Nicol v Whiteoak (No 2) - [2011] NSWSC 1486

Supreme Court

New South Wales

Medium Neutral Citation: Nicol v Whiteoak & Anor (No 2) [2011] NSWSC 1486
Hearing dates: 28 and 29 November 2011
Decision date: 05 December 2011
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Judgment for the plaintiff against the first defendant in an amount to be reflected in Short Minutes of Order to be brought in.
(2) Judgment for the second defendant against the plaintiff.
(3) Judgment for the second defendant/ cross-defendant against the first defendant/ cross claimant on the Amended Fourth Cross-Claim

Catchwords: TORT - negligence - dangerous recreational activity - whether plaintiff engaged in dangerous recreational activity - contributory negligence- volenti non fit injuria
Legislation Cited: - Civil Liability Act 2002 (NSW) - s 5F, s 5G, s 5K, s 5L, s 50
- Convention on Limitation of Liability for Maritime Claims 1976
- Evidence Act 1995 (NSW) - s 67, s 177
- Limitation of Liability for Maritime Claims Act 1989 (Cth)
- Navigation (Collision) Regulations 1983 (NSW) -
- Uniform Civil Procedure Rules 2005 (NSW) - 4.10
Cases Cited: - Carey v Lake Macquarie City Council [2007] NSWCA 4
- Joslyn v Berryman (2003) 214 CLR 552
- Lormine Pty Ltd and Anor v Xuereb [2006] NSWCA 200
- Williams v GIO [1995] NSWCA 516
Texts Cited: - Negligence - volenti non fit injuria (1991) 65 ALJ 685
Category: Principal judgment
Parties: Linda Nicol (Plaintiff)
Scott Whiteoak as executor of Estate of Steven Whiteoak (First Defendant)
Mohamed Mogharbel (Second Defendant)
Representation: Counsel:
R.I. Goodridge (Plaintiff)
I.M. Newbrun (First Defendant)
In person (Second Defendant)
Solicitors:
Firths (Plaintiff)
Chris Lee Lawyer (First Defendant)
In person (Second Defendant)

File Number(s): 2009/297817

Judgment

The plaintiff claims damages for negligence against the late Steven Whiteoak ( the deceased ), whose executor is the first defendant in the proceedings, and against Mohamed Mogharbel, the second defendant.

The deceased was the driver of a 6-metre speed boat owned by his son, the first defendant, in which the plaintiff was a passenger. The second defendant was the driver of a half-cabin cruiser. The two boats collided at dusk, about six o'clock in the evening, on 16 September 2006 on the Georges River near Kangaroo Point. At the time of the collision the boat driven by the deceased was not illuminated and its speed was in the order of 80 kms/hour. The boat driven by the second defendant was illuminated and was travelling at about 35 kms/hour.

The deceased died as a result of injuries sustained in the collision. The plaintiff was airlifted by helicopter ambulance from the scene of the accident to St George Hospital. She was put in an induced coma and spent two months in hospital, including two weeks in intensive care.

The pleadings

The plaintiff's claim and the first defendant's cross-claim

The matters for determination are the plaintiff's claim against the first and second defendants and the first defendant's cross-claim against the second defendant.

The second defendant's cross claim against the first defendant

The second defendant appeared in person. I permitted Ms M Halwani to give him assistance at the bar table, but not to appear on his behalf. At the commencement of the hearing, when I invited the second defendant to respond to the plaintiff's opening if he wished, he referred to his own claim for damages for injuries which he suffered as a result of the collision on 16 September 2006. It was, at first, not clear to me whether he had filed a cross-claim. However, counsel for the plaintiff and the first defendant assisted me in constructing the following chronology.

On 22 March 2010, Davies J referred the second defendant to the pro bono scheme. By letter dated 23 September 2010, the Court advised the second defendant that a barrister had agreed to provide assistance. Ultimately, by orders made on 25 November 2010, the Duty Judge granted leave to the second defendant to file a cross-claim, such cross-claim to be filed by 8 December 2010. The second defendant filed a document headed "Fifth Cross-claim" on 11 November 2010. On 8 December 2010, he filed a further document, entitled "Sixth Cross-claim". In each of these documents, he sought damages against the first defendant. He did not, however, tender the filing fee for the cross-claim.

The matter came before Registrar Bradford on 14 December 2010. Ms Halwani sought leave to appear on behalf of the second defendant. The Registrar refused to accept the Fifth and the Sixth Cross-claims on the basis of Uniform Civil Procedure Rules 2005 (NSW) ( UCPR ) 4.10, since the filing fee had not been paid.

Accordingly there is no extant cross-claim brought on behalf of the second defendant.

The plaintiff's case on liability

The plaintiff suffered head injuries in the collision. She gave evidence that she has no recollection of the collision and little recollection of the ensuing weeks. Her last recollection was being in the boat with the deceased at La Perouse on the morning of the day of the collision. She said in evidence that she and the deceased had planned to go up the river and have a picnic lunch. Her next recollection was of a doctor, for whom she used to work, bringing her some yoghurt to St George Hospital.

Accordingly, the plaintiff could give little useful evidence about the events leading up to the collision and none about the collision itself or its aftermath. No inference can be drawn against her for not giving such evidence.

The plaintiff's evidence on liability comprises the following documentary material:

(1) the autopsy report for the coroner;

(2) the certificate of analysis of the deceased's blood and urine pursuant to s 177 of the Evidence Act 1995 (NSW);

(3) the statement of Sergeant Hewitt dated 6 December 2006; and

(4) the coroner's brief of evidence which comprises several witness statements.

The autopsy report for the coroner and the certificate of analysis establish that the deceased's blood had a concentration of alcohol of 0.114g/100ml and that his urine had a concentration of alcohol of 0.159g/100ml. Marijuana constituents were detected in the deceased's blood and urine, in the following concentrations: 0.008mg/L and 0.026mg/L.

The certificate of analysis records the above concentrations and contains the following passage:

"The following information may assist in interpreting the toxicology results:

Alcohol (Ethanol )

Increasing blood alcohol concentration (BAC) may gradually lead to slowed reflexes, impaired judgement, obscured observation, and diminished attention through to slurred speech, impaired muscular co-ordination to stupor, convulsions, coma and death. Though factors like body mass, sex and food consumed affect the BAC, on average BAC may rise by 0.013g% (0.009-0.020g%) per hour per drink of a middy (285mL) of beer, or a nip (28.5mL) of whisky. An average elimination rate is 0.2g% per hour. More than 50% of persons would be grossly intoxicated at a BAC of 0.15g%. Lethal blood alcohol concentration, of alcohol alone, is usually in excess of 0.400g%, and is much lower if CNS depressant drugs are present.

Delta-9-THC Acid References: 1, 111, 113

Therapeutic blood level

Peak 0.01-0.05mg/L

Toxic blood range

n/a

Reported blood fatal range

n/a

Reported liver fatal range

n/a

Because of fat solubility and long metabolic half life, this metabolite may be detectable for periods over a week. Symptoms of cannabis intoxication include red eyes, dry mouth, reduced concentration and coordination, altered perception, euphoria, sedation and hallucinations.

Major (inactive) metabolite of tetrahydrocannabinol (THC)."

There was no inquest since the deceased's sister, his next of kin, did not require it.

In his statement in the coroner's brief, Sergeant Hewitt summarised his conclusions as a result of his investigation as follows:

"14. About 1am on Sunday 17 September, 2006, I attended the deceased's resident at [address] in company with Senior Constable BAILEY and delivered a death message to the next of kin, Scott Whiteoak, the son of the deceased.

15. From the statements and certificates gathered it is ascertained that the deceased launched his son's vessel at the St George Motor Boat Club ramp, about 12 midday on Saturday the 16 th September, 2006 incompany with Linda NICOL, whom he had a relationship with for the past eight months. Once launching the vessel the deceased and his partner have travelled to various locations on the Georges River.

16. About 6pm this date the deceased has been seen travelling east on the Georges River, near Caravan Head at very high speed, outside of the designated channel. When at a point near Kangaroo Point the deceased has re-entered the main channel and collided with another vessel, which was travelling inside the designated channel, heading in a westerly direction.

17. The starboard midships of the deceased's vessel has struck the bow section of vessel 2, resulting in heavy contact. As a result the deceased was killed instantly and four persons from vessel 2 were thrown down into the water.

18. A number of private vessels came to the aid of the casualties and were subsequently towed to a waterfront residence at Kangaroo Point, where emergency services responded.

