Raper v Bowden

[2016] TASSC 35

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Raper v Bowden [2016] TASSC 35
PARTIES:	RAPER, Holly (by her mother and litigation guardian RAPER, Elaine)
v
BOWDEN, David BOWDEN, Jocelyn
FILE NO:	959/2014
DELIVERED ON:	15 July 2016
DELIVERED AT:	Hobart
HEARING DATES:	25-29 April, 3, 4 May 2016 (on Commission) 11-13, 16-19, 23-25 May, 3, 6-9 June, 15 July 2016
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Torts – Negligence – Employer and employee – Causation – Quad bike accident – Inference drawn as to defendants' negligence – Inadequate training – Safety helmet not worn – Inoperative rear brakes.

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361, applied.

Aust Dig Torts [36]

Torts – Negligence – Particular cases – Other cases – Whether excessive speed – Safety helmet not worn –

Whether employee in breach of rule or system – Defendants' overarching negligence. Davies v Adelaide Chemical & Fertiliser Company Limited (1946) 74 CLR 541, considered. Aust Dig Torts [66]

Torts – Statutes, regulations, etc – Applicability and effect in actions for negligence – Whether Civil Liability

Act applies.

Civil Liability Act 2002 (Tas), ss 3B(2) and 3B(3).
Workers Rehabilitation and Compensation Act 1988 (Tas).
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas).
Mercer v Allianz Insurance Ltd (No 2) [2013] TASSC 35, considered.
Aust Dig Torts [87]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Method of assessment – Other matters – Whether Todorovic v Waller applies to overseas plaintiff.

Todorovic v Waller [1981] HCA 72; 150 CLR 402, applied.
Aust Dig Damages [37]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Method of assessment – Medical and hospital expenses – Whether catastrophically injured plaintiff residing in United Kingdom obliged to rely on NHS benefits – Whether "double dipping" or failure to mitigate damage.

Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, Diamond v Simpson (No 1) [2003] NSWCA 67,
applied.
Aust Dig Damages [38]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Other matters – Award for pain and suffering – Catastrophically injured plaintiff in minimally conscious state – Whether insight into condition.

Skelton v Collins (1966) 115 CLR 94; Victorian Workcover Authority v Asixa Pty Ltd [2010] VSC 467,
considered.
Aust Dig Damages [38]

Damages - Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Other pecuniary damage – Brain injury – Future lost earning capacity – Life expectancy – Lost years.

Fitch v Hyde-Cates [1980] 2 NSWLR 757, considered.
Aust Dig Damages [47]

Damages - Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Other pecuniary damage – Cost of adapted housing and transport – Offset by costs which plaintiff would have incurred had injury not occurred.

Aust Dig Damages [47]

REPRESENTATION:

Counsel:

Plaintiff: K Read SC and T Cox
Defendants: C Bridge SC and A G Melick SC

Solicitors:

Plaintiff: Slater + Gordon Lawyers
Defendants: Hicksons Lawyers

Judgment Number:	[2016] TASSC 35
Number of paragraphs:	443

Serial No 35/2016 File No 959/2014

HOLLY RAPER (by her mother and litigation guardian ELAINE RAPER v

DAVID BOWDEN and JOCELYN BOWDEN

REASONS FOR JUDGMENT	ESTCOURT J 15 July 2016
Introduction

1             On 30 December 2011 Holly Raper, a 24 year old British backpacker, was employed working on a dairy farm on King Island owned and operated by David and Jocelyn Bowden. At around 10am on that day Ms Raper was found on the ground in a paddock on the farm, immediately adjacent to an all-terrain vehicle known as a quad bike which she had been riding, and in close proximity to a drain traversing the paddock.
2             Ms Raper suffered serious head and facial injuries as a result of her obvious fall from the quad bike and she was flown to the Royal Hobart Hospital. She was later flown to the Royal Preston Hospital in Lancashire, England, where she remained until she was discharged to her home in nearby Chorley on 4 April 2013.
3             Since her accident Ms Raper has been in either a vegetative state (an absence of self- awareness and the environment) or, more recently, a minimally conscious state (inconsistent but meaningful interaction with the environment). She can move her head but she does not have functional movement in any of her limbs. She is confined to her bed or a wheelchair. She requires 24 hours a day attendant care. She is unable to communicate except perhaps with her eyes. She has a permanent tracheostomy in place and is fed through a tube directly into her stomach. She is doubly incontinent. The nature and extent of her vision is unclear.
4             As will be seen, the evidence suggests that Ms Raper is perhaps capable of understanding a basic command, of distinguishing between colour and of controlling her eye tracking movements to make choices, however she has not demonstrated a consistent blink response, and without a reliable communication system it is unclear as to the extent to which she is aware of her plight. She has not as yet had sufficient treatment intervention to give her the potential to show the full extent of her ability to communicate. Whether or not her tracheostomy can ever be removed is problematic.

Overview as to liability

5             Despite the fact that Ms Raper was not properly trained to ride the quad bike she was riding in the course of her employment, as opposed to being shown how it worked, and despite the fact that she was permitted to ride it without wearing a safety helmet, the defendants' position is that they are not liable for damages for negligence or for breach of statutory duty.
6             The defendants contend that it is just not known how Ms Raper came to be separated from the bike, and that if she cannot prove how the accident happened then it follows that she is not able to prove that a lack of training or any other alleged breach of duty was causally related to it. In his opening address lead counsel for the defendants, Mr Bridge SC, said, "she may have just been driving too fast, we don't know". The defendants also contend that the plaintiff has not proven on the balance of probabilities that her failure to wear a helmet would have prevented the injuries she suffered.
7             Other theories as to how Ms Raper might have suffered her injuries were advanced on behalf of the defendants during the course of the evidence, including that she was kicked by a cow or that she
2   No 35/2016

fainted while riding, or that she was injured elsewhere in unknown circumstances and rode to where
she was found and fell off the bike.
8 For the reasons that follow I find that the defendants are liable to pay damages to Ms Raper for their negligence and breach of statutory duty.

The circumstances surrounding the accident

9            I adopt as accurate the following description of the circumstances surrounding Ms Raper's accident taken from the defendants' written closing submissions with appropriate editing.
10          On the morning of 30 December 2011 Ms Raper was asked by Jason Haines, the defendants' dairy manager, to move a herd involving six bulls down a lane at the farm. Ms Raper used a 2007 Honda Foreman TRX500FA all-terrain vehicle (colloquially known as a "quad bike") for that task. She was observed by Mr Haines to walk to the bike, reverse the bike, turn around and begin slowly and quietly following the bulls down the lane. Her next task was to go to Paddock 8 to collect the herd in that paddock and to escort the herd to Paddock 24. The cows knew the routine as they are all moved three times a day and would walk towards the gate. About five to 10 minutes later Mr Haines saw Ms Raper in the dairy speaking to a fellow employee John Gatundu. She then left again.
11           Some short time after 10am Mr Haines observed that the cows in Paddock 8 had not moved. He saw the quad bike Ms Raper had been riding sitting in the middle of the paddock. When he went to investigate he saw her lying beside the quad bike. No witness gave evidence of observing Ms Raper between the time she was seen by Mr Haines talking to John Gatundu and when Mr Haines saw her lying beside the quad bike.
12           The motor was still running, the quad bike was upright and it was pointing in a north-easterly direction. Ms Raper was lying on her back with her left arm slightly tucked under her back. Her left leg was bent at the knee and crossed over her right leg, such that her hips were turned facing west. Her head was also turned to the right and her right arm was bent at the elbow pointing down towards her right knee. Her head was level with the front of the back tyre of the bike which was close enough for Mr Haines to lean on the foot peg of the bike to lean over her. When found, Ms Raper, who was not wearing a helmet, had obviously sustained a severe head injury.
13           Constable Paul Hunt of Tasmania Police gave evidence that he received an emergency call by radio at 10.13am. He arrived between 10.25am and 10.30am. Constable Michael Lincoln of Tasmanian Police arrived approximately 10 minutes later. An officer of Workplace Standards Tasmania, Mr Lawrence Yovich, was involved in an investigation into the accident but that investigation did not commence until 3 January 2012.
14           The police officers took a number of photographs purporting to show skid marks, physical evidence of the condition of the quad bike, and other marks which the plaintiff alleges provide evidence of the path and movements of the quad bike prior to the accident.
15   I now return to my own narrative.
16           On 17 February 2012 a sketch plan of the accident scene was drawn by Constable Hunt based on his observations of the scene on the day of the accident. A copy of that plan is attached to these reasons.
17           Of significance to the issue of how the accident occurred, the plan shows what Constable Hunt took to be the tyre marks left by the quad bike commencing after the drain depicted, and with the left-hand mark ending 3.5 metres from the bike, and the right-hand mark ending very noticeably before the left. He accepted in cross-examination that the distance shown was his memory of the
3   No 35/2016

distance he paced out on the day of the accident and that the 3.5 metres could be 10 or 20 centimetres on either side of that figure. Constable Hunt also accepted that the width of the drain he marked on the plan as one metre could have been between 800 centimetres, and 120 centimetres, and the depth he marked as 40 centimetres could have been shallower than that.

Does the Civil Liability Act 2002 apply?

18           Ms Raper was employed by the defendants and as such her claim for damages falls into a long established and well recognised category of cases where it is beyond doubt the she was owed a duty of care both at common law and pursuant to statute. However, before turning to a consideration of the questions of breach of duty and causation of damage the defendants have raised an anterior question as to the applicable principles.
19          The defendants contend that the Civil Liability Act applies to the claim for damages brought on behalf of Ms Raper. The defendants made the following written submissions:
"CIVIL LIABILITY ACT 2002

2.61 Section 3B(2) [sic] of the Civil Liability Act 2002 (Tas) ('CLA') provides:
'This Act, except Parts 2, 3, 5 and 5A, Divisions 1, 2, 3, 4 and 7 of Part 6 and Parts 7 and 8, does not apply to or in respect of civil liability relating to an injury to which Part III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies.'

