan has the result that the Court should more readily accept the opinions of Associate Professor Jones and Drs Stening and Maxwell to the effect that Dr Nair-Smith's post-accident condition was the product of the degenerative process affecting her sacroiliac joints and other structures in her low back. I do not accept that Jones v Dunkel operates in that manner in relation to expert evidence. Whether or not I accept a particular expert opinion turns upon, inter alia, the persuasiveness of the reasons provided and an assessment of the opinion against the known facts. At this point of the analysis I am deciding between the opinions of competing experts. I cannot see how a determination of whether or not I accept either set of expert opinions could be assisted by drawing an inference that a different expert who has not been called would not have assisted one of the parties, bearing in mind that I could not draw the inference that his opinion would have been adverse to that party (see [77] to [78]).

1. Once I exclude the diagnosis of Dr Saunders and have regard to my misgivings about aspects of Dr Maxwell's evidence I am left with the competing diagnoses of Drs Giblin and Stening concerning the area of the lumbar spine. Dr Giblin identified soft tissue injury, whereas Dr Stening identified the ongoing effect of degenerative changes at the lumbosacral facet joints. Consistent with what I have stated, the difficulty I have with Dr Stening's diagnosis is that it does not account for the sudden exacerbation of Dr Nair-Smith's pain and ongoing restrictions from the time of the accident in July 2003. That said, his opinion is consistent with the more recent deterioration in her condition. There was criticism made of the reports of Dr Giblin in terms of his history being inadequate. However, there was no attempt at cross examination to tackle the opinion expressed based upon those alleged deficiencies. In large part the history he recorded is consistent with what I have found.

1. In the end result, I am satisfied that Dr Nair-Smith suffered a significant soft tissue injury to her lumbar spine as a result of the accident as stated by Dr Giblin. Over time she has developed a pain disorder as referred to by Drs Clarke and McClure. The effect of the soft tissue injury was to aggravate a pre-existing level of discomfort in the lower lumbo-sacral region. Her further deterioration over the last few years is a result of the combination of the effect of the accident and degenerative changes in the lumbosacral region, however the accident remains an operative cause of that deterioration.

Non-Economic Loss - CLA

1. Section 16 of the CLA requires that I make an assessment of the severity of her non-economic loss by reference to "a most extreme case" (ss 16(1) and (3)). I have already made findings as to the position of Dr Nair-Smith prior to the accident (at [215] to [218]), her level of functioning and enjoyment of life after the accident (at [266] to [268], [277] to [279] and [283]) and the contribution of the accident to that difference (at [311]). In addition, the severe pain and trauma she suffered at the time of the accident and in the weeks that followed need to be borne in mind. Having regard to those findings I assess the severity of her non-economic loss as 25% of a most extreme case. This corresponds to an award of $34,775.00, which is equal to 6.5% of the maximum amount of damages that may be awarded (i.e. $535,000.00) (Civil Liability (Non-economic Loss) Amendment Order 2012).

Non-economic Loss - General Law

1. The parties will have the opportunity to make submissions as to the appropriate figure for general damages in the event that I find that the amounts recoverable for Dr Nair-Smith's breach of contract claim are not restricted by Part 2 of the CLA.

Economic Loss - General

1. As indicated above, both parties served reports from expert accountants attempting to identify the economic loss, if any, occasioned to Dr Nair-Smith as a result of the accident. It is appropriate that I address a number of matters arising out of their reports before first considering what amount, if any, Dr Nair-Smith can recover pursuant to the CLA for economic loss in respect of her injuries.

1. I have already found that Dr Nair-Smith's hours of working were reduced as a result of the injuries suffered in the accident. In the ordinary course, one would expect that that would affect her earning capacity, given her occupation as a doctor which is primarily directed to the earning of fees.