19. From witness accounts it would appear that the deceased has not travelled at a safe speed to avoid a collision. The master of vessel 2 was travelling at a reasonable speed and was unable to avoid the deceased's vessel.

20. It is also apparent that the deceased was consuming alcohol prior to the collision, returning a blood alcohol reading of 0.114g/100ml, Mid Range Prescribed Concentration of Alcohol. There were also cannabinoids detected from the analysis.

21. A statement obtained also suggests that the deceased would consume alcohol and smoke marijuana before and during driving vessels or spending time on the water and had been a regular user of marijuana for many years.

22. From the evidence gathered, it is thought that the deceased failed to navigate in the designated channel and at a safe speed, whilst under the influence of alcohol, which inevitably resulted in the fatality."

The first defendant's defence to the plaintiff's claim

The first defendant defends the plaintiff's claim on several bases.

First, he denies that the deceased was negligent. The basis of this allegation appears to be that the deceased was not the driver of the boat at the time of the collision.

Secondly, the first defendant alleges that the plaintiff is not entitled to damages because she was engaging in a dangerous recreational activity within the meaning of s 5L of the Civil Liability Act 2002 (NSW) ( the Act ). The particulars of the alleged dangerous activity refer to the deceased's state of intoxication and his failure to comply with various rules in the Navigation (Collision) Regulations 1983 (NSW), including driving at an excessive speed, not maintaining a proper lookout and driving a vehicle whose lights were not activated.

Thirdly, the first defendant alleges that the plaintiff's alleged injuries occurred wholly or in part as a result of her own fault and contributory negligence. The particulars of the plaintiff's contributory negligence are, in substance, that she travelled as a passenger in a boat driven by the deceased in circumstances where she knew or ought to have known that he was affected by the prior consumption of alcohol and or drugs to such an extent as to make him incapable of controlling the speed or direction of the boat.

The first defendant initially relied on the defence of volenti non fit injuria and alleged that the plaintiff perceived the existence of the danger of a collision and fully appreciated the danger and freely and voluntarily agreed to accept the risk of the danger materialising. However, Mr Newbrun, counsel for the first defendant, conceded in final address that he had not laid the foundation for this defence in his cross-examination of the plaintiff and accordingly did not press it. Later, he sent written submissions to my chambers in which he reversed his earlier forensic decision, with the consent of the plaintiff's counsel. Accordingly, this defence will be considered in these reasons.

Although the first defendant pleaded in his defence filed on 21 May 2010, that his liability is limited by the Limitation of Liability for Maritime Claims Act 1989 (Cth) and the Convention on Limitation of Liability for Maritime Claims 1976, he indicated at the commencement of his address that he neither pressed that defence, nor the defence that the whole of the deceased's estate has been fully administered and there are no assets of the estate remaining.

Findings on liability

The applicable law

Parts 1 and 2 of the Act apply to the plaintiff's claim since it is a claim for damages for harm alleged to have resulted from the negligence of the deceased and or the second defendant.

The negligence of the deceased

The first defendant sought to establish, by cross-examination of the plaintiff, that the plaintiff had been driving the boat at the relevant time and that the deceased was, accordingly, not negligent. The plaintiff denied that she drove boats and insisted that she refused to do so because she did not have the wherewithal to pay for any damage if there was any kind of collision or other mishap. Because of her lack of memory of the day in question, she was unable to give evidence of whether she took control of the boat at all on that day.

The only evidence that there was a possibility that the plaintiff, rather than the deceased, was in control of the boat on that day was a statement of Mr McKirdy, a friend of the deceased, which was contained in the brief to the coroner. Mr McKirdy said:

"I have known Linda to be in control of boats and she did have a medium level of experience boating [sic]. Linda new [sic] her limits and did not drive very often."

This evidence is insufficient to displace the plaintiff's evidence, and, at best raises a possibility only that the plaintiff was in control of the board.

I find, on the balance of probabilities, that the deceased was in control of the boat on the day of the collision, and that he was driving the boat immediately prior to, and at the time of, the collision.

For the reasons which are given in more detail below, the collision between the boat driven by the deceased and the boat driven by the second defendant occurred because the deceased drove at excessive speed in circumstances where his line of sight did not permit him to see the second defendant's vehicle before it was too late for him to take evasive action. The plaintiff, who was a passenger on the deceased's boat, suffered serious injuries as a result of the impact of the collision.

I regard the documentary evidence referred to above as uncontroverted, since the first defendant served a notice to admit the authenticity of the documents and also gave notice to the plaintiff that he wished to tender the documents himself pursuant to s 67 of the Evidence Act . The evidence referred to above is sufficient to establish that, and I find, the collision was caused by the deceased's negligence.

I find, for the reasons which follow, that:

(1) the relevant risk of harm was the risk that the deceased's boat would collide with another vessel or a fixed obstacle such as a channel marker, or the shore, and thereby cause personal injury or death, damage to property and economic loss;

(2) the risk of the deceased's boat colliding with another vessel or a fixed obstacle was foreseeable in circumstances where it was being driven at an excessive speed and in a direction that did not confer the benefit of a clear view on its driver;

(3) the risk was not insignificant;

(4) a reasonable person in the position of the deceased would have taken the precaution of slowing the boat to a lesser speed when navigating the area in the vicinity of Bald Face Point and Kangaroo Point.

Accordingly, a finding of negligence is not excluded by s 5B of the Act. None of the principles outlined in s 5C have any particular application to the instant case. I propose now to apply the general principles for which provision is made by s 5D of the Act.

The precautions which ought to have been taken to avoid or minimise the risk of harm were, in the main, the act of slowing the boat so that it did not pose a danger to other vessels or fixed obstacles.

The reckless way in which the deceased manoeuvred the vessel on which the plaintiff was a passenger was a necessary condition of the harm caused to the plaintiff. Furthermore I consider it to be appropriate that the scope of the deceased's liability extends to the harm caused to the plaintiff. The deceased, as the person in control of a vessel in motion, is the principal person responsible for its manoeuvres. If he failed, as I have found he did, to take reasonable care to drive it in a manner and at a speed appropriate to the circumstances, so as not to put others, including himself and his passenger at risk, then it is appropriate that responsibility for the harm should be imposed on him, or, in the event of his death, as occurred here, on his estate.

I am satisfied that the plaintiff has discharged the onus of establishing that the deceased's negligence caused the collision, and accordingly, that her injuries are a result of the deceased's negligence.

The alleged negligence of the second defendant

Mr Newbrun submitted that there was evidence from which I could infer not only that the second defendant had been negligent but also that his negligence had been a cause of the accident. He pointed to the statements of Mr Graham and Mr Jamieson in support of the particulars of negligence in the Amended Fourth Cross-Claim. Their statements are contained in the coroner's brief, and were tendered by the plaintiff, at the request of the first defendant who said that the statements were necessary background to the statement of Sergeant Hewitt, which was the subject of the s 67 notice.

Mr Graham lived at Stuart Street, Blakehurst, which is on the waterfront of the Georges River. He deposed to being on the verandah of his residence and seeing the second defendant's boat travelling from Bald Face Point to Kangaroo Point. He estimated this boat to be travelling at 35 kms/hr. He also deposed:

"This boat didn't seem to have any navigation lights on. At the time it was dusk. I kept watching the boat and it headed to go up the Georges River. The boat turned to head between the channel marker and the first boat that is moored at the tip of Kangaroo Point. It appeared that this boat was going to travel inside the port marker and a yacht that is moored at the tip of Kangaroo Point. This is because I saw this vessel to be stern on to me."

Mr Jamieson was on board a vessel which was moored at Blakehurst. He deposed to seeing the second defendant's boat travelling from Bald Face Point to Kangaroo Point. He deposed:

"The direction that the half cabin was heading, it appeared that it was going to go very close to the port mark or inside it. This port mark is located at the north east tip of Kangaroo Point."

Mr Newbrun ultimately abandoned his earlier submission that, had the second defendant sounded his horn, he would have been able to avoid the collision or mitigate its force. Nonetheless he pressed a submission that the second defendant's steering of the boat close to the port mark made a contribution to the resulting collision. He conceded that the causal contribution made by the second defendant's steering to the collision was significantly less than the negligent acts and omissions of the deceased.