2.62 Section 3B(3) of the CLA provides:
'This Act does not apply to civil liability relating to an injury to which Division 2 of
Part X of the Workers Rehabilitation and Compensation Act 1988 applies.'
2.63 The Plaintiff's injury is one 'to which Part III of MAA' applies. Sections 14, 21 and 22 have application in this matter.
2.64 Therefore section 3B(2) of the CLA is enlivened, which then gives rise to conflict with section 3B(3) of the CLA because the Plaintiff's injury is also one to which Division 2 of Part X of Workers Rehabilitation and Compensation Act 1988 (Tas) ('WRCA') also applies. Section 3B(3) says that the CLA does not apply to the Defendants' liability to the accident at all.

2.65 The Court must determine how those provisions sit together.
2.66 The Defendants contend that such parts of the CLA as are expressly referred to in section 3(B)2 are intended to apply to motor accidents regardless of whether the person suffering injury was in the course of their employment. On the statutory construction principle of generalia specialibus non derogant (ie the general matters do not derogate from the specific matters), motor vehicle accidents in the course of employment are to be dealt with as a motor vehicle accident.
2.67 It is the Defendants' contention that it was the clear intention of Parliament that motor accidents should be dealt with under the MAA and consequently the specific provisions of the CLA applied by section 3B(2). Otherwise it would be anomalous where two people in the same car accident were to be dealt with under different laws and giving rise to different rights merely because one happened to be in the course of their employment at the time of the accident, and the other not. That is particularly so where section 97(3) of the Workers Rehabilitation and Compensation Act 1988 ('WCC') provides that the workers compensation policy is not required to extend indemnity to any liability arising during a journey in a motor vehicle defined in that section, so that the liability must arguably fall to the Board.
2.68 Furthermore, the Defendants contend section 3B(3) cannot be given a meaning that excludes the operation of the CLA to all injuries to which Part X of the
4   No 35/2016

WCC applies. If the CLA had no part to play, then section 49B would not provide protection to employees in any case where an employer was sued by another employee."

20 I do not accept the defendants' submissions. In my view the argument is misconceived. Section 3B(3) of the Civil Liability Act unambiguously excludes the operation of that Act to "civil liability relating to an injury" to which Div 2 of Pt X of the Workers Rehabilitation and Compensation Act 1988 applies. So much was assumed by Blow CJ in Mercer v Allianz Insurance Ltd (No 2) [2013] TASSC 35 at [68]. That Division of the Workers Rehabilitation and Compensation Act, by s 138AA, applies to civil liability relating to an injury, namely the awarding of damages against an employer independently of that Act in respect of an injury suffered by a "worker" where the injury was caused by the negligence or other tort of, or a breach of contract, or statutory duty by an "employer" and compensation has been paid in respect of the injury under that Act. Those provisions of s 138AA clearly embrace the claim brought on behalf of Ms Raper in this action and compensation under the Act has been paid to her in respect of her injury.
21           The defendants' contention that the claim brought on Ms Raper's behalf is in respect of civil liability relating to an injury to which Pt III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies, with the consequence that the Parts and Divisions of the Civil Liability Act applied by s 3B(2) of that latter Act are engaged, is not correct.
22           The defendants rely for their contention on the proposition that Ms Raper's injury is one to which Pt III of the Motor Accidents (Liabilities and Compensation) Act applies. However, s 14(3)(a) of that Act has the effect that the Motor Accidents Insurance Board, created by that Act, is not bound to indemnify an owner or user of a motor vehicle in respect of any liability incurred in respect of personal injury resulting from a motor accident where the Workers Rehabilitation and Compensation Act required the owner or user of the motor vehicle to maintain a policy of insurance under s 97 of that Act.
23 Section 97 of the Workers Rehabilitation and Compensation Act provides that an employer who is not a self-insurer shall maintain a policy of insurance in force with a licensed insurer, which policy indemnifies the employer in respect of any liability arising independently of that Act in respect of injury suffered by a worker arising out of and in the course of the employment of that worker by the employer.
24           The defendants were obliged to maintain such a policy of insurance, and thus the Motor Accidents Insurance Board was not bound to indemnify them in respect of Ms Raper's injury and thus there is no liability in the defendants which can be said to be a "civil liability relating to an injury to which Pt III of the Motor Accidents (Liabilities and Compensation) Act applies". Section 3B(2) of the Civil Liability Act is not engaged, and thus that Act can have no application with respect to the present action.
25           Were there any ambiguity requiring recourse to the second reading speech for the Civil Liability Amendment Bill No 46 of 2003, that speech includes the clear statement by the then Minister for Justice and Industrial Relations that "The bill also does not apply to our statutory compensation schemes nor to civil liability arising under the Workers Rehabilitation and Compensation Act 1988". There is no ambiguity, in my view, and there is no conflict between ss 3B(2) and 3B(3) of the Civil Liability Act.
26 The defendants also contend that s 3B(3) cannot be given a meaning that excludes the operation of the Civil Liability Act to all injuries to which Pt X of the Workers Rehabilitation and Compensation Act applies because if the Civil Liability Act "had no part to play" then s 49B of that Act would not be needed to "provide protection to employees in any case where an employer was sued by another employee". The second reading speech for the Justices and Related Legislation
5   No 35/2016

(Miscellaneous Amendments) Bill 2012 which inserted s 49B into The Civil Liability Act makes it clear however that the provision was inserted purely to abrogate the principle in Lister v Romford Ice and Cold Storage (1957) 2 WLR 158.
27 It follows that the provisions of the Civil Liability Act have no application in the present case, and in deciding whether there has been a breach by the defendants of their duty of care to Ms Raper I will have regard to the well known passage from the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47.
28 The question of causation in the context of legal responsibility falls to be decided in accordance with March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506, namely as a question of fact which must be determined by applying common sense to the facts of the case, but remembering that the "but for test" applied as a negative criterion of causation has an important role to play in the resolution of the question.

Breach of duty in negligence

29 In Wyong Shire Council v Shirt (above) Mason J said at 47-48 [14]:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

30           As appears now to be common practice in pleading actions for damages brought by employees against their employers, the statement of claim in the present action does not plead the content of the duty owed by the defendants to Ms Raper. It nonetheless does no harm to recall that the employer's traditional obligation to employees has been threefold. The employer must use reasonable care in the selection of competent fellow employees, must have and keep machinery, the use of which might otherwise be dangerous, in proper condition and free from defect and must provide a proper system of working. To this one may I think properly add a fourth obligation, namely to observe relevant statutory requirements. I will say no more about that at the present as the statement of claim in this case does plead a separate cause of action based on alleged breaches by the defendants of the requirements of the Workplace Health and Safety Act 1995 and the Workplace Health and Safety Regulations 1998.
31           The plaintiff in her written closing submissions relied on four asserted breaches of the defendants' duty of care in negligence. They were that the rear brakes of the quad bike were inoperative, that the right rear tyre was only partially inflated, that Ms Raper had not been provided with adequate training and instruction to allow her to ride the quad bike safely, and that she was allowed to ride without being required to wear a safety helmet.
32           Dealing with the question of breach it cannot be said, in my view, that reasonable persons in the defendants' position would not have foreseen that each of the four breaches asserted on behalf of the plaintiff involved a risk of injury to Ms Raper. It was not suggested otherwise on the defendants' behalf.
6   No 35/2016

33           The evidence clearly establishes, and it is common ground between the parties that the rear brakes of the quad bike were inoperative, that the right rear tyre was only partially inflated and that Ms Raper was allowed to ride without being required to wear a helmet.
34           It is not accepted by the defendants that Ms Raper had not been provided with adequate training and instruction to allow her to ride the quad bike safely, however I am satisfied that she had not been so provided.
35           Mr William Keramidas, an expert witness called by the defendants in the field of traffic and transport engineering, gave evidence in his cross-examination that the inherent instability of quad bikes and what he assumed to be rider inexperience on Ms Raper's part were causal factors in her loss of control of the bike along with the terrain, and what he regarded as the primary factor of the speed of the bike and, to a lesser extent, the ineffective rear brakes on the bike.
36           Mr Keramidas was referred in cross-examination to a report tendered in evidence entitled Final Project Summary: Quad Bike Performance Project Test Results. He was asked about Recommendation 1 on page 13 of that report which states:
"Require all quad bike riders and SSV drivers in the workplace or otherwise to receive vehicle specific basic training and instruction by a specialist accredited in instructors [sic]."

He said that he agreed with that recommendation:
"Because the greater the training in any type of device, including this rather unique one in the form of a quad bike, the more likely an operator would be to be able to appropriate [sic] control the device in any number of circumstances."

37 He was asked why he regarded a quad bike as unique. His answer was:
"Well a quad bike by its pure composition is actually made up of a number of different elements from – drawn from different types of vehicles, the high side wall tyres are – are more akin to a tractor's tyres in terms of compliance; the steering mechanism is more akin to a motorcycle; the high centre of mass, again, is probably more akin to – to a motorcycle in its configuration. It's automatic in its operation in terms of throttle control. So it's quite – it's a blend of different vehicles to create this utility composition."