1. Perisher correctly submitted that damages can only be awarded for loss of earning capacity to the extent that the capacity "is or may be productive of financial loss" (Graham v Baker [1961] HCA 48; 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ). It further submitted that while the joint report of the experts to which I will refer recorded their agreement and disagreement on various matters of detail both experts agreed that "in the absence of the Practice records it is not available to them to assess over the nine years post-accident the hours worked and lost, the patient consultation fee opportunity lost, income streams through the Practice lost; and indeed whether [Dr Nair-Smith's] chance to exploit her income earning opportunity at the Practice productive of financial loss occurred at all" (emphasis added). Nothing in either of the joint reports of Mr Katehos and Mr Silvia records any agreement to the effect contended for by Perisher. Their first joint report notes the limitations on the material that was available to them, which I have referred to above at [262], but that absence does not warrant some peremptory rejection of Dr Nair-Smith's claim to have suffered economic loss.

1. Nevertheless, consistent with the criticisms noted in the judgment of Fullerton J in Nair-Smith v Perisher-Blue [2011] NSWSC 878, nowhere in any of Dr Nair-Smith's affidavits is there any explanation of the legal and accounting structure of her medical practice. Instead, buried within Mr Katehos' and Mr Silvia's reports are items of information from which one can describe it.

1. At some point the company, Ghita Nair-Smith Pty Ltd ("GNS"), was incorporated. It appears to have received all fee income generated by Dr Nair-Smith, as well as any other income that was related to her practice as a doctor. It employed Dr Nair-Smith and has paid her wages and superannuation as well as other practice expenses. From time to time GNS has also employed her mother, Ulita, and received fees generated by her. I have already referred to the fee income sourced from Medicare that was analysed by Mr Silvia. Mr Katehos' report dated 28 October 2011 refers to other sources of fee income, namely private billings, WorkCover, "third party work" (being presumably work on behalf of insurers), and fees generated by such activities as Dr Nair-Smith's work during the intervention.

1. According to the second joint report prepared by Mr Katehos and Mr Silvia, in November 2003 the practice, comprising Dr Nair-Smith and other doctors, moved to premises at 455 President Avenue, Kirrawee. These premises were owned by Drs Nair-Smith, Kim and Patel. In 2009 ownership of the property transferred to a company, 455 President Pty Ltd, whose shareholders comprised Dr Nair-Smith and four other doctors. As I indicate below, from time to time rent had been paid in respect of that property by GNS. It also appears that the medical practice utilised a management company or trust called "Kirrawee Management Services" which received management fees from members of the practice or their companies. From time to time it has distributed income to the doctors individually.

1. It is convenient to address the methodology for determining economic loss adopted by Mr Silvia first. In his report he identified it as follows:

"Economic Loss is determined by assessing [Dr Nair-Smith's] Earnings (including that of [GNS]) both prior and subsequent to the Accident. Summarily, Economic Loss, in my view, is determined in circumstances where it can be shown that, subsequent to the Accident, there was a reduction in [Dr Nair-Smitih's] Earnings as compared to that prior to the Accident as appropriately adjusted for 'Medicare CPI' and/or Australian Bureau of Statistics ('ABS') CPI increases ..." (emphasis in original)

1. Consistent with this methodology, Mr Silvia adopted Dr Nair-Smith's earnings in the financial year 2003 as the base year's earnings, and adjusted it by the various indexes he nominated for each year subsequent to the accident to 2010. Having done this, he compared it to the income she in fact generated, a matter to which I will return. He found that the latter was greater than the former and concluded that Dr Nair-Smith had not suffered any loss.

1. As formulated, Mr Silvia's description of the proper approach to the determination of economic loss is incorrect. As a matter of principle the assessment of loss does not involve a comparison of Dr Nair-Smith's earnings prior to the accident with those after the accident. Instead, and leaving aside any distinction between the concept of earnings and earning capacity, the relevant comparison is between the hypothetical earnings Dr Nair-Smith would have received in subsequent years but for the accident and those that she in fact received in the subsequent years. The approach adopted by Mr Silvia would only be correct if his method of adjusting "base year" earnings for CPI produced an acceptable proxy for what Dr Nair-Smith would have received but for the accident having occurred. However, Mr Silvia's report itself reveals that the method of adjusting Dr Nair-Smith's income for the base year earnings is not a suitable proxy for assessing the income that she would have earned.

1. In his report, Mr Silvia compares in considerable detail the type of Medicare consultations performed by Dr Nair-Smith before and after the accident. He identifies one supervening event, being the introduction in February 2004 of Medicare Item 10990. This was a bulk billing incentive item for Commonwealth concession card holders and children aged under sixteen years. Another event was the change in the premises from which the medical practice was conducted in November 2003, which may have affected the composition of the patient base.