It is not clear to which of the particulars of negligence of the cross-claim, this matter relates. Particular (l) is a possibility, and reads as follows:

"In breach of Navigation (Collision) Regulations 1983, Rules 9(f) and 34(e), failed to navigate with particular alertness and caution when driving the half-cabin cruiser near a bend where moored vessels were situated, namely driving the half-cabin cruiser in close proximity to or inside the channel marker position at the tip of Kangaroo Point on the Georges River, and without sounding one prolonged horn blast."

However, if the evidence referred to above relates to particular (l), then it would seem to be irrelevant because of the concession referred to above, that the sounding of a horn would have made no difference.

Particular (h) provides:

"Failed to alter the half-cabin cruiser's course to starboard so as to avoid a collision in breach of Rule 14 of the Navigation (Collision) Regulations 1983."

Rule 14 of the Navigation (Collision) Regulations 1983 provides:

"(a) When two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.

(b) Such a situation shall be deemed to exist when a vessel sees the other ahead or nearly ahead and by night she could see the masthead lights of the other in a line or nearly in a line and/or both sidelights and by day she observes the corresponding aspect of the other vessel.

(c) When a vessel is in any doubt as to whether such a situation exists she shall assume that it does exist and act accordingly."

I do not consider the second defendant to have been in breach of this regulation. Nor am I satisfied that any of the particulars of negligence alleged in the Amended Fourth Cross Claim has been made out. The second defendant was only a cause of the collision in the strict 'but for' sense. Had his vessel been in a different place, it may not have collided with the deceased's vessel.

The sentence extracted from Sergeant Hewitt's statement above (which is based on a number of witnesses statements to similar effect) is sufficient to establish that the second defendant was not negligent:

"The master of vessel 2 was travelling at a reasonable speed and was unable to avoid the deceased's vessel"

I find that the second defendant was unable to avoid the deceased's vessel. Further, I find, in accordance with the overwhelming evidence in the coroner's brief, that the second defendant's boat was illuminated. I do not regard Mr Graham's speculation that it may not have been to be of sufficient weight to displace the evidence of other witnesses who deposed that it was illuminated.

Whether the plaintiff was engaged in a dangerous recreational activity

The first defendant alleges that the deceased is not liable in negligence for harm suffered by the plaintiff, since the harm suffered was a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Accordingly, it is necessary to determine whether the plaintiff was engaged in a dangerous recreational activity.

Section 5K of the Act defines "dangerous recreational activity" as:

"... a recreational activity that involves a significant risk of physical harm."

"Recreational activity" is defined 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."

"Obvious risk" has the same meaning as it has in Division 4.

By s 5K "obvious risk" in s 5L has the same meaning as it has in s 5F. Section 5F provides:

"(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."

As Mason P said in Lormine Pty Ltd and Anor v Xuereb [ 2006] NSWCA 200, at [31]:

"The principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92])."

The recreational activity in question can be viewed at various levels of generality. Travelling on a motor vessel in a protected waterway such as the Georges River may not be dangerous at all if the driver of the vessel is not intoxicated and is taking due care. However where, as here, it was dusk, the boat was not illuminated, it was travelling at such a speed that the sound of its motor could readily be identified at a distance and remarked upon and, I infer, the driver was intoxicated, the recreational activity of boating on a river had become, by those circumstances, dangerous.

However, it does not follow, merely because the deceased was engaged in a dangerous recreational activity at the time of the collision, that the plaintiff ought also be regarded as so engaged. In the instant case the evidence shows that the deceased engaged in a dangerous recreational activity since he was in charge of a power boat, which did not have its lights on, after dusk while under the influence of alcohol. The plaintiff was a passenger on the vessel. There is, however, no evidence from which I can infer that the plaintiff engaged, in any positive sense, in the dangerous recreational activity in which the deceased was engaged. For the reasons given more fully below, the evidence does not exclude various possibilities which are inconsistent with her having engaged in the dangerous recreational activity. For example, the plaintiff may have pleaded with the deceased to stop drinking, let her off, slow down, put the lights on or sound the horn.

The first defendant submitted that the dangerousness of the recreational activity ought be judged by reference to the minutes immediately preceding the collision, rather than to the whole of the period from the time the deceased and the plaintiff got on the boat on 16 September 2006. He said that the description given by Maryanne Korbi, whose statement formed part of the brief to the coroner, gave a reliable indication from a person who was in the vicinity of the accident when it occurred. Ms Korbi stated:

"4. Later on, at around dusk, I can't say what time it was exactly as we didn't have a mobile phone or watch, but I remember the lights on the channel were flashing. I think the channel marker just to my left was flashing white. There was another channel marker a long way away, just off Kangaroo Point, it was flashing red.

5. At about this time I heard the sound of an engine that was rather loud. It was coming from my right near Como Bridge. I turned and looked toward the noise and saw a white coloured boat. I was horrified at the speed at which the boat was travelling, I have never seen a boat go that quick. I've never seen any boat travel at that speed on the Georges River. Looking at a street directory I would estimate that the boat was off Green Point, Como when I first saw it. There was a lot of spray coming from the back of the boat and the front or tip of the boat was angled up.

6. I watched the boat go past us. The boat was travelling close to the opposite side of the river to where we were fishing. I said to Thomas, Tony and Chloe, 'This guy has got a death-wish, he's going to end up killing someone if not himself . ' The boat past [sic] our position, I noticed the motor noise didn't change so he was still going fast. This got our attention as we discussed how he was going to negotiate the bend at Kangaroo Point. We all kept looking in that direction. I could see the red light flashing at Kangaroo Point and that's when we lost sight of him.

7. Moments later we all heard an explosion and I also felt something like a vibration. It was very loud it felt very close. Chloe said, 'He's hit the flashing light'. I said, ' The light is still flashing, he's hit something just around the bend not the light' ." [Emphasis in original]

I accept Mr Newbrun's submission about the time during which the matter must be assessed. There is no evidence that the deceased was engaged in a dangerous recreational activity in any period other than that immediately prior to the collision. Indeed, that the danger associated with the recreational activity was so short-lived has, in my view, a significant bearing on the extent to which the plaintiff can be said to have engaged in it.

Mr Newbrun submitted that there was a number of matters which, taken together, compelled an inference that the plaintiff did not object to the deceased's risk-taking behaviour in the minutes prior to the collision and therefore could be said to have engaged in the same dangerous recreational activity in which the deceased was engaged.

He relied on each of the following matters which he contended established that the plaintiff was both a thrill seeker and a risk taker, and that she therefore participated in the same activity as the deceased immediately prior to the collision:

(a) The plaintiff drove a sports car, a Mazda MX6, with a V6 engine which she purchased second-hand about three years prior to the accident, and admitted that she not only enjoyed driving it but also enjoyed being seen in it;

(b) The plaintiff had owned horses and had ridden them in endurance events;

(d) The plaintiff had undertaken waterskiing a couple of times a year;

(e) the plaintiff regularly went out on powered boats, including with the deceased; she enjoyed the freedom of being on the water and the wind on her face;

(f) The plaintiff had gone up in a hot air balloon when on a recent holiday in Egypt;

(g) The plaintiff had experimented with heroin when she was nineteen, and it was probably as a result of this that she contracted Hepatitis B;

(h) The plaintiff had snorted cocaine as a teenager three or four times;

(i) The plaintiff, as an adult, had taken cannabis in the form of joints, although not in the months prior to the accident;

(j) The plaintiff was a heavy drinker; and

(k) The plaintiff had been convicted of a mid-range drink driving offence about fourteen years prior to the accident, as a result of which she was not permitted to drive for four months.

Mr Newbrun said further that the plaintiff was obviously a strong, independent woman who was perfectly capable of objecting to any behaviour of which she did not approve and making her views known. He also submitted that the plaintiff's evidence that the deceased listened to her concerns and tended to do what she asked him to, ought lead me to infer that she did not object to his conduct since, if she had objected, he would have desisted.

Mr Newbrun also submitted that the plaintiff was a person who was prepared to act in disregard of her own interests, and that this tended to establish that she would not have objected to the deceased's reckless driving of the boat immediately prior to the accident. He relied on the plaintiff's evidence that in the past she had, for about four years, been in a violent relationship, in the course of which she was regularly beaten senseless and also her previous drug use, and in particular her use of heroin.

I consider this submission to be an extraordinary leap in logic, and I reject it. To suggest that a woman who has successfully extricated herself, ten years previously, from a violent relationship, obtained treatment for psychological problems as a result of it, and obtained regular employment for which she qualified herself by doing a course, would have been prepared by reason of those matters to be an active participant in a highly dangerous manoeuvre while a passenger in a speedboat is fanciful and at odds with experience.