38 Mr Brendan Thompson, a former national all-terrain vehicle training manager and instructor for Stay Upright Motorcycle Techniques gave evidence as to the content of a typical quad bike training course. It is necessary to set out a lengthy part of his evidence in order to gain an understanding of what is taught as basic training to quad bike riders. Mr Thompson gave the following evidence:
"Well what does the outline of your course contain?.....Well the basic structure of the day, so the first session in the classroom, then the practical sessions that happen in the morning, how the assessments are done because at the end of the course the successful participants receive a qualification.
…
MR COX: (Resuming): What follows the classroom session?……Then we move to the first practical session using the quad bikes, and these are static sessions in the first part of the course where we look at the machines and check that they are mechanically safe for operation and the trainees are shown how to do that using the five step T-CLOCK system, T-CLOCK is an acronym which helps them remember what things to check, and then they physically check their machines before they use them in the course to make sure that they are safe, and they're asked to identify and report any deficiencies that they find before –
7 No 35/2016

HIS HONOUR: And I'm assuming that the attendees at the course bring their own quad bikes, you don't supply bikes, it's a practical lesson for them.
WITNESS: On King Island – your Honour, on King Island we didn't supply bikes.
They were the participants' own machines.
MR COX: (Resuming): Okay. T-CLOCK, can you explain that acronym?……T- CLOCK is a five-step system to check the mechanical safety of the machine. T means that you check the tyres for tread, condition, air pressure. C is that you conduct a check of the controls, that they all function, brakes, ignition, that sort of thing. L is lights and electrics, that they are functional for the reason that they need to be able to see where they're going if it's not sufficient light, and others need to see them. O is to check the oil and the fluids, engine oil, brake fluid, coolant. Brake fluid on most quad bikes now is an important part because they're hydraulic, and C is to check the chassis, that all of the nuts and bolts on the machine are tight, there are none missing, so it's a comprehensive five step check, and the work T-CLOCK is just an acronym to help people remember, because at the end of the course they have to write down that it means.
Right. And after you teach them about T-CLOCK they then carry out their inspection?……They do.
And what happens after that?……They report any faults, if there are no faults reported then the machines are considered safe to use.
Okay, and what follows after that?……Then – then we have a session on identifying the controls of the quad bikes and where they're located on the machines. The aim being there to make sure that they understand where the brakes and so on are, so they can readily use them, and then they have the opportunity to sit on the quad bike and identify those controls physically and that's – that's that session about controls.
Okay. And the next session is – is that a session about personal protective equipment?……That's done in the classroom, the discussion is there about that, and everybody has to present with the – the correct PPE before they are allowed to go to the practical sessions.
Okay. So -……Yeah.
- if we come back then to PPE -……Yeah.
- what do you teach about personal protective equipment?……Well if we start from the top of the body and work down and that's the system we use to make it simple; a helmet that meets the Australian Standard 1698, a helmet is to protect your head from the first impact if there is a crash, also to help keep you conscious, because if a person is unconscious there's a possibility they could bleed to death or something like that. Eye protection, visa, goggles or safety glasses; full skin cover, so that there's no exposed bare skin; trousers and boots that – or footwear that cover the whole of the foot and in a rural situation gumboots are acceptable as footwear.
Okay. So you go through the PPE and you go through the T-CLOCK then what happens?……Then we go to riding posture, how to get on and off the quad bike, and we teach the trainees that they should always get on and off the quad bike on the highest side of it, so that they don't risk tipping it over if they mount it from the low side. We talk to them about using their body, head an eyes up so they've got good visibility, see as much as they can as early as they can, and we talk about how to turn a quad bike, and there are three steps that we teach the students. We teach them to look where they want to go, lean their body in that direction, and then turn the handlebars of the quad bike in that direction. The use of bodyweight is a critical factor that we emphasise really strongly.
And what do you – what do you say to emphasise it, what sort of things do you - ……Well in terms of – if you're sitting on top of a quad bike and you suddenly turn to the left or right, your body will be thrown in the opposite direction to the turn. You
8 No 35/2016

need to move your body into the position that – in the direction you're going to turn before you turn the handlebars to help balance the machine or you risk tipping it over.
And what about speed, what do you tell them about speed?.....Speed appropriate to the conditions and particularly related to visibility. If you're in grass or anything that restricts your vision you must slow down, you must slow down.
And do you also teach them about obstacles?.....We do. That comes at a later stage in the course.
Have I skipped something, what comes before?.....You skipped quite a few.
All right, well you tell me what I've skipped?.....So that I can make sure that I give you the right information may I read my card that I use every time that I conduct a course, is that …
MR COX (Resuming): Please do it……I'll read it to you, then I'm not going to make any mistakes. So mount and dismount and posture, then we do start and stop engines. In other words we have a system for starting and stopping the machines so that there is no risk that the machine will be started without the fuel turned on, or perhaps the emergency stop switch off and the machine won't go, so we go through that and make sure every trainee can start and stop the machine they're riding. Then we – then we move into moving off from stationary, how to stop, how to reverse and how to do a gear change. Then we move into the mobile exercises with a low speed turning techniques exercise around a series of cones, and I have a card for that as well which I would've had in my pocket to set up a range of cones, a rectangular range with circles in the middle. Then we talk about the mental skills that need to accompany the practical skills of actual machine operation and they are focused around an acronym called OAR or oar, and those three letters stand for observation, anticipation of risk and response rather than a reaction, and we emphasise that there's a distinct difference between a reaction and a response. If you've given yourself time to see things you've given yourself time to think and then you can respond rather than just an instinctive spur of the second reaction which might cause a problem. We talk about some of the workplace issues around quad bikes, such as do you need to follow the route map before you leave the base – the importance of making sure that somebody knows where you are and when you're due to return so that if you have a problem someone will come and look for you. And we also say, if you find yourself in situations that are difficult, it is okay to say 'no, I can't do that' rather than take the risk and have a result that's – could cause an injury. So that's – that's a section on its own. Then we get into quicker turns, which we increase the speed slightly, and at each of these stages the trainees have to demonstrate that they are capable of carrying out the control techniques for the machine to the required standard to the instructor; in other words they have to be able to do the exercise to move to the next one, if they can't complete an exercise they can't move any further in the course. Then it's lunchbreak for thirty minutes. Then we get into sharp turns, control techniques, if you have to turn the quad bike in a confined space. Then we get into the braking exercises, quick stops and swerves, if you can't stop in the distance that you've got between the machine and an obstacle is swerving an option, how do you do that, demonstration, explanation, students' practice and assessment – that's the same system we use all the way through. Then we do quick stops in a turn. So, if you're partway through a turn and you have to stop with the handlebars turned, the techniques to do that are demonstrated, explained, and the students practice, that's – that is the highest level exercise in the course in terms of speed, and it gives the students an option to control the machine if it starts to tip while they're trying to stop in a turn. Again, practical demonstration, they practice and are assessed. Then we come to the riding over obstacles module and then we do reversing through obstacles, which is, if you have to negotiate in reverse with the machine –
Can I just stop you for a second, Mr Thompson, could I just take you back to riding over obstacles, that module? How long does that take?……Twenty minutes.
Okay, if you could take through in detail what happens over that twenty minutes?……We talk about the kind of obstacles that quad bike riders are likely to be
9 No 35/2016

confronted with, whether it's an obstacle that you ride over, an obstacle that you ride through, and again, we talk about what risks are there and ask the students to identify – then we talk about how you handle the machine once you identify an obstacle, what you do mentally first, then the techniques for riding over the obstacle if you have decided that you can actually do it –
Okay……- and your machine has the ability to do it as well as you.
And just coming back a second, the mental techniques, is that the OAR?.....That's the
OAR, yes.
And that's the observation, anticipation and response?.....That's right, to look – see the obstacle firstly, to think what risk is there for me if I ride over this, or through it, or whatever, and am I capable of doing it, does my machine have the ability to do it and how to assess the abilities of the machine, four wheel drive, two wheel drive, am I loaded, is it on a slope and so on. And then again if the answer is no, I can't do it, the students are trained to find another route or just go away completely. If they have decided that they can do it then the skills of handling the machine over an obstacle come into play, which we train them to do and get them to demonstrate over a log and those techniques are very, very important. So reducing speed to walking pace is what we would teach them to do, to approach the obstacle at ninety degrees, to stand up on the quad bike so that their weight transfers from the seat to the foot plates and makes the machine more stable, also gives them better visibility, and their throttle control technique as they go over the obstacle. It's demonstrated to them how that works, they practise it and establish their competency by assessment.
And you mentioned a log, that's the obstacle, is it, that you use?.....That's what we use, yes, which would be - in our case we use a treated post, a round post which would be a couple of metres long and we use that as an obstacle to ride over.
Okay, you mentioned a couple of things in – yeah, the diameter of the log?.....Six to eight inches.
Okay. You mentioned a couple of things in negotiating it, you mentioned approaching it at ninety degrees?.....Yes.
Why is that?.....Well you want to –
MR BRIDGE SC: I assume, your Honour, that the answer's going to be given as what's told at the course, -
MR COX: Yes.
HIS HONOUR: Why do you teach them that?
WITNESS: Why do we teach that, because we want both front wheels to cross the obstacle together, followed by both rear wheels together, rather than a lesser angle than ninety where you'll get one wheel go over, trying to get another one, so there are four separate wheel actions to go over the obstacle, which can lead to a machine becoming stuck. The travel in the suspension of a quad bike is quite limited so they're difficult – have difficulty dealing with that twist, but –
HIS HONOUR: Well what do you teach them?
WITNESS: We teach them to approach at ninety degrees.
MR COX: (Resuming) All right. And what – you said as well that, teach them to stand up?……Yes.
Why, and what do you say to them?
HIS HONOUR: What do you – what do you say to them as to why?
10 No 35/2016