1. In any event, based upon his analysis of the Medicare data, Mr Silvia noted that Dr Nair-Smith's consultations prior to the accident were mainly Medicare Item 23, which was a standard fifteen minute consultation. He observed that from calendar years 2003 to 2008 the number of short consultations conducted decreased, and the number of comparatively "long" and "complex" consultations, being Medicare Items 36 and 44, increased considerably. He concluded:

"The change in the 'mix' of Medicare Item consultations over the years has positively improved [Dr Nair-Smith's] Gross and Net Earnings (and [Dr Nair-Smith's] Personal Exertion Income) notwithstanding reduced patient numbers."

1. There is nothing to suggest that this change in patient mix was related to Dr Nair-Smith's accident. Dr Findlay stated that more complex appointments were usually referred to Dr Nair-Smith but there is nothing to suggest that this practice arose out of or was related to her medical condition. The change in the Medicare billing arrangements was certainly unrelated. The circumstance that Dr Nair-Smith has, since the time of the accident, been able to favourably alter her mix of patients and types of consultations is a matter that tells decisively against using her 2003 income, increased by some index, as a proxy for what her income would have been had the accident not occurred. I reject Mr Silvia's proposed basis for assessing economic loss.

1. In his reports Mr Katehos identified two bases or "scenarios" for determining the economic loss occasioned to Dr Nair-Smith by her accident, as well as a component entitled "the reduced efficiency of Ulita compared to [Dr Nair-Smith]".

1. The first scenario was one that determined the income Dr Nair-Smith would have earned but for the accident based upon the actual fees earned by "her business" in the time since the accident, and then adding those fees to the income from the working days he assumed that Dr Nair-Smith had "lost" as a result of the accident.

1. The second scenario determined the amount that Dr Nair-Smith would have earned but for the accident by assuming it would have been equivalent to that achieved by another doctor within the practice, Dr Patel, after allowing for Dr Patel's reduction in working days from five to four days per week. I do not accept that Dr Patel can be used as a useful comparator in assessing Dr Nair-Smith's economic loss. I have set out above (at [263]) Mr Silvia's analysis of the Medicare records so far as Dr Nair-Smith is concerned. Mr Silvia obtained the same data for Dr Patel. Two matters should be noted about the figures for Dr Patel when compared with those for Dr Nair-Smith. First, at all relevant times Dr Patel's patient numbers were significantly in excess of those of Dr Nair-Smith. Second, consistent with what I have stated above, over time there has been a dramatic shift in the patient mix for Dr Nair-Smith compared with that of Dr Patel. Thus, in the year 2000 the average charge for Dr Nair-Smith per Medicare patient was $23.87, and for Dr Patel was $29.62. In the calendar year 2009, the average charge per Medicare patient for Dr Nair-Smith was $64.88 compared with $53.88 for Dr Patel.

1. There remains the first scenario adopted by Mr Katehos. It strikes me as a methodology that most closely conforms with principle. Mr Katehos and Mr Silvia's first joint report records a number of objections that Mr Silvia had to the adoption of that scenario. Some of them involve his failure to apply the appropriate caps in the CLA, a matter which I address below. Others concern the absence of records to verify the hours that Dr Nair-Smith said she did not work, a matter which I have already addressed. The remaining criticism attacks the assumption implicit in Mr Katehos' approach that, on the days she would have worked but for the accident, Dr Nair-Smith would have been able to generate the same income and type of work as she did on the days she worked after the accident. However I see no reason why that assumption is not a reasonable one to adopt. Dr Findlay indicated that for the patients with more complex problems it was "hard to get an appointment to see [Dr Nair-Smith]", which was suggestive of there being sufficient demand for her services.

1. Accordingly, and subject to what follows, I accept the methodology put forward by Mr Katehos in his first scenario. However, even before one considers the application of the provisions of the CLA, his analysis will need to be revisited to address the following.

1. First, his analysis will have to be recalibrated to take into account the finding that I have made in [268] above, which is at variance with the assumption that he made, namely that from March 2006 Dr Nair-Smith was working one further day less. I have identified that date as being 1 December 2008.