I find that the plaintiff's use of heroin was as she disclosed in evidence: that she had experimented with it when she was a teenager, more than twenty years prior to the accident, and she had not used it since that time. I do not consider this to be relevant to the issues for determination in this case. Nor do I consider that her prior use of heroin bears on the plaintiff's credibility.

In addition to the matters referred to above, Mr Newbrun also relied on the circumstance that the plaintiff was prepared to travel overseas on her own. I do not consider that circumstance to be probative of the issues in this case.

Mr Newbrun spent a deal of time in the hearing cross examining the plaintiff about whether she was a heavy drinker, and the extent to which she had an alcohol problem. He was presumably seeking to establish that her heavy drinking made her a risk-taker, that she drank heavily on the day of the accident, and that the disinhibiting effects of alcohol meant that I should find that she engaged in the activity in which the deceased was engaged prior to the collision.

Mr Newbrun also relied on the statement of Sergeant Gorick, which was included in the brief to the coroner. Sergeant Gorick stated:

"I observed an esky and a number of beer cans and wine bottles floating in the water. I could not be positive but strongly suspect that this debris was from WHITEOAK's vessel."

Even were I to assume that Sergeant Gorick's suspicion was correct and the debris came from the deceased's vessel, this does not, without more, establish that the deceased and the plaintiff consumed alcohol from those receptacles on the day of the accident, and if so, in what proportion.

There is neither evidence of what the plaintiff's blood alcohol concentration was at the time of the accident, nor evidence from which her consumption on that day can be deduced. Although I am prepared to infer that the plaintiff and the deceased drank alcohol together on the day of the accident, since it was the plaintiff's evidence that that is what they intended to do, it was their usual practice, and the defendant's blood alcohol reading establishes that he did so, there is insufficient evidence from which I could infer how much the plaintiff drank, and to what extent she was affected by alcohol in the minutes immediately preceding the collision.

In any event, I accept, as a matter of common experience that views differ about what constitutes heavy drinking. The plaintiff's daughter Rachel, who does not drink, has described her mother as a heavy drinker, but the plaintiff is resistant to that description and maintains that she is not an alcoholic. Whether the plaintiff is a heavy drinker or not, the fact remains that, as I have said above, the evidence of her drinking habits is not sufficient for me to make a finding about her consumption on the day of the accident, except to the extent referred to above.

Mr Newbrun also sought to obtain the plaintiff's agreement that she was a heroin user, based on some notes to that effect in the St George Hospital file, the tender of which I rejected and which is the subject of a separate judgment given on 29 November 2011: Nicol v Whiteoak & Anor [2011] NSWSC 1467. He put to her that she had puncture marks on her right anterior elbow area from heroin injections. The plaintiff denied the proposition and observed that this was unlikely in any event since she was right-handed.

Mr Newbrun also suggested to the plaintiff that she consumed a substantial quantity of alcohol on the day of the accident. I accept the plaintiff's evidence that she does not recall how much she consumed on that day.

Mr Newbrun submitted, in respect of the deceased, that he was intoxicated but not particularly so, since his blood alcohol level was only in the mid-range and he was, as the statement of Mr McKirdy indicates, a seasoned drinker. Therefore it could not be inferred that he was particularly affected or disinhibited such as would incline him to override the wishes of the plaintiff as to how he should drive the boat. Mr Newbrun accepted that I could not find, on the balance of probabilities that the deceased was affected by cannabis at the time of the accident, because the long half life of such substances in the body means that their presence indicates only that cannabis was taken in the previous week.

Mr Newbrun submitted that because the plaintiff had been present when he was consuming alcohol on that day she had participated in his loss of inhibitions and had therefore participated in the dangerous activity which may have been a result of his ingestion of alcohol.

The instant case is quite some distance from that of the passenger who hands the keys to the car to an obviously intoxicated friend, who is an inexperienced learner driver, and asks her to drive her home ( Williams v GIO [1995] NSWCA 516 per Cole JA, with whom Meagher JA agreed). A point of significant distinction is that in the motor vehicle cases, the relevant decision made by the passenger is, generally, whether to get into the motor vehicle when the driver is intoxicated, since drivers do not usually drink while driving. Boats are, however, different in this respect in that the plaintiff and the deceased may have been completely sober when they got onto the boat that morning.

The first defendant relied on the report of Professor Starmer to support the proposition that the plaintiff must have been aware of the deceased's increasing intoxication. However, Professor Starmer stated that: "The signs and symptoms of alcohol intoxication increase as a function of blood alcohol concentration and vary to some extent among individuals". There is no material before me which would enable me to determine to what extent, if at all, the deceased was exhibiting the so-called 'cues' that, in the first defendant's submission, would have given the plaintiff some forewarning that the deceased would be likely to act as he did and drive in the reckless and dangerous manner which ultimately led to the collision. I shall return to this matter when considering whether the plaintiff was guilty of contributory negligence.

However, there are matters that go the other way and might tend to suggest that the plaintiff objected to the defendant's handling of the boat in the minutes prior to the collision and the defendant disregarded her objections. First, she was very fond of the deceased and considered that they had a future together and "should have been together". It is unlikely in those circumstances that she would collaborate in any turn of events that expose either the deceased or herself to a considerable risk of physical harm. Secondly, she was a mature woman who had a regular, stable job which she enjoyed. She was also the mother of a daughter, had a good social life and was living with a close friend.

I consider that the evidence referred to above permits of no more than speculation. The possibility that the plaintiff went along with the deceased's recklessness can no more be excluded by the evidence than the possibility that the plaintiff objected to it and demanded, fruitlessly, to be allowed to get off the boat.

In the absence of any evidence to implicate the plaintiff in the dangerous aspects of the otherwise relatively safe recreational activity of travelling on a boat in a protected waterway such as the Georges River, I find that the first defendant has not discharged the burden of proof of establishing a defence under s 5L of the Act.

Whether the plaintiff was guilty of contributory negligence

Before considering the allegation of contributory negligence pleaded by the first defendant, I note that the Act, in Part 6, makes specific provision where a person is intoxicated and, in certain circumstances, creates a presumption of contributory negligence and mandates a minimum reduction in damages of 25% in circumstances where the presumption applies.

Neither of the defendants sought to rely on Part 6. However, for completeness, I propose to set out my reasons for deciding that it does not apply lest it be thought that it has been overlooked.

Part 6 applies to the instant case by reason of s 47(1). Section 48 provides relevantly that a reference to a person being "intoxicated" is a reference to a person being under the influence of alcohol. No party contended that the duty of care or standard of care owed to the plaintiff by the deceased was affected by the fact that she was probably intoxicated.

Section 50 provides:

"(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced."

It has not been established that the plaintiff was, at the relevant time, intoxicated to the extent that her capacity to exercise reasonable care and skill was impaired. Accordingly s 50 does not apply and I do not need to determine whether the presumption of contributory negligence would otherwise arise.

The allegation in the first defendant's defence of contributory negligence involves similar considerations to those addressed above in the determination of the question whether the plaintiff herself engaged in the dangerous recreational activity which was being engaged in by the deceased.

Whether or not a passenger in a vehicle driven by a negligent driver is to be regarded as guilty of contributory negligence is a question of fact. For example, it may be that if the owner of a vehicle gives the keys to a car to a person whom the owner knows to be intoxicated and asks that person to chauffeur the owner home, the owner/passenger can be said to have acquiesced in the driver's negligence such that it is appropriate to discount the passenger's damages on the grounds of contributory negligence.

In Joslyn v Berryman (2003) 214 CLR 552, the High Court considered the appropriate test for determining whether there was contributory negligence in the context of an intoxicated passenger accepting a lift from an intoxicated driver. It found the test to be an objective one. This is, in any event, mandated in the instant case by s 5R of the Act.

McHugh J articulated the issue in the following terms, at 566:

"Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication."

Even if the deceased was not exhibiting any obvious signs of intoxication, perhaps because he was a seasoned drinker, a reasonable person in the position of the plaintiff would have been able to appreciate that his capacity to drive the boat was being compromised at least to some degree by the alcohol he was ingesting in the course of their afternoon together on the Georges River. Since there were only the two of them on the boat a reasonable person in her position would have been in a position to see him drinking and assess how much alcohol he had been drinking over the hours since they got on the boat at La Perouse.