MR COX: (Resuming): What do you say to them?……As to why?
As to why?……Because it makes the machine more stable when you transfer your weight from the seat which is at least – at least 300 millimetres higher than the foot plates. It lowers the centre of gravity of the machine as well as give you better vision because your head is up higher.
And the throttle, what do you say to them about the use of the throttle?……We say as you – just as your front wheels touch the obstacle a small burst of throttle will help to lift the tyres over the – over the (indistinct word) the quad bikes have soft tyres and operate at low pressure, and there's a little bit of rebound and the machine will just climb over much more easily. Now, that's the basis of the steps to dealing with an obstacle in a practical sense.
Okay?……90 degrees stand up walking pace and a little bit of throttle if you're climbing over an obstacle.
And you mentioned a demonstration, do you do the demonstration?……Yes, yes.
And you ask them to - ?……Are there any questions.
Yes?……Is everyone happy to do this exercise.
And then they do it or not?……Yes.
Yep. And you assess them?……And we assess them.
And if they meet the competency they move on?……They move on.
And what's next then?……Then we have a session on reversing through obstacles so we have a slalom of cones using the rectangle that we setup at the beginning of the day, and they reverse through them without hitting the cone. That's the competency we want from them there, and controlling the machine at the same time. Then there's a break for five minutes. That negotiating – oh sorry, reversing obstacles then negotiating hilly terrain is the last practical exercise.
Right, and what do you do in that exercise?……Well, again, we identify that there are risks associated with operating on hilly terrain and then we talk about how we approach, how we control the machine, how we maintain stability. We do demonstrations of up, down, across, and then the students practice.
What do you tell them about the risks of hilly terrain?……Well, they need to make sure that they've got a machine that has sufficient power, they need to assess the angle of the slope they want to climb or deal with. They need to make sure that if they're crossing - the machine – the hill that they – got their bodyweight on the top side of the machine so it doesn't tip. We also start to introduce then the effect of having any load on the machine, other equipment mounted on the carry racks or whether or not they're towing a trailer, because either or both of those could have an effect on the stability of the machine. We do the demonstrations, ask for any questions, and then we tell the students what we would like them to do, and we start out quite mildly, if I can put it that way, and again, they're assessed for competency on how they handle the machine.

And braking, what do you tell them about braking?……In a straight line it's throttle off, sit up and squeeze is a technique we use for the – for the operation of the brake lever, whether it's on the right hand side of the machine or the left, and they will know that well and truly by then. The reason that we break the use of the front lever down into two stages, we don't want the students or the operators to grab that lever and lock the wheels, we want a gradual introduction so that the suspension has time to compress, the front tyres squash out and grip the ground using that weight forward that happens when you start to brake rather than a quick grab of the lever, which could result in a wheel lockup and a loss of steering and control. Then we introduce the use of the rear brake.
11 No 35/2016

Okay, and what do you say to them about the use of the rear brake?……Same – same technique, you just use your foot in the case where the machine has a rear brake pedal, and don't stamp on it, introduce it progressively so that you don't lock the rear wheels.
And is, what you say about braking applicable for your module in negotiating obstacles?……I'm not sure what you mean there?
Well do you tell them about how to use the brake so as to help them in negotiating obstacles?……They – they know how to use the brakes and to slow to that walking pace that they need to be before they cross an obstacle they would use their brakes necessary to slow down and they know how to do that, they've demonstrated that they can.
Now I think I interrupted you and you'd got through the module on reversing through obstacles, what – what happens after that?……Negotiating hilly terrain.
That's right, and sorry, after the negotiating hilly terrain?……Then we have a session in the classroom, that's the final session of the day, the first part of that session is about making sure that they are familiar with how to – how to assess what the carrying capabilities of their quad is, so that they know where to look for the stickers and information that tells them what the machine – its maximum carrying capacity is. How to identify what its maximum towing capacity is, we – we have a discussion about loading them and unloading them from transport vehicles. How to – how to use ramps and things like that so that there's not a risk a them actually injuring themselves if they transport the machines around from place to place, which is quite a common practice. Then we have a discussion about the environmental issues that quad bikes – related to quad bikes, like damage to – to the soil, to the ground, fuel spills, those sort of things that are not practical exercises but they need to know that these machines are capable of damage, unnecessary damage to the environment if they're used improperly. Then we have a final session where the students complete a written questionnaire and they're asked to identify the acronyms, the T-CLOCK, the OAR, and so on, so that we – they confirm in writing that they've taken that knowledge away with them … ."

39 As against that detailed course of instruction the following evidence of Ms Raper's training was given by the defendants' daughter-in-law Ms Andrea Bowden:
"Thank you, your Honour. (Resuming) Now, did you observe Holly and Anastasia do sometime later they had graduated to where they were leaving on two bikes. So, I know that Holly was getting trained by Anastasia, and I saw her getting walked through all the switches and stuff from Anastasia. And then I saw them drive away.
anything in relation to quad bikes?.........Yes. So, I saw Holly and Anastasia start
training by the fuel – not tank, but it's – it's where you filled up. So, the bikes were
parked just beside that. Anastasia backed it out, and she was starting to show Holly,
you know, all of the on/off and everything. And I saw this from the office window.
In the time that Holly was there, before her accident, did you ever have any conversation with her about quad bikes or riding quad bikes?.........No.
Did she ever say anything to you about how she felt about riding a quad bike?.........No.
All right. Did you observe her riding a quad bike - ?.........Yes.
After – after the time you'd seen - ?.........Yeah.
Her and Anastasia riding bikes side by side?.........Ah, over the next several weeks, yeah."
12 No 35/2016

40           It is plain that the instruction Ms Raper was given by Anastasia constituted on any view of it, little more than the most basic instruction on the machine's operation and use. It cannot, in my view, be said to amount to proper training in how to ride what Mr Keramidas described as a unique and inherently unstable machine. That the training Ms Raper was given was inadequate is clear from a consideration of the detailed content of the courses instructed by Mr Thompson.
41           The defendants submit that the plaintiff has not proved that "the actual training that [Ms Raper] was provided at the farm was inadequate". I disagree. Even if Anastasia, whose own level of training is unknown, continued to observe Ms Raper for a period of time as they rode together and judged her competent, that would not, in the face of Mr Keramidas' and Mr Thompson's evidence, establish that Ms Raper was given proper and adequate training.
42           The defendants submit that it should be inferred from the plaintiff's failure to call Anastasia that her evidence would not have assisted the plaintiff. The same might be said of the defendants' failure to call her. Her availability as a witness was not in doubt as Ms Bowden gave evidence that Anastasia was happily married, indeed "joined at the hip" to John Gatundu who was also a farmhand on the defendants' dairy farm at the time of Ms Raper's accident, and who was called by the plaintiff.
43          It follows that I am satisfied that the defendants were in breach of their duty to Ms Raper to provide her with proper instruction and training in the use of the quad bike.
44           Returning to the Shirt calculus and turning to the question of a reasonable person's response to the foreseeable risks of injury arising from the defendants' four identified breaches of duty to Ms Raper, the magnitude of the risk was high, involving as it did the potential for Ms Raper to lose control of the quad bike, fall from it and thereby suffer bodily injury. The degree of the probability of the occurrence of the risk was also high, in my view, as three of the four breaches of duty had the potential to cause or contribute to a loss of control of the bike, and it was quite probable that the fourth, involving the failure to wear a helmet, could result in avoidable head injury.
45           The expense, difficulty and inconvenience of taking alleviating action could not have been prohibitive in the case of the inoperative rear brakes and the partially deflated rear tyre. They involved nothing more than mere routine maintenance of essential farm machinery. In the case of a requirement to wear a helmet, there could have been no cost or difficulty or inconvenience as helmets were available for the use of employees. As to the expense, difficulty and inconvenience of providing adequate training and instruction in the riding of the quad bike the evidence was that the full cost of a suitable course of recognised instruction was in the order of $330. Courses subsidised by Worksafe Tasmania had been run on King Island on 6 and 7 October 2011 by Mr Thompson's organisation at a cost of $165. Arguably the defendants could have responded to the risk to Ms Raper, or employees in her position, merely by the defendants or either of them, or one of their permanent farmhands, taking one of those courses so as to be able to at least pass on the general nature of that detailed instruction and training to others.
46           There were no identified conflicting responsibilities which the defendants may have had which might have militated against them taking steps in each case to respond to the relevant risk. The defendants were, in my view, in breach of their duty of care to Ms Raper in each of the four identified respects.

Breach of statutory duty

47	The following written submissions were made on behalf of the plaintiff: "*Statutory duty* The primary duty comes from s 9(1) of the Workplace Health & Safety Act 1995.

13 No 35/2016

(1) An employer must, in respect of each employee employed by the employer, to ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must –

(a) provide and maintain so far as is reasonably practicable –

(i) a safe working environment; and
(ii) safe systems of work; and
(iii) plant and substances in a safe condition; and

(b)

provide facilities of a prescribed kind for the welfare of employees at any workplace that is under the control or management of the employer; and

(c)

provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.
Holly was an employee and she was at work when injured.
The word 'ensure' was considered by Porter J in Langmaid v Dobsons Vegetable Machinery Pty Ltd. His Honour, with whom Pearce J agreed, rejected the proposition that reasonable actions sufficed to satisfy an obligation to ensure [57]. He said that the standard of compliance is higher than what is reasonable in the circumstances [59]. At [58] His Honour said
In the context of health and safety legislation, the word 'ensure' has been given its ordinary meaning of 'to make sure or certain' or 'to warrant or guarantee.'
Rule 85 of the Workplace Health and Safety Regulations 1998 is also pleaded.
Again, the standard is that the defendants 'ensure' compliance.
We do not pursue the r58 plea.
Breach
s9 has been breached in the following ways

• Failed to provide (iii) plant in a safe condition – the quad bike was not in a safe condition both because of its rear brakes, the deflated right rear tyre and also due to the poor lateral stability of the bike .
• Failed to provide (c) any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.
We rely on the submissions made as to breach in the negligence part of these submissions."