1. Second, Mr Katehos' methodology for determining the hypothetical past earnings for Dr Nair-Smith involved adding back the remuneration paid to Dr Nair-Smith's mother, Ulita, as a result of her working an additional half day from March 2006. That figure will need to be recalibrated in accordance with my finding that that only occurred from 1 December 2008. Mr Katehos' figures also involve an add back of remuneration paid to Dr Nair-Smith's daughter, Nichla, from some time in 2004, apparently on the basis that she performed some tasks for her mother. I do not accept the evidentiary foundation for that contention, and it should not form part of any revised calculation.

1. Third, there was a debate between Mr Katehos and Mr Silvia about whether Mr Silvia had ignored other sources of income received by Dr Nair-Smith for the purposes of assessing her economic loss, such as the rent she received in respect of the premises. For the reasons given at [340], this debate need only be addressed in the context of considering s 12 of the CLA. In the event that it is found that Dr Nair-Smith's economic loss is to be determined unconstrained by the CLA, then the manner in which other items of income should or should not be characterised does not matter. Prima facie it is only the calculation of the lost fee income from the days she did not work that is required. Accordingly, I will consider this aspect of the debate between the accounting experts under the next heading.

Economic Loss - Civil Liability Act 2002

1. Sections 12 and 13 of the CLA provide:

"12 Damages for past or future economic loss - maximum for loss of earnings etc

(1) This section applies to an award of damages:

(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

(b) for future economic loss due to the deprivation or impairment of earning capacity, or

(c) for the loss of expectation of financial support.

(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.

(3) For the purposes of this section, the amount of average weekly earnings at the date of an award is:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed."

13 Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

1. A number of issues were raised concerning these provisions. First, on behalf of Dr Nair-Smith a number of lengthy submissions were made to the effect that ss 12(2) and 12(3) do not operate to place an overall cap on the amount of damages that may be awarded. Instead it was submitted that they only impose a limit on the first step in determining any award for economic loss, namely the determination of what the injured claimant's past or future earnings (or earning capacity) would have been but for the accident or injury. It was submitted that, in undertaking that step, the Court should disregard any difference between the number determined and the figure denominated in s 12(2). It was contended that the next step is to determine what the actual earnings have been and will be, and the third step is to calculate the difference. It was submitted that neither the second nor third steps are constrained by s 12. On this issue, Counsel for Dr Nair-Smith was pushing an open door. Perisher did not submit to the contrary. The proposition it contended for was, in my view, accepted as a given in Fkiaras v Fkiaras [2010] NSWCA 116; 77 NSWLR 468, in particular at [43] per Tobias JA.

1. Second, it was submitted on behalf of Dr Nair-Smith that there was no necessary impediment presented by s 13 to the awarding of a lump sum for economic loss by way of a "buffer" or "cushion". Again, provided, inter alia, that the Court makes findings in conformity with s 13(1), there is no reason in principle why a buffer cannot be awarded (see Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84] per McColl JA, with whom Mason P and Beazley JA agreed; and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [3] per McColl JA, [21] to [36] per Basten JA and [67] per Macfarlan JA).

1. However, the awarding of any such "buffer" or "cushion" must be undertaken in conformity with s 12. In particular, the reasoning that leads to the award of the cushion must not utilise a step that contemplates that, but for the accident or injury, the injured claimant's gross weekly earnings would have exceeded the amount identified in s 12(2). Instead it must be determined in a manner that conforms with the requirement of disregarding any amount that the claimant's earnings would but for the injury or accident have exceeded.

1. Against that background I will deal with past economic loss first.

1. As at the date of this judgment the amount specified in s 12(3)(a) is $1,081.20. Thus the amount relevant to s 12(2) is $3,243.60 per week, which translates to an annual income of $169,130.57 (52.14 weeks). I have already found that Mr Katehos' first scenario is the appropriate methodology for determining Dr Nair-Smith's earnings but for the accident, although I have referred to matters that will need to be revisited in determining her income but for the accident (at [331] to [332]).