Even if, until the minutes immediately before the accident, the deceased had been driving the boat in a reasonable fashion, the plaintiff was arguably in a different position to other persons on the river who might have observed the deceased at the helm. As Kirby J said in Joslyn , at 598:

"Other witnesses who saw her after the accident might say that she showed no signs of intoxication. But Mr Berryman knew differently. This will commonly be the case where a driver and passenger have engaged, together or close by, in an extended bout of alcohol consumption over a continuous interval."

However, in the instant case, there is scant evidence of what happened on the boat prior to the collision, since the two people present cannot give evidence about it: the deceased because he was killed by the impact, and the plaintiff because the impact deprived her of the recollection of the relevant period of time. Although I infer that the deceased must have imbibed a considerable quantity of alcohol on the boat, in the presence of the plaintiff, the evidence is not sufficient to establish that a reasonable person in the position of the plaintiff could or should have appreciated the extent to which the deceased's judgment was affected, at a time when she could have done anything to minimise the risk of harm to herself. There is no evidence that the manner in which the deceased was handling the boat was in any way noteworthy or negligent until immediately prior to the collision.

Furthermore, even had she appreciated it, I do not have evidence that would enable me to determine whether the plaintiff asked him to go ashore to allow her to disembark, or pleaded with him to drive more slowly or to turn the lights on, or sound the horn. She may have done all, or none, of those things. He may have skolled a large quantity of wine immediately before performing the dangerous manoeuvre which led to the collision, at a time when she was powerless to stop him, or to extricate herself from the danger his conduct exposed her to.

For the foregoing reasons the first defendant has not discharged the onus of proving that the plaintiff was guilty of any contributory negligence.

The defence of volenti non fit injuria

In order to establish this defence, the first defendant must prove the following three matters: first, that the plaintiff knew of the factual circumstances that were dangerous; secondly, that the plaintiff knew that these circumstances constituted a danger and that she was cognisant of the nature and extent of that danger; and thirdly, that she freely and voluntarily decided to risk that danger ( Negligence - volenti non fit injuria (1991) 65 ALJ 685).

In Carey v Lake Macquarie City Council [2007] NSWCA 4, McClellan CJ at CL, after summarising the authorities, put the integers of the defence that the defendant is required to prove in the following terms, at [85]:

"1. That the plaintiff perceived the existence of the danger;

2. That he or she fully appreciated it;

3. That he or she freely and voluntarily agreed to accept the risk."

Section 5F of the Act defines obvious risk and s 5G provides for a rebuttable presumption that a person who suffered harm is aware of a risk of harm if it was an obvious risk. The danger was that of being a passenger in a boat which was travelling at excessive speed at dusk in a waterway where there were inlets and promontories which impeded line of sight. There was an obvious risk of harm to the plaintiff in those circumstances. Since the plaintiff could not give evidence to rebut the presumption, the effect of these provisions in the instant case is that the first defendant has established the first two matters listed above.

However, there is no presumption that assists the first defendant to prove the third matter. Mr Newbrun was left to reiterate his argument that the plaintiff was a risk-taker and that the deceased tended to comply with the plaintiff's requests as a basis for an inference that the plaintiff, by remaining while the deceased was engaged in the dangerous driving on the boat, was the result of her free and voluntary agreement to the risk of harm, rather than any other reason. Such other reasons could include that she was unable to deter the deceased, and that she feared that the risk of harm of jumping out of a speeding boat would not necessarily be less than remaining in the vessel.

I find, for the reasons set out above, including those set out in relation to the consideration of contributory negligence, that the first defendant has not discharged the onus of proving that the plaintiff freely and voluntarily accepted the relevant risk. Accordingly, the defence of volenti non fit injuria fails.

Liability of the deceased and the second defendant

For the reasons already given, I am not satisfied that there is any evidence of negligence on the part of the second defendant which implicates him in the collision. He simply happened to be the driver of a boat that was in the path of the deceased's boat when he performed the reckless and dangerous manoeuvre that led to the collision.

There is ample evidence of the deceased's negligence.

It follows that there will be judgment for the plaintiff against the first defendant, judgment for the second defendant on the plaintiff's claim and judgment for the second defendant/cross-defendant on the plaintiff's cross-claim.

Contributory negligence not having been established, there is no reduction of the plaintiff's damages on that, or any other, basis.

The plaintiff's credibility

The first defendant submitted that I should find the plaintiff to be an unreliable witness.

Mr Newbrun spent considerable time cross-examining the plaintiff about her drug use prior to the accident. There appear to be two purposes to these questions: first, he wished to establish, as I have set out above, that she was a reckless risk-taker; and secondly, he sought to undermine her credibility. The difficulty with the latter purpose is that the source of much of his cross-examination were the plaintiff's own admissions about these matters to Dr Roberts, whom she had attended at the request of the solicitors for another party to the proceedings (against whom the deceased's cross-claim has been discontinued) for a medicolegal purpose.

The plaintiff was frank to Dr Roberts about her previous drug use, except that she did not disclose her use of heroin at the age of nineteen, although she disclosed it in her evidence. When asked to explain why she did not disclose it to Dr Roberts, she explained, in a way that I found to be both credible and understandable, that it was not something of which she was particularly proud.

The plaintiff was forthcoming in her evidence about matters which went against her interest. Although she acknowledged her disabilities, she did not appear to exaggerate them. She admitted that she could do most things for herself in Forster and that she was driving again. Indeed, it is possible that her evidence reflects a more positive view of her capacity, than is the fact. I note that Mr Cowell, her treating clinical psychologist, considered that "she may have been putting on a brave front to make it appear that things were fine".

The plaintiff's recollection was very vague about the day of the accident and the ensuing weeks and months, which is consistent with the serious head injury which she sustained. Otherwise, she gave her evidence in a straightforward way and appeared to have a relatively good recollection of past events and events from about two years following the accident onwards.

Assessment of damages

The plaintiff's circumstances prior to the accident

The plaintiff was born on 29 July 1962. She was, accordingly, 43 at the date of the accident, and 49 at the date of hearing. She has one child, a daughter Rachel, who was born on 30 August 1984. The plaintiff has brought Rachel up as a single parent.

The Plaintiff was in a violent relationship in her young adulthood. She gave evidence, which I accept, that she had an adverse emotional response to this relationship about 13 years ago, in 1998, which has been described as "post traumatic stress disorder". The disorder manifested itself in insomnia, nightmares, being "jumpy at loud noises", not liking people to be standing behind her and a tendency to imagine the worse case scenario as being the most likely scenario.

The plaintiff gave evidence that she struggled with this condition for some years before ultimately having herself admitted, about 9 years ago, to Jarrah House, a residential treatment facility for women. She admitted that she exaggerated the extent of her misuse of alcohol in order to obtain admission. The plaintiff considered this to be something of a ruse in the sense that she did not regard herself as being alcoholic, although she was, at the time, dependent on alcohol to assist her to sleep at night.

After she was discharged from Jarrah House, Prozac was prescribed for her. From that time until the accident, she continued to take 20 mg of Prozac a day. She described it as turning her life around, as getting her life back. She was able to obtain employment and sleep at night time. The Prozac also ameliorated the nervousness to which she had previously been subject.

The plaintiff continued to drink alcohol, which she initially described as 'social drinking'.

Prior to April 2004, she embarked on a 28-week "Medical Terminology Office and Computing Course" at TAFE, in the course of which she was trained to use a computer, in order to equip herself for a job as a medical receptionist.

In about April 2004, she started working as a medical receptionist at the Woolooware Medical Centre, which was about three minutes walk from where she was then living. She continued to work there until the accident for approximately 26 hours a week. She was paid at casual rates in that she was not paid when she was on holiday and had no long service leave. Her tasks included keeping records, attaching results to such records, answering the telephone, managing billing records and assisting the doctors with making sure that patients who were taking Warfarin were taking it at the right level. She gave evidence that the job involved dealing with emergencies and that no two days were the same. She considered that the job required a degree of flexibility on the part of the receptionist to deal with such situations as they arose.

She enjoyed the job and in particular "the responsibility of it all". She gave evidence that she would still be working in that employment but for the accident.

The plaintiff was a qualified gymnastic teacher and coach and had earned money from such activities, the details of which are not revealed in the evidence.

Her leisure activities included riding horses, skiing and going to the gym.