48   The defendants did not respond directly to those submissions.
49 As can be seen the plaintiff makes no mention in those submissions of the defendants' failure to ensure that Ms Raper wore a helmet when riding the quad bike. It is clear however, from the general tenor of earlier submissions made in the plaintiff's closing address, that she does assert such a breach as a breach of statutory duty, as she relies on the implied admission in that regard constituted by the plea of guilty by Mr Bowden to a charge arising out of Ms Raper's accident brought against him by complaint for a breach of s 9(1) of the Workplace Health and Safety Act.
50           For the reasons I have already given I regard the defendants as having been in breach of their common law duty to Ms Raper as her employers in the four respects identified. Those same reasons apply, in my view, to the alleged statutory breaches of duty with the same result.
14   No 35/2016

51           I should however say something about the plaintiff's reliance on Mr Bowden's plea of guilty to the complaint referred to above which was brought against him by the manager of Workplace Standards Tasmania.
52           As I apprehend it, the plaintiff relies on that plea of guilty as constituting an admission by Mr Bowden as to his breach of duty in each of the four respects identified by the plaintiff. I do not accept that any implied admission is as broad as that.
53           The charge itself encompassed the elements of an unsafe system of work, unsafe plant and a failure to provide instruction, training and supervision. The charge was particularised with eight separate failures being alleged, however the complaint was amended at the hearing in the Magistrates Court by the deletion of all but two of the particulars. The two that remained relevantly involved only two of the breaches of duty relied upon by the plaintiff. They were the failure to ensure that Ms Raper was wearing a motor bike helmet and the failure to provide a quad bike that had operating rear brakes. I am only prepared to infer that by his plea of guilty to the complaint as amended, Mr Bowden admitted that he was in breach of duty in those two remaining respects.

Causation

54           The evidence of the farm manager, Mr John Haines, set out earlier in these reasons and photographs of the scene taken by Constable Michael Lincoln respectively recounting and depicting what was to be observed after Ms Raper was separated from the quad bike, and the sketch plan drawn by Constable Hunt, satisfy me on the balance of probabilities that Ms Raper lost control of the bike after encountering a drain in the paddock, and that she thereupon suffered her injuries as a result of impacting the bike and/or the ground, or both. There is a significant question as to whether the quad bike rolled over as there is little physical evidence of this on the ground or on the bike. To my mind however it does not matter whether the bike rolled over or not. The question is whether it can be said, adopting a common sense test for causation, that on the balance of probabilities Ms Raper's injuries were caused by one or more of the four identified breaches of the defendants' duty to her as her employers?
55           It is convenient here to say something about the tyre marks shown in the photographs taken by Constable Lincoln and measured and sketched by Constable Hunt in his plan. The defendants submit that I cannot be satisfied that those marks were caused by the quad bike in the course of the occurrence of Ms Raper's accident and that they could have been left at some other time.
56           I do not accept that submission. Constable Hunt, who was the first police officer on the scene, accepted in cross-examination that, leaving aside the possibility of cows trampling on the marks if they had been put there the day before for example, that he could not tell from looking whether they were or were not 24 or 48 hours old. However he gave this further evidence in cross- examination:
"And did you check the area to the west – or – I withdraw that. Did you check the ground, say, for a hundred metres around the quad bike in all directions apart from the south?.....Yes.
All right. You paced it out?.....It was a ground search.
I mean you walked around with your eyes on the ground looking for things that might be relevant?.....Yes.
Did – you didn't see any mark on the ground indicating any impact between any hard surface of the quad bike and the ground in that search, did you?.....There were marks on the ground which I believe came from the quad bike, and obviously the quad bike at certain points was touching the ground, it wasn't floating, but –
15   No 35/2016

Apart from what you've shown in your diagram, which the marks caused by the wheels or the tyres, there were no other marks on the ground that you saw that you believed might have been placed there (indistinct word due to coughing) – were there?……No, other than – no, other than the ones in the diagram, no."

57           I regard it as fanciful that the marks shown in Constable Hunt's sketch plan were anything other than marks left by the quad bike ridden by Ms Raper in the immediate prelude to her falling or being thrown from the bike. The marks led to the position where Ms Raper was found lying on the ground next to the quad bike and they were unusual and distinctive marks inasmuch as the right-hand mark stopped a distance before the left indicating to me that one set of wheels had left the ground. Mr Keramidas agreed when I asked him that it could well have been at that point that the quad bike was travelling on two wheels, on its two left-hand wheels.
58           Moreover, I regard as fanciful the proposition that is the corollary of the proposition that the marks described by Constable Hunt were left 24 or 48 hours earlier. That is, that the quad bike left no marks at all on the ground leading to the point where Ms Raper parted company with it. And she parted company with it in circumstances where the translation force involved was such as to cause a tearing of the veins which drain the blood from the skull resulting in a subdural haematoma, and the direct forces were such as to result in the tearing of the meningeal artery running between the skull and the lining of the brain causing an extradural haematoma, as well as a fracture of the whole of the middle third of Ms Raper's face leaving it floating free of her skull.
59           I have no hesitation in inferring that the marks photographed by Constable Lincoln and sketched from memory by Constable Hunt were tyre marks left by the quad bike Ms Raper was riding at the time she lost control of the bike and fell or was thrown from it. There is a complete absence of any sufficient reason not to do so. Any competing inference is, as I have said, quite fanciful.

The inoperative rear brakes

60 The plaintiff's written submission in closing was as follows:
"The brakes
As to causation, Dr Rechnitzer gave the following evidence at T 239. He was not challenged on it
What can happen if you don't have the rear brakes functioning?……Well there's a couple of things; it depends on what obstacle you encounter or what you're trying to avoid, but if you're trying to brake suddenly and only the front brakes are operating you could slide out laterally, in other words that can then – any lateral movement in a quad bike can then lead to tip over, because it's got a low lateral stability, and so you want to avoid those situations where the quad bike can slide out laterally – I'm not talking about in a controlled fashion by an experienced rider, I'm talking about riders where – where it happens to you unintentionally and you can then lead to a rollover. The other thing I haven't mentioned by the way with quad bike handling is that have the character – most quad bikes have a characteristic of what's known as 'oversteer' which means that they want to turn more sharply than what you'd like them to do. So, for example, the ideal steering situation is what's known as 'under steering' - it's well known in cars, your Honour, where when you're turning you don't, you want – want to be able to yourself put in a bit more steering rather than have the car bite and get you turning more sharply because that can lead to the loss of control, so quad bikes – and we tested these – tend to oversteer which means they're particularly bad for an inexperienced rider because it's turning more sharply than what they thought it would, and so all these factors add together so when you have a perturbation with an oversteering vehicle you can easily – more easily lose control and roll over. With the roll over, of course, with quad bikes you're then vulnerable to being seriously injured because there's no protection provided by them in a roll over.
16 No 35/2016

Mr Keramidas advised that the loss of the rear brakes would reduce braking capacity by 30%. He said at page 26 of D 16 'it is agreed that from dynamic sense weight transference to the front makes the front brakes critical and the rear brakes, while still important, less critical'."

61 Ultimately Dr Rechnitzer accepted that even if the quad bike was not to roll end over end but to roll sideways it would be highly unlikely for it to end up in the position that it did, bearing in mind the distance between the end of the tyre marks and where the bike came to rest, if that distance was 1.69 metres and not the 3.5 metres estimated by Constable Hunt. However that concession does not, in my view, diminish the value of his evidence as to the effect of the inoperative rear brakes on the bike.

62 The defendants' written submission made in closing on this issue was as follows:
" 2.17 The condition of the bike is assumed by Dr Rechnitzer to be a cause of the accident when he cannot identify the mechanism by which the accident occurred. At T 159 Mr Gates was asked about the condition of the bike. Mr Gates was asked 'the best way to describe how a quad bike motor vehicle would behave or was behaving would be a description by somebody who had driven it at the relevant time, would it not?'. The answer was: 'Yes'. The next question related to the bike being manufactured with only one rear brake which was a drum brake. Mr Gates agreed 'technically speaking' that a drum brake 'are (sic) far less efficient than a disc brake'. In response to the proposition that at low speed (a drum brake) would not be required for any braking effect on the particular quad bike he inspected, Mr Gates said 'that would depend on the circumstances, I think that's a difficult question to answer'. That led to the question that 'we should rely upon the people who had actually ridden the bike who could describe what it was like so far as its handling and braking was concerned?'. Mr Gates agreed with that proposition. At T 111 commencing at line 40 Mr Gatundu gave evidence that he 'frequently used the ATV which Holly was using at the time of her accident'. He agreed with the proposition that it was in good repair (T 111.43) and he never had any trouble riding it (T 112.1). Ms Bowden described the bike which she rode every couple of all the all days since purchase right up until the time of the Plaintiff's accident (T588.31-2) as 'a good riding bike, it was a smooth ride, it handled well, it was what you expect in a working bike' (T 588.35-37). At T588.17 Ms Bowden gave evidence that 'that particular bike was in good farm working condition' and 'the front brakes were more than adequate to stop the bike'. The speedometer worked (T 88.40). It is to be noted that the Plaintiff had a driving licence in the UK. She had owned a car in the UK for 2 1/2 years before coming to Australia (Elaine Raper p 10). It is unlikely that a driver with any real experience would consult the speedometer at speeds up to 15 km/h. There was evidence to the effect that having the rear brake disconnected makes no practical difference to the performance of the bike at speeds at which it was used."