1. For the purposes of applying s 12 there is need to identify whether some aspect of her income forms part of her "earnings" (ss 12(1)(a) and 12(2)). Thus, take an example where the threshold in s 12(2) is $170,000.00 and prior to an accident an injured claimant receives wages of $140,000.00 and "rent" from premises they own of $40,000.00, and after the accident the claimant receives wages of $100,000.00 and the same level of "rent", namely $40,000.00. Unconstrained by the CLA there is no reason to classify the rent. The injured claimant's loss is $40,000.00 per annum. However under the CLA the position differs. If the "rent" in this example is classified as "earnings" for the purposes of s 12(1)(a) and (2), then by the operation of s 12(2) the claimant's gross (annual) earnings but for the accident or injury is to be treated as $170,000.00 not $180,000 and they will only be found to have suffered a loss of $30,000.00 per annum not $40,000.00. The answer to this example is that if the item for rent was purely a rental return derived from the passive ownership of property, then it is not to be treated as "earnings" because that "is a reference to income earned by the exercise of the injured person's earning capacity" (Fkiaras at [46] per Tobias JA). If so, the amount will not enter into either the first stage of the calculation of loss, namely determining the earnings that would have been derived but for the accident. Nor will it be included in the second stage, namely determining what amount has been derived from their residual earning capacity after the accident (Fkiaras at [43] per Tobias JA).

1. In this case there was a debate between Mr Katehos and Mr Silvia about the characterisation of certain income that Dr Nair-Smith had received since the accident. The resolution of this debate determines whether that income should be brought to account in determining past economic loss having regard to s 12(2) of the CLA.

1. The first concerned amounts that Dr Nair-Smith personally received by way of rent for the premises for the medical practice which had been purchased by her and the other doctors prior to the accident. Prima facie, for the reasons already given, such rent should not be considered a component of post-accident hypothetical or actual earnings. However, in the second joint report Mr Silvia analysed the rent payable by GNS since 2004 to date and compared it with that payable by the other doctors. The analysis reveals that, leaving aside Dr Osborne, GNS paid substantially greater rent on the premises than Drs Patel, Kim or Findlay or their service companies. Further, Dr Nair-Smith's personal tax returns reveal that she received payments of rent in circumstances where Drs Patel and Kim did not. Thus, in the financial year ended 30 June 2007, GNS has recorded in its accounts an expense for rent of $31,700.00, and Dr Nair-Smith has recorded in her tax return rent received of $17,813.00. It may be that this represents the adoption of an advantageous tax arrangement for the payment of rent by her company and the receipt of rent by her as an individual, although this was not explored. In any event, in the absence of any attempt to explain these figures, I consider that Mr Silvia's approach of including rent received by Dr Nair-Smith as income referable to the exercise of her earning capacity in her practice as a doctor is appropriate. In substance it is only an adjustment downwards of the rental expense deducted from her gross earnings.

1. The other matter concerns distributions made by Kirrawee Management Services in the financial years ended 30 June 2005 ($11,546.00), 30 June 2006 ($7,814.00) and 30 June 2007 ($10,922.00). Although not clear, it appears that they involve the distribution of surplus amounts that have been paid out by way of management fees by each of the doctors or their companies participating in the practice. A summary of GNS's profit and loss statements reveals that for each of those years and the other years a significant amount of management fees was paid by GNS to an entity, presumably Kirrawee Management Services. However in the financial year ended 30 June 2010 GNS paid a significant amount of management fees ($42,775.00), but Dr Nair-Smith still suffered a loss of $31,942.00 by virtue of her participation in Kirrawee Management Services. This pattern of profits and losses on distribution of amounts leads me to conclude that amounts distributed by Kirrawee Management Services to Dr Nair-Smith should not be consolidated with Dr Nair-Smith's other earnings to reflect either her earnings but for the accident, or the true amount of earnings derived by Dr Nair-Smith from her earning capacity since the accident.