Prior to the accident, the plaintiff was living in a house she shared with her daughter Rachel, a close friend Deborah Harper and Mrs Harper's daughters who were aged about six and nine at the time of the accident. Rachel was 22. The plaintiff described herself as "strong and independent" and as having a lot of friends in Cronulla.

The plaintiff gave evidence that she was happy prior to the accident. She had returned from a holiday in Egypt three weeks before the accident. She had travelled on an organised tour but had not otherwise had a travel companion. She had been in an intimate relationship with the deceased for about ten months and thought that they "had a future together".

Injuries and disabilities sustained by the plaintiff as a result of the accident and resultant treatment and operations

There is no real dispute between the parties about the plaintiff's injuries and disabilities. They are amply substantiated by the medical reports tendered by the plaintiff. However, the effect of these injuries and disabilities on the plaintiff's earning capacity and need for attendant care services are a matter of substantial dispute. The opposing positions will be referred to in my assessment of damages below. I propose now to set out my findings on the plaintiff's injuries and disabilities.

I am satisfied that the plaintiff suffered traumatic injury to the brain which caused a subarachnoid haemorrhage and intracerebral haemorrhage. She was in post-traumatic amnesia for two weeks after the accident.

I am satisfied that the plaintiff suffered the following multiple orthopaedic injuries to her body: skull fractures, fracture of the left orbit (fracture to the floor and medial wall of the left eye socket), multiple fractures to the face including fracture of the nose, fractures of both arms including a compound fracture mid shaft of the left humerus, injury to the left shoulder, fracture of the right acetabulum (hip joint), fractures of the pelvis, fractures to the left leg (a compound fracture of the mid shaft of the left tibia, and a comminuted fracture of the left fibula), and a fracture of the right heel and ankle (calcaneus fracture).

The plaintiff underwent several operations for these injuries including: open reduction and internal surgical fixation of the left humerus using a plate, open reduction and internal surgical fixation of the left tibia using a metal nail, repair of right acetabulum fracture, osteectomy of fractured right heel, plastic surgery on left tibia wound using a local flap of skin and a skin graft, closed reduction and skin graft of the fractured nose and debridement of the left leg and both knees.

When the plaintiff regained consciousness left peroneal compartment pressure syndrome was diagnosed and she underwent an anterior compartment peroneal fasciotomy cutting away the surrounding fascia to relieve the pressure on the affected nerve.

On 8 November 2007 a surgical excision of the spur of bone that developed over the fractured right heel was performed. This procedure was complicated with a pressure sore which became infected with extensive skin breakdown over the right heel. This required subsequent treatment and prevented the plaintiff from walking on the affected leg for an extended period.

In addition to multiple lacerations and contusions, the plaintiff suffered degloving injuries to her left leg and both knees in which extensive sections of the plaintiff's skin were torn off the underlying tissue.

I am satisfied that the plaintiff has suffered extensive physical and psychological pain and discomfort as a result of the tragic and traumatic circumstances of the accident and her multiple injuries. When the plaintiff regained consciousness she was informed that her partner had been killed in the accident. I accept that her partner's death exacerbated the plaintiff's post traumatic stress disorder.

The plaintiff was advised by Dr Deva, plastic surgeon, to have revision operations to ameliorate the scarring on her face and back as well as on the left leg, both arms and both knees. I accept that the plaintiff has been unable to afford to have these operations, despite her embarrassment about the prominence of these scars, but that, if her financial means permit it, she would have these operations.

Residual pain and disability at the time of the hearing

The plaintiff fractured her skull in the accident and continues to feel itchy around the affected area, but because the itch is subcutaneous she cannot relieve it by scratching it. She has a blind spot the width of a matchstick in the vision of the left eye due to an injury to her left eye socket.

She had diplopia on the left side, which has resolved but for some period she had to tape her eye at night to stop the eyelid and the eye from drooping. The fractures to her nose have resolved.

She had multiple fractures to both arms. Her left arm is heavily scarred. She cannot carry any weight with her left arm and when she applies any pressure to it or uses it in any substantial way, she can feel the screws inside the arm. She cannot sleep on her left side because of injuries to the left shoulder. Her right arm has healed although her wrists are weak in both sides.

She fractured her right hip and pelvis. Her right hip still clicks from time to time.

Her left leg was degloved and has left her with considerable scarring, including a large scar to the left shin which measures approximately 15 cm in length and 6 cm in width. She continues to feel pain in her left foot and left knee, in part because of the pressure caused by the metal insert which goes from the knee to the foot. This partly explains why it is difficult for the plaintiff to carry anything heavy.

She fractured her right heel and ankle. She wears slip-on flat shoes to mitigate the effect of a lump on her right heel which is a bony prominence consequential on the malunion of her heel fracture. Although the spur was excised by surgery in 2007, she is still limited in the range of shoes that she can wear.

The plaintiff's life after the accident

The plaintiff gave evidence that she had a lot of painful memories and had no energy in the aftermath of the accident.

She was in hospital for two months during which time she obtained assistance from her daughter and her friends, who brought food to the hospital and attended to tasks that needed to be done, such as paying rent for the plaintiff.

After two months she was discharged from hospital and went home to where she had been living prior to the accident. Both Deborah Harper and the plaintiff's daughter Rachel looked after her for the period of her recovery. Another friend, Joanne Johnson also helped. Rachel had intended to leave for London at around the time of the accident, but she deferred her departure for about a year so that she could look after the plaintiff. The plaintiff was in a wheelchair when she came out of hospital and was still on a blow-up mattress because it was softer on her body and the fractures she had sustained in the accident had still not healed.

During the first two months at home following discharge, the plaintiff needed assistance with transfers, toileting, clothing, bathing and cooking.

She gave evidence that she was "a lot slower" after the accident, that she cries every day and becomes confused. She is not happy to leave the house and she spends a considerable amount of time alone but the solitude makes her feel worse.

The plaintiff moved to Forster in October 2010 because she could no longer afford to live in Sydney on the disability benefit she receives by way of social security payment. She has not yet made friends in Forster, although one of her cousins lives in the vicinity. She has, however, arranged to join a bowling club and meet a woman she met there once a fortnight. She continues to take Prozac. She drives an old automatic Ford station wagon, which she uses to drive to her cousin's place, twenty minutes south of Forster.

From time to time, her cousin, and her acquaintances in Forster help her with domestic duties, but she largely manages these on her own.

The plaintiff does not engage in the recreational pursuits in which she engaged prior to the accident. She does yoga but finds it difficult to balance.

The plaintiff has not been in any paid employment since the accident. When she was in Sydney she did a single day's voluntary work at Sutherland Hospital, explaining the areas of the hospital to visitors. In the past two months she has done some voluntary work at Forster at the Kindy Gym which is run by the YMCA. She attends twice a week, for two hours on a Tuesday and two hours on a Thursday. She assists small children to play on the mats and beams. For example, she holds a child's hand while the child walks along a beam and makes sure that the children roll over on the big padded mats. She did not, however, consider herself to be reliable in her attendance.

She has not applied for a job because she has been unable to find a job which she considers she could do. She says that she would not be able to do her previous job because she does not trust her memory and could not be relied upon not to make mistakes. She cannot stand for long periods and if she is required to do so she tends to lean on one leg. She is not good at managing stairs and tends to panic on public transport.

She does not have a computer and has rarely used one since the accident. She has been taught to use a computer on a terminal in the Commonwealth Bank so that she can pay her mobile phone bill, and does so, albeit with the assistance of Bank staff. She principally uses her mobile phone to keep in touch with Rachel who now lives permanently in London. She does not have an email address. The plaintiff gave evidence that she tried to use the computer in the library but found it confusing because there was no one to assist her.

Her sleeping pattern is erratic. She generally wakes at four and, if she cannot return to sleep, she gets up and watches television and makes herself a cup of tea.

A friend, Joanne Johnson, has arranged for the plaintiff's rent and her electricity to be taken out of her pension every fortnight because the plaintiff is troubled by bills and anxious lest she forget to pay them on time.

Damages for non-economic loss

The determination of damages for non-economic loss is governed by s 16 of the Act.

The plaintiff has undoubtedly suffered very serious injuries which have affected much of her body and her mental capacity. I accept the first defendant's submission that she has made a remarkable recovery. Her recovery, however, is far from complete. She has physical and mental disabilities which will continue for the rest of her life. She suffers from pain, discomfort and embarrassment as a result of her injuries. She has lost confidence in her mental capacity because of the brain injury. The negligence of the deceased has robbed her of much of her former feistiness, vigour, confidence and capacity.