63           I prefer the expert evidence of Dr Rechnitzer and Mr Keramidas to the almost anecdotal evidence of Ms Bowden and Mr Gatundu. In particular, I am influenced by the evidence of Mr Keramidas already referred to, that although to a lesser extent than that which he regarded as the primary factor of the speed of the bike and the terrain, the inherent instability of quad bikes and nonetheless rider inexperience on Ms Raper's part, the ineffective rear brake on the bike was one of the causal factors in her loss of control.
64           In my view, particularly given that Mr Keramidas saw evidence of retardation as opposed to acceleration in the tyre marks as depicted in the photographs, I am of the view, having regard to his other evidence on this subject as well as that of Dr Rechnitzer, that it can be concluded on the balance of probabilities that, whatever the actual dynamics of the accident were and whether they involved a roll over or not, the absence of operative rear brakes was a cause of the accident by reducing the braking capacity of the quad bike by some 30%.
17   No 35/2016

The deflated rear tyre

65 The plaintiff's submission in closing as to the causal effect of this particular breach of duty
was as follows:
"The deflated rear right tyre
Dr Rechnitzer said of the various mechanical defects, including the deflated right rear tyre 'you're just now layering another level of risk on top of what's already underlying it.' Specifically, as to the tyre he said at T 239.
it affects the way the bike responds to the rider's input. It affects the suspension. It can bottom out more readily because the tyres are too low a pressure. The – so all of these things, low pressure tyres- tyres inadequately inflated, poor mechanical condition, makes the bike less predictable than it already is in terms of its handling, so the rider could be caught by surprise, not quite know how to respond and so on.
The manual (P 70 page 5, page 54 and page 152) indicates what can happen - Use of improper tyres on this ATV, or operation of this ATV with improper or uneven tyre pressure, may cause loss of control, increasing your risk of an accident.
All of the evidence leads to the conclusion that the deflated right rear tyre was a cause of the loss of control of the bike and hence a cause of the damage."

66           That submission was not answered by the defendants except to the extent that it was embraced by their submission concerning the condition of the bike generally, which submission is set out above at [62] of these reasons.
67           Mr Keramidas, in cross-examination agreed as correct, statements in the Owner's Manual for the quad bike that it was important to maintain proper tyre pressure and that uneven tyre pressure may cause loss of control because, as he said, on a quad bike tyre pressure is a component of the bike's suspension. However, neither that evidence nor that of Dr Rechnitzer goes beyond identifying incorrect tyre pressure as a risk factor.
68           Unlike the situation with the inoperative rear brakes, where it can be safely concluded that however Ms Raper's accident occurred braking was involved, there is no causal link between the deflated rear tyre and Ms Raper's loss of control of the quad bike. The evidence simply does not disclose what caused her loss of control of the bike beyond that it was, I readily infer, associated with her encounter with the drain, whether she observed it beforehand or not.

Training and instruction

69           In my view there can be no doubt, that had Ms Raper been properly instructed and trained in a way that imparted to her the matters that were typically covered in the training course detailed by Mr Thompson, she would not have lost control in crossing such a simple feature of the terrain of the paddock as the drain.
70           It does not matter that the evidence does not disclose how the accident happened. However it happened it would on the balance of probabilities have been prevented had Ms Raper been properly trained. For example if the cause of the accident was that Ms Raper did not see the drain before she encountered it, proper training as described by Mr Thompson would have seen her instructed to be carefully scanning the terrain in front of her and possibly standing up from her seat to see in front of her. Conversely, if she did see the drain ahead of her, proper training would have seen her instructed to cross it with her wheels square on, using her body weight correctly and at a speed that was appropriate, all in the way outlined by Mr Thompson. It needs to be remembered that Ms Bowden gave evidence that she knew the drain and rode across it at 30 km/h without mishap. It was not an obstacle that should have seen a properly trained rider lose control.
18   No 35/2016

71           The defendants submit that "the best trained people sometimes have accidents either because their training could not prevent an accident or because they did not utilise the training in preventing the accident". In the present case that is no answer to the question of causation, the test for which is whether it is more probable than not that the provision of proper training and instruction, which the defendants did not provide, would have prevented or minimised Ms Raper's injury (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, 243 CLR 361 [104], citing Victoria v Bryar (1970) 44 ALJR 174, per Barwick CJ at 175).
72           The defendants also argue that there is no evidence that Ms Raper had not had proper training before entering the defendants' employment. I reject that submission in the light of Ms Bowden's evidence of what I regard as the wholly inadequate training provided to Ms Raper by Anastasia. Such basic instruction in how to operate a quad bike would hardly have been likely if Ms Raper was already a trained and/or an experienced rider.
73          In my view it can confidently be said that, absent Ms Raper deliberately riding at an excessive speed, the cause of her injuries was a lack of appropriate training in the riding of the quad bike.
74           The suggestion that Ms Raper was deliberately driving at an excessive speed can be rejected on the basis of the evidence of the record of Mr Haines' interview by Mr Yovich. The effect of that evidence was that Mr Haines' observations of Ms Raper showed that she was "conservative by nature" and that in riding a quad bike she was cautious; took time in changing gears and making sure she "had all the movements right", and rode "steady and slow".
75           If the primary cause of the accident was in fact, as Mr Keramidas suggested, excessive speed in approaching or entering the drain which Ms Bowden could cross without mishap at 30 km/h then the compelling inference would be that Ms Raper rode at such a speed because of inadequate instruction and not because she was wilfully misbehaving.

Safety helmet

76 There was no issue at trial as to the question of breach of duty. The evidence was that helmets were available for use by employees of the defendants when riding quad bikes but that the wearing of helmets was not required by the defendants. Indeed the failure of employees to wear safety helmets was ignored by the defendants and, as has already been observed, the first named defendant pleaded guilty to a charge of failing to ensure Ms Raper wore a helmet when riding the quad bike contrary to s 9(1) of the Workplace Health and Safety Act.
77           As to causation, the defendants addressed this breach by posing what they referred to as "the more significant question" of whether or not a helmet would have made a great deal of difference to the effect of any of the injuries sustained by Ms Raper "in whatever event in fact occurred".
78          Prominent amongst Ms Raper's injures was a fracture of her face and injury to her brain caused by venous blood and arterial blood fed haematomas.
79           As to the facial fractures, the defendants argue that one only needs to look at the diagram tendered in evidence showing the position of the fractures in the middle third of Ms Raper's face to see that on the balance of probabilities an open face helmet of the type that she would have been wearing, had the defendants observed their duty to her, would not have protected her face from the type of injury she sustained.
80           I accept that submission. I am satisfied on balance that whether the quad bike rolled over or not the fractured middle third of Ms Raper's face was caused by her face impacting the right handle bar of the bike when she lost control of it. That is the only mechanism for that injury that I see possible and, in my view, an open face safety helmet would not have prevented such an injury.
19   No 35/2016

81 The more difficult question is whether a safety helmet would have prevented the injury to
Ms Raper's brain.
82 The best evidence I have on that question came from Dr Siu, a neurosurgeon. He said that the mechanism of Ms Raper's head injury would have been that:
"… there would be direct trauma to the skull, and the meningeal artery, running between the skull bone and the dura, which is the lining of the brain, can be torn producing an extradural haematoma. This is an arterial fed haematoma and the size of this haematoma would increase rapidly causing brain compression. Because of the speed at which the cranium hit the ground, the bridging veins which drain the blood from the brain into the sinuses, (in the dural space) can be torn causing a subdural haematoma. This also increases in size with time but being venous blood it does not accumulate at the rate of the arterial blood which is seen with extradural haematoma. With the force sustained, there is also trauma to the brain itself (contusion). The rapidly expanding haematoma, extradural and subdural, causes brain compression." (Emphasis added.)

83 It is beyond doubt that Dr Siu's evidence was that both the slower developing subdural haematoma and the more rapidly developing extradural haematoma were both causative of the brain compression. The question is whether wearing a safety helmet would have prevented both haematomatas?
84 As to this question Dr Siu's evidence was equally clear. He said:
"The wearing of a protective device depending on the speed of the impact, is unlikely to prevent the occurrence of a subdural haematoma, and I go to the mechanism of the production of the haematoma …… The brain is suspended and floating on cerebral spinal fluid. When the head, with or without, a protective device is struck at speed the speed at which the head travels would stop, but the speed at which the brain inside the skull travels does not stop at the same moment, there is still a translational force, so that the tearing of the veins would suspend …… sorry the tearing of the vein would suspend the brain in the skull and it is that mechanism that provides the subdural haematoma. The wearing of a protective device may reduce the change [sic] of it but when the speed significant [sic] it would not reduce the incident to any significant extent of the development of the subdural haematoma."(Emphasis added.)

85 I am satisfied to the requisite degree that Ms Raper's failure to wear a safety helmet caused or materially contributed to the injury or injuries to her brain.

A side argument

86 In a medical negligence case, Crockett v Roberts [2002] TASSC 73 at [63] Underwood J (as
he then was) said:
"Did the defendants' breaches of their duty of care cause injury?
63 The following correct statement of the relevant law is taken from the opening paragraph of the closing submissions made on behalf of the defendants:
'If a wrongful omission results in an increased risk of injury to the plaintiff and that risk eventuates, a trier of fact is entitled to conclude that the omission caused the injury unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and caused the damage in any event.

• Betts v Whittingslowe (1945) 71 CLR 637 at 649;

•

Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420- 421;
20 No 35/2016

• Chappel v Hart (1998) 195 CLR 232 at 237-238, per Gaudron J; at 247- 248, per McHugh J; at 257-259, per Gummow J; at 272-273, per Kirby J;
• Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 per Gaudron J; at 312 per Callinan J;
• Rosenberg v Percival (2001) 75 ALJR 734 at 749-751 per Gummow J.'

With respect to that proposition of law, Mr Estcourt submitted that careful analysis of the history of the plaintiff's illness and its treatment shows that even if appropriately treated, the plaintiff would not have made a complete recovery from the intracranial infection."