1. In summary, for the purpose of determining past economic loss under the CLA, it will first be necessary for Mr Katehos to recalculate Dr Nair-Smith's hypothetical earnings but for the accident taking into account the observations and findings at [266] to [268], [331] to [332] and [342]. I suspect that this will lead to a conclusion that, for most years other than possibly the financial year ended 30 June 2004, Dr Nair-Smith's earnings but for the accident would have exceeded the amount referred to in s 12(2) of the CLA. In any event, the period she was off full time work will need to be addressed separately. It will also be necessary for Mr Katehos to recalculate Dr Nair-Smith's actual earnings since the accident taking into account the finding at [342]. It seems likely, but I do not know, that that is also likely to yield figures for each of the relevant years (other than possibly the year ended 30 June 2004) that are close to or in excess of the figure referred to in s 12(2), with the likely result that only a modest sum for past economic loss is to be awarded.

1. In relation to future economic loss, it was submitted on behalf of Dr Nair-Smith that it is appropriate to award a buffer in respect of future economic loss for the following reasons:

"It may be accepted that Dr Nair-Smith presently earns above the 'cap' imposed by section 12 of the Act. It may also be anticipated that she will continue to do so for the foreseeable future. While it will be sought to make a case on her behalf that [her] injuries will ultimately prevent her from pursuing a practice as a medical practitioner, medical evidence on that point differs. There is the prospect that Dr Nair-Smith will find herself, from time to time, being unable to work, requiring perhaps increasing periods of time off work to recuperate. It must be remembered that s 12 is not concerned with average weekly earnings over a given period, but rather with 'gross weekly earnings'. In the event, therefore, that Dr Nair-Smith were required to have periods of weeks away from work from time to time, nothing in section 12 will prevent the court from awarding an amount to reflect the loss of earnings (due to a total impairment in her earning capacity during those periods) up to the capped amount. Equally, it is foreseeable that Dr Nair-Smith may, from time to time, earn some amount less than the cap in any given week."

1. The concession that Dr Nair-Smith "presently earns above the 'cap' imposed by section 12" appears to be well founded. For the financial year ended 30 June 2009 Dr Nair-Smith received wages and superannuation alone of $164,653.00 and before any adjustment of the kind just discussed. Leaving aside the balance of the submission, this concession and an acceptance that it is likely to be the case for the foreseeable future has the consequence that no amount for future economic loss can be awarded in conformity with the CLA. For the purposes of s 13(1) the "most likely" future circumstance but for the injury is that Dr Nair-Smith would have continued in her position as a doctor and earned an amount in excess of the cap provided for in s 12(2). The "most likely" course of events in view of the injury is also that Dr Nair-Smith will continue as a doctor and earn an amount in excess of the cap. Subject to what follows, a comparison of her modified hypothetical earnings with her most likely future actual earnings leads to the conclusion that she will not suffer any economic loss.

1. The difficulty with the balance of the submission extracted at [345] is that there is no evidence to suggest that Dr Nair-Smith will or even may ultimately be prevented from pursuing her practice as a medical practitioner as a result of the injuries she suffered during the accident. Moreover, there is no evidence to suggest that she will need to take periods of time off work due to any of the injuries she suffered in the accident, bearing in mind that she is currently only working three and a half days a week. It follows that, leaving aside compliance with s 13, the operation of s 12 of the CLA is such that no amount can be awarded for future economic loss.

Economic loss - General Law

1. It follows from what I have said above that the parties will have the opportunity to make submissions as to the appropriate amount(s) that should be awarded for economic loss in the event that I find that the determination of the damages payable for Dr Nair-Smith's breach of contract claim is not restricted by Part 2 of the CLA. As I have indicated, the debate about whether certain items for rent and the repatriation of management fees need to be brought to account appears to be irrelevant to that assessment.

Domestic Assistance - Past and Future - CLA

1. It follows from the findings that I have made that, as a result of the accident, 40 hours a week of gratuitous domestic assistance was provided for three weeks and seven hours a week thereafter was provided by Dr Nair-Smith's husband and family until at least 2009. No issue was taken that such assistance, if provided, constituted gratuitous attendant services for the purpose of s 15 of the CLA. Even though Dr Nair-Smith had a pre-existing condition, those services would not have been provided but for the injury, and the need for those services arose "solely" because of the injury to which the damages relate (s 15(2)(b); Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28] to [30] per Beazley JA with whom Hodgson and Tobias JJA agreed). I am satisfied that there was a reasonable need for those services (s 15(2)(a)). The threshold in s 15(3) has clearly been satisfied. However the need for the further hours of service that I have noted in [283] has not arisen "solely" by reason of the injury to the which the damages relate (cf s 15(2)(b)) and under the CLA at least is not recoverable. Going forward, I will allow the claim for seven hours assistance on a weekly basis. The parties will need to quantify the amounts recoverable.