She is at substantial risk of arthritis in several joints because of the traumatic fractures which she sustained in the course of the collision. Although she remains an attractive woman, she has been disfigured by scars on her face and her limbs.

Notwithstanding her injuries, and scarring, she presented as a confident and articulate woman who was willing to extend herself to the extent to which she could, and who wanted to be self-reliant, as she had been before the accident. It was these characteristics which make me more inclined to accept that her judgment of her limitations and of the effect of the collision on her life is substantially realistic. In particular, I accept that she will try to overcome the emotional difficulties which the collision has caused her, and that she will endeavour to engage more fully in the lives of those around her, but that it is unlikely that she will ever work again in a regular, demanding and responsible job. She continues to suffer from an inability to deal with the world in the way in which she did prior to the accident and regularly retreats into her flat where she remains alone. She does not like solitude, and has made some attempts to seek out the company of others.

The plaintiff contends that 50% of the most extreme case is appropriate. The first defendant contends that this figure is excessive. Neither counsel referred me to earlier decisions of courts for the purpose of establishing the appropriate award in the proceedings. I do not propose to exercise the power conferred on me by s 17A of the Act to refer to such decisions. In the exercise of my discretion I find that the severity of the plaintiff's non-economic loss is 50% of the most extreme case.

I confirm that the maximum amount for the most extreme case is $520,000. Accordingly, I award $260,000 for damages for non-economic loss in light of my finding that the severity of the plaintiff's non-economic loss is 50% of the most extreme case. No interest is payable on this head of damages.

Damages for past economic loss due to loss of earnings

An analysis of the plaintiff's 2006 income return, being the last full financial year prior to the accident, shows that she was earning $460 per week, after deductions for income tax and Medicare levy.

The first defendant submits that the plaintiff could have returned to work about two years after the accident when the care she was provided by friends lessened.

The plaintiff submits that she will be unable to work again.

Although it may sometimes be the case that a plaintiff might not make attempts to find employment pending the resolution of proceedings for damages for negligence, it was not put by the first defendant to the plaintiff that she had adopted this approach. Nor do I detect any material in the evidence to suggest that the plaintiff has not explored such options as may be available. Her preparedness to work as a volunteer at the local YMCA does not demonstrate an earning capacity; rather it demonstrates an acknowledgement that she ought not put herself in a situation where she has to perform to standards of which she considers herself to be incapable of achieving. Medical practitioners whose reports are in evidence have noted the plaintiff's desire to return to work. I find that her inability to find suitable employment is a result of her injuries rather than any lack of motivation on her part.

The plaintiff underwent neuropsychological testing by Ms Flanagan in December 2007. Ms Flanagan considered her work tolerance to be very restricted and noted that she was likely to make an unacceptable number of errors even if she worked only a few hours a day. She underwent further neuropsychological testing conducted by Dr Roberts for medicolegal purposes on 7 June 2011. Quite properly Dr Roberts defers to medical opinion on whether the plaintiff has suffered any permanent neurological impairment. I do not otherwise find Dr Roberts' report of assistance since it is based on a history of substance abuse which is inconsistent with my findings. In particular, she appears to have based her opinion in part on the assumption that the plaintiff was a heroin user at the time of the accident.

I accept the plaintiff's submission that she was not able to work in the period from the time of the accident until the time of the hearing because of injuries sustained in the accident. I assess the plaintiff's loss of earnings for the past at the rate of $460 per week. It is 271 weeks since the date of the collision. I award damages of $124,660.

The plaintiff is entitled to interest on these damages under s 18 of the Act. I request that the parties calculate the applicable interest and bring in short minutes of order reflecting their calculations.

Loss of past superannuation benefits

I have calculated this head by reference to 11% of the net figure for past economic loss.

Damages for future economic loss due to the deprivation of earning capacity

I have recorded in the reasons above my impression of the plaintiff's prospects of employment. Although she is articulate and motivated, there are many obstacles placed in her path by the injuries she sustained in the collision. She is incapable of standing for long periods and therefore would not be able to perform work as a shop assistant, checkout operator TAB operator or in a hotel. She cannot lift with her left arm which substantially compromises her ability to lift larger or heavy objects and therefore she would be unable to perform a job such as store packer or even cleaner or child care assistant. Although she has no difficulty in sitting for long periods, her ability to remember and concentrate has been compromised by the accident, which would make her ill-suited for a job as a receptionist. She used a computer in her pre-accident job, but has rarely used one since the collision. It is possible that this gap could be improved by her doing a course of some sort, but I do not consider there to be any real prospect that this would result in remunerative employment.

Although I find her to be well-motivated, I do not consider that she would be an otherwise attractive proposition for an employer on the open labour market because of her disabilities. It is likely that her resilience and determination will lead her to do more volunteer work, which is less demanding and more flexible than jobs for which remuneration is paid.

There is some medical support in the reports tendered both by the plaintiff and by the first defendant in these proceedings for the plaintiff's having some ongoing earning capacity. For example, the first defendant relies on a report prepared by various experts under the auspices of the "Vocational Capacity Centre", the conclusion of which is that the plaintiff can work full time in a sedentary position.

However, the opinions to the effect that the plaintiff's working capacity has survived the collision, when properly analysed are subject to qualifications. For example, Dr Harris, the plaintiff's treating orthopaedic surgeon, opined in a report dated 2 July 2008 that since the plaintiff could walk (although not stand for any lengthy periods) she could be expected to be able to perform sedentary office work. Dr Burke, the orthopaedic surgeon relied upon by the first defendant, expressly qualifies his opinion about her work capacity by express reference to her brain injury.

I find that it is not the plaintiff's orthopaedic injuries which prevent her from doing such work: rather it is her mental capacity and the effect of the brain injury on her ability to remember and concentrate.

The first defendant submits that if I find there to be a loss of earning capacity for the future, I should find that the plaintiff would have worked until aged 65. The plaintiff submits that due to the change in pension entitlements, she would have worked to age 67.

The first defendant submits that it would be appropriate to award damages, if at all for the future, on the basis of a cushion of between $50,000 and $60,000, including superannuation.

The first defendant cross-examined the plaintiff to the effect that she enjoyed travelling and would not have worked consistently in any event in the future. However, I accept that the plaintiff had reached a stage of life where she was determined to have a regular and demanding job and take holidays only in so far as they fitted in with her employment.

My impression of the plaintiff is that she has a good work ethic and enjoyed the things that money can buy: a sports car, an overseas holiday, horses and so on. Furthermore her preference for living in Sydney and her relatively modest earnings before the collision, would have, in my view, on the balance of probabilities, resulted in her continuing to work as a medical receptionist. Since she worked in the order of 26 hours a week, I consider that she would have been willing and able, but for the collision, to continue in that employment until the age of 67 and continuing to earn at a rate commensurate with the rate of her earnings immediately prior to the collision.

I am satisfied, as I am required to be by s 13 of the Act, that these assumptions constitute the plaintiff's most likely future circumstances, but for the injuries she sustained in the collision.

Mr Goodridge submitted that there was evidence to support a market income for a medical receptionist of $495 per week, which is calculated by dividing the gross weekly market rate of $786 by 38, multiplying the result by 26 and then applying current tax rates. Mr Newbrun did not accept this calculation and contended, in a document sent to my chambers after the hearing had been concluded that the correct figure was $474, if one worked from the same gross figure used by Mr Goodridge.

Although I accept that the rates for part time work do not necessarily bear a strict mathematical relationship to the rates for full time work, rates for full time work include other benefits that are not included in casual rates and therefore would tend to result in a lower figure if the division is performed on them as I have set out above. This figure, $495, is less than 10% higher than the plaintiff was earning at the time of the accident in 2006. Accordingly, I consider that it is reasonable to assume that the plaintiff's loss for the future ought be measured by reference to $495 per week, irrespective of which party's figure as to the precise net income that arises from the current gross figure is correct, rather than $460 per week, which is the figure I have used for the plaintiff's loss for the past.

Accordingly I award $262,969 for future economic loss due to deprivation of earning capacity, calculated as follows. The multiplier for 18 years at a discount rate of 5% is 625. The net weekly earnings, for the reasons given above, are $495. A discount of 15% for the vicissitudes of life must also be applied.

Loss of future superannuation benefits

I have calculated this head by reference to 11% of the net figure for future economic loss.