87 On its face that statement of law would appear to have application to the present plaintiff's case, in particular the question of whether I am entitled to conclude Ms Raper's brain injury or injuries was or were caused by the defendants' omission to ensure that she wore a safety helmet in circumstances where the defendants have not established that such injury would have eventuated and caused the damage in any event. Senior counsel for the defendants asserted however that that proposition is not a correct statement of the law as to causation on liability issues.
88 In his opening address, senior counsel for the plaintiff, Mr Read SC, said:
"Since this matter is not governed by the Civil Liability Act 2002 the test as to causation is the common law sense test with the plaintiff having the benefit of the inference that arises from the fact that the various matters pleaded at paragraph 27 and 28 increased the risk of injury to the Plaintiff and that risk eventuated: unless the defendant establishes that the conduct had no effect at all."

89 That statement appears to rely upon the proposition of law accepted as correct by Underwood J in Crockett. In their written closing address counsel for the defendants addressed that statement by Mr Read as follows:
"3.2 For reasons which will be the subject of the above submissions, the Defendants do not concede that the matter is not governed by the CLA. Whatever the appropriate regime (ie at common law or under the CLA) the Defendants submit that there is no reversal of any onus relating to causation for other issues.
3.3 Assuming one, some or all of the pleaded breaches of duty are made out, the Plaintiff must also prove that one, some or all of those breaches were legally causative of the injuries she suffered.
3.4 To succeed on the issue of causation at common law, the common law of Australia requires a plaintiff to prove on the balance of probabilities that a defendant's breach of duty 'caused or materially contributed to' his or her injuries. Questions of whether causation or material contribution are made out in a given case are answered by reference to the 'but for' test buttressed by considerations of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
3.5 Undoubtedly, the application of those principles in some cases presents large, even insurmountable, barriers to Plaintiffs in respect of causation. Circumstantial cases such as this one are a prime example. The inability of the Plaintiff to give evidence in this case and the fact that there are no other witnesses to the accident constitute obvious difficulties in determining whether or not the Defendants' breaches were causative of her injuries; it is impossible to conclude with any degree of precision how and why the accident, and the Plaintiff's consequent injuries, occurred. Nevertheless, the Plaintiff's onus of proof and principles to be applied in relation to causation remain constant: see, for example, Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 at [144] per Kiefel J; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 318B (and generally at 311-319) per Mason P.
21 No 35/2016

3.6 If the Plaintiff's submission amounts to an argument that, in cases in which a defendant's conduct has or appears to have increased the risk of a plaintiff's injury occurring, the onus falls upon a defendant to disprove causation then that submission is wrong as a matter of law. While the Court may permissibly engage in an exercise of robust inference drawing where the evidence in relation to causation is scant (see the cases cited by Mason P in Bendix Mintex at 317D-F) and the facts of a given case may place a practical, evidential burden on a defendant, the legal onus in relation to proof of causation always remains with the plaintiff and the Plaintiff must prove more than that the Defendants' breach of duty increased the risk of the Plaintiff suffering injury. The Plaintiff must prove that the Defendants' breach did cause or materially contribute to the injuries suffered: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [118] per Spigelman CJ.
3.7 The argument put by the Plaintiff is consistent with the principle of McGhee v National Coal Board as extended by the Court of Appeal (UK) in Wiltsher v Essex Area Health Authority to the fact that where, although it could be shown that the defendant's conduct had materially enhanced and existing risk of injury, that injury might equally be attributed to a variety of other (unproven) causes. Mustill LJ interpreted McGhee as saying that the defendant will be taken by his or her breach of duty to have caused the injury if it is an established fact that the conduct of a particular kind increases the risk of injury, even though the existence and effect of the contribution made by the breach cannot be ascertained. That decision was reversed on appeal to the House of Lords who, in so doing, quashed any notion that McGhee had established a new rule shifting the burden of proof in such cases to the defendant. In Australia see Chappel v Hart and Naxakis v Western General Hospital. On any view of the authorities, the proposition for which the Plaintiff contends does not apply to the onus of proof in relation to causation on liability issues."

391 I apprehend that Ms Raper's headrests will need changing more regularly than the defendant's submit. Ms Parry gave evidence that Ms Raper had quite strong reflexive movements making wear to the headrest quite high. She thought replacement would probably be required every two years.
392 I allow the sum claimed but discounted at 3% over 15 years. The resultant figure is £6,973.16.

Tobii Eyegaze assessment

393

The plaintiff's claim is particularised as follows:
"Assessment from Tobii Eyegaze Technology or similar

Cost:

£8,967.00 plus VAT (£10,760.40)

Plus Mounting System for chair £6035.00 plus VAT (£7242.00)
Total: £18,002.40".

394         The defendants submit that the opinions of their witnesses, Professor Swash, Professor Ward and ophthalmic surgeon, Dr Delaney, should be accepted and the plaintiff should not be awarded damages for this device.
395   The plaintiff submits as follows:
104   No 35/2016

"The 24th recommendation in her [Ms Gill-Thwaites] report was for an assessment
for the use Tobii eye gaze technology.
The defendant's attack on the use of Tobii Eye Gaze Technology was premised on a misunderstanding that the technology requires a high level of awareness in order to be of any benefit. Mrs Gill-Thwaites, in a report (P55) at page 35, sets out the benefit of an assessment for the use of such equipment or similar equipment. Within the context of a 10 session program over a 5 week period a trial could be conducted of the Tobii Eye Gaze Technology to indicate:

(a) assessment of visual calibration;
(b) assessment of accuracy of visual focusing and tracking;
(c) assessment of cause and effect with technology i.e. maintain gaze on item provides visual and auditory reward;
(d) assessment of visual discrimination of named objects and then in making choices or yes/no responses if deemed appropriate.
Ms Kent gave evidence about the potential for a person in Holly's position to communicate:
'So it's also important in terms of looking at people's ability to communicate in a use switches or to use eye pointing techniques or eye gaze techniques to be able to communicate and express a preference because this is a very important thing for somebody's quality of life, if somebody is able to communicate and able to express some wishes.
Prof Swash gave evidence that Holly was capable of a fixed gaze. Prof Ward gave evidence that Holly had voluntary movement of the eye rather than nystagmus (a reflex response). As noted above, Ms Parry gave evidence that Holly could consistently differentiate between red and green cards.
All of the evidence supports a conclusion that Holly has at least the potential to use equipment of this type and an assessment of its suitability is reasonable, particularly given the benefits that would accrue to her and her family if it (or like equipment) could be used for a level of communication.'"

396         I accept the plaintiff's submissions. There could not, in my view, be anything more important in what remains of Ms Raper's life than to be able to communicate at even the most basic level. At the moment no one knows whether Ms Raper is in fact able to use her eyes in any consistent and meaningful way. On that basis an assessment such as that proposed is, in my view, more than reasonable, it is an essential next step.
397   The following exchanges during the evidence of Mr Delaney are to the point:
"MR COX: (Resuming) I understand. So, if this persists, this – she retains this ability to see colours and differentiate between them, and you accept that she has a component of a vision or eye movement that's voluntary, it would follow wouldn't it that she could, if not fatigued, discern or select between different colours: does that follow?.........Not reliably.
Mm?.........The tests that have been done are simply not accurate enough to come to that conclusion.
Mm.
HIS HONOUR: On Ms Rape, or generally speaking do you mean? What tests are you talking about?
WITNESS: The – the red/green –
105   No 35/2016

HIS HONOUR: Yes.
WITNESS: - carried out is just not accurate enough. The other tests that were attempted by the other – Mr Dominelli, set it up in a way that would have been more scientifically accurate with multiple tests repeated 12 times.
HIS HONOUR: Mm. But it must follow as a matter of medical science, mustn't it, that if a person has the ability to distinguish, say, between red and green and the ability to – to control some eye movement that there's a window to communication?
WITNESS: Potentially. I've got my doubts as to how much control there was of that eye movement, and –
HIS HONOUR: But I'm not talking about this person?
WITNESS: Oh right, yes. Yes, your Honour.
HIS HONOUR: Because we don't – we don't know. I mean the tests might have been –
WITNESS: That's –
HIS HONOUR: - accurate, they might not have been. But nobody can tell us what the true situation is.
WITNESS: I – I think that's correct."

398 If there is by any chance a means to discover whether Ms Raper has the capacity for reliable visual discernment then, in my view, any available assessment should be carried out.
399 I allow the claim in the sum of £18,002.40.

Height adjustable therapeutic table

400	The plaintiff's claim is as follows: "Height Adjustable Therapeutic Table Cost: £1,345.00 Replace every 10 years = £2.59 per week, discounted at 3% the claim is £2,084.00 Total: £3,429".

401 The claim is reasonable and should be allowed in the adjusted sum of £2,959.08.

Bathing hoist and sling

402	The plaintiff's claim is particularised as follows: "Bathing Hoist and Sling Total: £1,283.00 plus VAT (£1,539.60)".

403 The defendants submit that I am unable to be satisfied that such a device is reasonably necessary. Given that I have held that hydrotherapy is improbable for Ms Raper I accept that submission. No award is made under this head.
106 No 35/2016

Snoezelen room and equipment

404 The plaintiff claims £8,000 under this head. For the reasons already given no allowance is
made.

Un-costed future therapies

405 The plaintiff's claim under this head is as follows:
"Un-costed Future Therapies:
The evidence demonstrates that the plaintiff may have numerous other medical and care related needs from providers including, a Dietician, Respiratory Specialist, GP, Postural Therapist, Orthotist, Neuro Psychologist, Neuro Ophthalmologist, Communication therapists, specialists in visual and auditory therapy and the like.
In addition, there is consensus that the Plaintiff requires a team of health care professionals and that the team should meet regularly.
Finally, the Plaintiff will also have the need for various therapy programmes (such as those recommended by Mrs Gill – Thwaites) that are yet to be conducted.
The Plaintiff claims the sum of £150,000 on an in globo basis for other future therapies and related needs
Total: £150,000".