Domestic Assistance - General Law

1. Again, the parties will have the opportunity to make submissions as to the appropriate figure under this head of damages in the event that I find that the amounts recoverable for Dr Nair-Smith's breach of contract claim are not restricted by Part 2 of the CLA.

Out of Pocket Expenses

1. Dr Nair-Smith claimed past out of pocket expenses totalling $22,594.00. Perisher provided a schedule addressing each invoice. It only accepted that $5,435.90 of the past out of pocket expenses was referable to the accident, and of this amount it disputed that $1,365.99 was reasonably incurred as it related to prolotherapy. Perisher did not identify whether it accepted any of the amounts claimed for the future. Thus, the only matter of principle that was identified that was relevant to out of pocket expenses concerned Dr Nair-Smith's receipt of prolotherapy treatment, which I have addressed at [308]. As for the balance of the matters claimed the schedules provided by the parties reveal that there has been insufficient dialogue between the legal representatives concerning these items.

1. I will not attempt to resolve the dispute over these invoices at this point. The parties will need to address a number of other outstanding matters (see [356]). They will have the opportunity to reconsider the claim for these expenses in light of my findings. If significant differences remain between them, I will consider referring them to a referee for resolution.

1. Dr Nair-Smith also claimed for future out of pocket expenses. This included six physiotherapy sessions per annum, twice annual general practitioner reviews and pain killers, all of which I consider reasonable. It also includes claims for one weekly session of hydrotherapy which I allow and twice annual specialist reviews. I only allow for one annual specialist review, given that the specialists are sceptical of any improvement in her condition. The remaining and biggest item claimed for future expenses is for prolotherapy. For the reasons already stated, I reject it.

1. Dr Nair-Smith also sought an amount for past and future expenses representing the $50.00 a week paid to Ms Effie Callas. It follows from the findings that I have made that I allow this amount.

1. Dr Nair-Smith's schedule of damages also includes a claim for equipment needs of $63,083.00. There were no submissions directed to this claim by either party. As best as I can ascertain this figure corresponds with a schedule of equipment and prices set out on page 33 of a report by an occupational therapist, Dr Susan Walters, dated 21 May 2009 that was tendered on behalf of Dr Nair-Smith. In the absence of either party addressing this topic, it is not appropriate for me to guess what the evidentiary and legal basis for this claim is. I will allow the parties a further brief opportunity to address on this aspect of Dr Nair-Smith's claim.

(6) Future Progress

1. It follows that there will be a verdict for Dr Nair-Smith against Perisher. However, as a number of matters relevant to quantum remain outstanding, I cannot enter any final orders at this stage. In particular, the quantification of the amount of the verdict must await a number of further steps. In particular:

(i) it will be necessary for Dr Nair-Smith to issue notices under s 78B of the Judiciary Act 1903 (Cth), notices in relation to the matter noted in [119] and the questions noted in [123];

(ii) the parties will need to make submissions in relation to the matter noted in [119] and the questions noted in [123];

(iii) the parties will have the opportunity to prepare revised calculations of economic loss having regard to my findings at [331] and [332];

(iv) the parties will have the opportunity to prepare revised calculations of past economic loss recoverable in the event the CLA applies (see [344]);

(v) the parties will have the opportunity to prepare revised calculations concerning the various heads of damages in the event that I find that Dr Nair-Smith's damages are not restricted by Part 2 of the CLA (see [313], [348], [350]);

(vi) the parties will need to confer in relation to the outstanding amounts claimed for past out of pocket expenses (see [352]);

(vii) the parties will have the opportunity to address the claim for equipment needs (see [355]); and

(viii) the parties will need to bring in figures reflecting the final calculations of damages on the basis that the CLA does apply and on the basis that it does not.

1. These matters will need to be addressed before questions of costs can be determined.

1. To enable the parties the opportunity to consider these matters, I will stand the proceedings over for further directions before me at 9.30am on 27 June 2013. I so order.

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Decision last updated: 07 June 2013