Damages for past attendant care services

The plaintiff has particularised her need for care arising from injuries sustained in the collision by reference to various periods, which are set out in the table below.

The first defendant submits that the award for damages for past attendant care services should include no more than 14 hours a week of care for two years or 104 weeks. Mr Newbrun submits that the plaintiff has no ongoing need for care, and has had no such need since she moved to Forster. Contrary to this submission, I accept that the deceased's negligence has created a continuing need for care since the date of the accident and that the need for care will continue for the rest of the plaintiff's life.

The evidence corresponds with the plaintiff's claim for care while she was in Sydney, and accordingly my award of damages on this basis reflects the particulars, except in relation to the period from 12 January 2008 to October 2010. The particulars specified 10 hours a week for this period but the plaintiff gave evidence that she required 2 hours a day. I award the amount sought in the particulars for this period although the plaintiff's evidence could, on one view, have supported a higher figure.

Since the plaintiff moved to Forster in October 2010, her evidence is that she has needed 4 hours a week of assistance. Mr Newbrun cross-examined the plaintiff to the effect that she would not need as much help carrying the shopping upstairs if she lived on a lower level in an apartment block. He also put to her that she could cook, clean and iron for herself, a proposition with which she agreed. I do not regard this cross-examination as undermining in any substantial way the plaintiff's evidence in chief. She has achieved a substantial degree of independence and self-reliance; however, I consider that her remaining disabilities have created a need for care, which has been, since October 2010, of the order of 4 hours a week.

Accordingly I award damages for past gratuitous attendant care services as set out in the following table:

Period

Finding

Award

16 Sep 06 - 10 Nov 06
(the period during which the plaintiff was in hospital)

21 hours a week for 8 weeks @ $27 per hour

$4,536

11 Nov 06 - 10 Jan 07
(the early recovery period after the plaintiff returned home)

56 hours per week for 9 weeks @ $27 per hour

$13,608

11 Jan 07 - 11 Jan 08
(the year after the early recovery period)

35 hours per week for 52 weeks @ $27 per hour

$49,140

12 Jan 08 - 1 Oct 10
(the period before the plaintiff's move to Forster)

10 hours per week for 141 weeks @ $27 per hour

$38,070

2 Oct 10 - 29 Nov 11
(the period from when the plaintiff moved to Forster, to the hearing)

4 hours per week for 60 weeks @ $27 per hour

$6,480

TOTAL

$111,834

Damages for future attendant care services

The plaintiff's evidence was that since she moved to Forster she has prevailed on neighbours to assist her when required, but that she would prefer to pay for care, as long as she is living in Forster, rather than have to impose on people who are not close friends. Even if she returns to Sydney, as is her preference, she no longer wants to impose on friends. I consider her preference to be reasonable and understandable. However, although the higher rate of $35 has been particularised, the plaintiff has not adduced evidence that the cost of the provision of such care will exceed the amount allowable for gratuitous attendant care services under the Act. Accordingly, I propose to make the award on the basis that the plaintiff will be able to procure such attendant care services for $27 per hour.

The plaintiff's case is that she requires 4 hours a week for the future. Mr Goodrich submitted that this figure is necessarily a broad brush figure but covers periods during which she may be incapacitated by reason of future surgery or where she may be affected by arthritis as well as periods when her needs are less, but she still needs help with more strenuous physical tasks and carrying objects of any substantial weight.

I accept that the figure of 4 hours a week is a reasonable average approximation of the plaintiff's needs for the rest of her life. I accept that, in the plaintiff's circumstances, such care will not be provided gratuitously, although she has been able to rely on the charity of friends, well-wishers and Samaritans in the past, since her daughter Rachel left for England approximately a year after the accident. Accordingly I award damages at the rate of $27 per hour for 4 hours a week for the rest of the plaintiff's life, which, according to the table for Medium Life Expectancies, Australia, 2011, is 39 years, which gives rise to a multiplier of 909.9. This amounts to a figure of $98,269.

Out of pocket expenses: past and future

The past out of pocket expenses have been agreed in the sum of $23,616. The plaintiff claims an allowance of $30,000 for future out-of-pocket expenses. The claim is made based, in part, on the possibility of future surgery. The plaintiff gave evidence that she has not had such surgery performed to date because she is not in a financial position to pay for it. The evidence of Dr Deva, which is unchallenged, is that surgery to revise her multiple scars could be done in two stages, at an approximate total cost of $25,000. In these circumstances, I make an award of future out of pocket expenses on the basis claimed by the plaintiff.

Schedule of damages

For the foregoing reasons I award damages as follows:

Head of damages

Amount

Non-economic loss: 50%

$260,000

Past economic loss

$124,660

Past loss of superannuation

$13,713

Interest on past economic loss

Parties to bring in short minutes

Future economic loss

$262,969

Future loss of superannuation

$28,927

Past attendant care services

$111,834

Future attendant care services

$98,269

Out of pocket expenses - past

$23,616

Out of pocket expenses - future

$30,000

Once interest on past economic loss has been agreed, or, in default of agreement, determined by me, I shall enter judgment in the sum calculated.

**********

Decision last updated: 05 December 2011

Medium Neutral Citation:	Nicol v Whiteoak & Anor (No 2) [2011] NSWSC 1486
Hearing dates:	28 and 29 November 2011
Decision date:	05 December 2011
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Judgment for the plaintiff against the first defendant in an amount to be reflected in Short Minutes of Order to be brought in. (2) Judgment for the second defendant against the plaintiff. (3) Judgment for the second defendant/ cross-defendant against the first defendant/ cross claimant on the Amended Fourth Cross-Claim
Catchwords:	TORT - negligence - dangerous recreational activity - whether plaintiff engaged in dangerous recreational activity - contributory negligence- volenti non fit injuria
Legislation Cited:	- Civil Liability Act 2002 (NSW) - s 5F, s 5G, s 5K, s 5L, s 50 - Convention on Limitation of Liability for Maritime Claims 1976 - Evidence Act 1995 (NSW) - s 67, s 177 - Limitation of Liability for Maritime Claims Act 1989 (Cth) - Navigation (Collision) Regulations 1983 (NSW) - - Uniform Civil Procedure Rules 2005 (NSW) - 4.10
Cases Cited:	- Carey v Lake Macquarie City Council [2007] NSWCA 4 - Joslyn v Berryman (2003) 214 CLR 552 - Lormine Pty Ltd and Anor v Xuereb [2006] NSWCA 200 - Williams v GIO [1995] NSWCA 516
Texts Cited:	- Negligence - volenti non fit injuria (1991) 65 ALJ 685
Category:	Principal judgment
Parties:	Linda Nicol (Plaintiff) Scott Whiteoak as executor of Estate of Steven Whiteoak (First Defendant) Mohamed Mogharbel (Second Defendant)
Representation:	Counsel: R.I. Goodridge (Plaintiff) I.M. Newbrun (First Defendant) In person (Second Defendant) Solicitors: Firths (Plaintiff) Chris Lee Lawyer (First Defendant) In person (Second Defendant)
File Number(s):	2009/297817

Therapeutic blood level	Peak 0.01-0.05mg/L	Toxic blood range	n/a
Reported blood fatal range	n/a	Reported liver fatal range	n/a

Period	Finding	Award
16 Sep 06 - 10 Nov 06 (the period during which the plaintiff was in hospital)	21 hours a week for 8 weeks @ $27 per hour	$4,536
11 Nov 06 - 10 Jan 07 (the early recovery period after the plaintiff returned home)	56 hours per week for 9 weeks @ $27 per hour	$13,608
11 Jan 07 - 11 Jan 08 (the year after the early recovery period)	35 hours per week for 52 weeks @ $27 per hour	$49,140
12 Jan 08 - 1 Oct 10 (the period before the plaintiff's move to Forster)	10 hours per week for 141 weeks @ $27 per hour	$38,070
2 Oct 10 - 29 Nov 11 (the period from when the plaintiff moved to Forster, to the hearing)	4 hours per week for 60 weeks @ $27 per hour	$6,480
TOTAL	$111,834

Head of damages	Amount
Non-economic loss: 50%	$260,000
Past economic loss	$124,660
Past loss of superannuation	$13,713
Interest on past economic loss	Parties to bring in short minutes
Future economic loss	$262,969
Future loss of superannuation	$28,927
Past attendant care services	$111,834
Future attendant care services	$98,269
Out of pocket expenses - past	$23,616
Out of pocket expenses - future	$30,000