406 The defendants submit as follows:
"9.127 As a preliminary matter, the Defendants submit that the panoply of future therapies and future equipment that are claimed derive from reports of a number of allied health professionals, primarily Ms Gill-Thwaites. The recommendations of a number of these persons are either in conflict with each other, or with the opinions of medical specialists, including but not limited to the treating rehabilitationist, Dr Shakespeare.
9.128 Professor Ward stated in evidence that specialist rehabilitation of someone with a prolonged disorder of consciousness would require the input of all members of a multi-disciplinary team, and that consists of a consultant in rehabilitation medicine, who was the most appropriate physician to deal with physiotherapy, occupational therapy, speech and language therapy, particularly from a swallowing aspect. In Professor Ward's opinion, the team would be under the clinical care of a consultant in rehabilitation medicine, who bears responsibility for the ongoing management of the patient.
9.129 Mrs Raper gave evidence that the Plaintiff would continue under the care of Dr Shakespeare. Dr Shakespeare is the Plaintiff's rehabilitation specialist and treatment and any devices prescribed should be co-ordinated under his management though Lancashire Teaching Hospitals NHS Trust."

407         As I have rejected the proposition that the plaintiff is obliged to resort to the NHS some allowance should be made under this head, however, an amount of £150,000 for "uncosted" future therapies appears to me to be grossly excessive and counter intuitive. The amount allowed for all "costed" future therapy, that is, occupational, speech and language and neurological is only £208,043.20.
408         Nonetheless the evidence overall would suggest that Ms Raper may need a number of medical interventions in the future, particularly if she gains or loses weight or suffers from infections, most likely life threatening chest infections. I allow a total sum of £20,000 under this head.
107   No 35/2016

Future transport

409 The plaintiff's claim under this head is particularised as follows:
"Future Transport
The Plaintiff needs a suitable vehicle, such as a VW Caravelle Executive.
Total Capital Cost: £63,640 (Including adaptation costs) Replacement every 5 years: £12,728 pa
Additional running costs.
Insurance: £1,136 pa
Additional mileage: £400 p.a. (1,000 @ 0.40 ppm)
Valeting: £480 pa (£40 per month)
Total Annual Costs: £14,744 or £283.54 pw

The plaintiff claims £14,744 for life, discounted at 3% is £228,249.00 plus £63,646 =
Total: £291,895.00".

410 The plaintiff's submissions under this head are as follows:
"Holly's transport needs and the reasonable value thereof – the claim for the past has been accepted by the defendants. It is in the sum of £93,696 (P37) to 31st May 2016 and continuing to the date of judgment at £89.00 a day.
To date, Holly has rarely been able to leave her home, despite having a vehicle fit to transport her. Her ability to access sensory stimulus outside her home is dependent on suitable transport to get her, her parents and carers to places of interest to Holly. The evidence from Mr Kiely established the price to purchase a similar vehicle to the one she has.
The defendants say Holly's transport costs should be met through a government subsidised scheme (Motobility) and, in any event, a vehicle at a lower price is reasonable.
For the reasons set out under the section entitled 'pecuniary losses' any benefit that accrues to Holly via the Motobility Scheme should be disregarded.
The vehicle proposed by Mr Kiely for purchase is reasonable for the following reasons:

i it is the same vehicle that Holly has used (albeit a newer model) without
complaint or difficulty;

ii

Mr Kiely and Elaine tested that vehicle (the VW Caravelle) and found it to be suitable for Holly's needs, including climate adjustment in the rear of the vehicle;
iii Holly requires a vehicle, modified with a lower floor to enable wheelchair
access;

iv

the vehicles provided by Motobility may not have the necessary modifications to the chassis to lower the floor and provide wheelchair access;
108 No 35/2016

v the modifications to the vehicle require replacing every 5 years;
The defendants' criticism of Mr Kiely – to the effect that he profited from the short term lease arrangement - was grossly unfair. He gave evidence that he was not approached to change 'that vehicle or look for alternatives' and he provided a quote for the purchase of a suitable vehicle (rather than continuing a lease) on 4th July 2013, within months of entering into the lease arrangement with Elaine Raper."

411 The defendants' submissions are as follows:
"9.281 The Plaintiff claims a need for a vehicle such as a VW Caravelle Executive but when considering the evidence of Ms Dennehy, including her comment at T 14, is clear that such a vehicle is a desire rather than a need. In any event the Plaintiff's needs can be most effectively met by the Motobility Scheme.
9.282 The evidence of Mr Kiely should be completely disregarded as it is clear from his past behaviour that is a man not to be trusted or believed because the way he has grossly overcharged the Plaintiff and now seeks to justify such charges. It is pertinent to note that Ms Dennehy was able to obtain a quote for a similar vehicle being rented to the Plaintiff from Mr Kiely's organisation for a significantly lesser sum. Mr Kiely was charging on average £2823 per month plus insurance whereas Angel Vehicle Hire would provide a similar vehicle for £1278 per month including full insurance (Ex D5, p 5).
9.283 Mr Kiely did not even check the far cheaper quotes obtained by Ms Dennehy despite being in receipt of her report (T 9). The only inference that can be drawn is that he knew that if he checked her quotes he would find that they were accurate and confirm his overcharging. Furthermore his failure to check leaves Ms Dennehy's evidence uncontradicted on that point.
9.284 Mr Kiely was dismissive of the Motobility Scheme but all his 'concerns' were comprehensively refuted by Ms Dennehy who was very experienced in the relevant areas. As she noted (T 11);
'Personally if I was in that position I would always use the Motobility Scheme it's an absolutely fabulous scheme. All you have to do is put fuel and oil in your vehicle, it is insured, the tyres are covered, there is a breakdown cover for you, when they service it they'll come and collect it and take it away because of Holly's predicament, you know, it's seamless.'
9.285 She noted that you'd never come across a situation where a vehicle is not available suit a person's particular needs and also noted that it was the largest motor vehicle leasing company in Europe with 501 models available from different providers (p5).
9.286 The cost for the Plaintiff of using the Scheme for a five year period was an upfront payment of £5415 (Ex D5 p10) and the foregoing of £14,937 of the Plaintiff's higher rate component of a disability living allowance.
9.287 Because of the limited mileage that the vehicle would do (bearing in mind that to date it has done only 5000 miles per year and we don't know how many miles it had travelled before being rented to the Plaintiff) Ms Dennehy disputed Mr Kiely's requirement for a replacement vehicle every five years, even allowing for the wear and tear of the internal equipment the precise nature of which was not articulated by Mr Kiely. The evidence suggests that the vehicle would travel only about 2,000 miles per year with a running cost for fuel of between £227 and £260 per year depending on the size of the engine (Ex D6, p 5). It also should be noted that it would be far cheaper to replace the interior harnesses than the entire vehicle and there would not seem to any other interior equipment that would wear prematurely.
9.288 Assuming that a new vehicle is acquired every five years and a 15 year life expectancy the total cost for future transport will be £61,957.05. This amount will be considerably lower if, as is highly likely, the vehicle was to be retained for any period
109 No 35/2016

longer than five years. A small charge for valeting could also be allowed but bearing in mind the limited use of the vehicle that amount should be no more than £200 per year adding a further £3000 to the above cost.
9.289 Ms Dennehy also notes that if a vehicle was to be purchased it would be a waste of money purchasing a Caravelle rather than a transporter and at T 5 stated:
'My professional view is that the Caravelle is marketed in the UK as a luxury people carrier, it's a high-end vehicle with lots of sort of additional features, a lot of the inside of the vehicle has to be ripped out and actually just thrown away to enable conversion to a wheelchair accessible vehicle to take place. So I wouldn't recommend it on that precedent alone, the other thing is I believe that a lot of the features and refinements on the Caravelle are such that they're just desires people may purchase as a passenger carrier.'
9.290 If the court finds that the Plaintiff should be compensated for the cost of purchasing a motor once again any estimates provided by Mr Kiely should be disregarded.
9.291 Ms Dennehy obtain quotes for appropriate vehicle for £30,500 from Atlas Mobility Conversions and £28,920 from GM coach works. Allowing for a vehicle changeover period of 7½ years the annual purchase costs will be £4067 and £3856 respectively to which would have to be added fuel costs of up to £260 per year, insurance of say, £800 per year and valeting of £200 per year resulting in a maximum annual cost of £5327 or £79,905 over a 15 year period. The Motobility Scheme is clearly a cheaper and more convenient option and it would be unreasonable for the Defendants to be required to pay more than that option.
9.292 There will be an insurance cost per year about which there was no conclusive evidence as we were not aware of the Plaintiffs driving record. The Plaintiff has particularised this cost at £1136 per annum but as a charge covered by the Motobility Scheme it would not be relevant if the court accepts the submission that this is the most reasonable option."

412        I agree that the criticism of transport consultant Mr Kiely is unfair, however it is apparent that the plaintiff has been paying far more than is necessary for transport.
413         I accept the defendants' submission that the Motobility Scheme is the most reasonable means of the plaintiff paying for the cost of her future transport. Ms Dennehy was a very experienced assessor for people with disabilities in respect of their ability to drive or to be carried as a passenger. She was a most impressive witness. She was in no doubt as to the quality of the Motobility Scheme. She described it "as an absolutely fabulous scheme". She said it was "seamless".
414         In my view it would be objectively unreasonable for the plaintiff not to avail herself of the facilities of Motobility. The situation is quite unlike the position with future care where, irrespective of any other considerations, it was both objectively and subjectively unreasonable to require the plaintiff to rely on the NHS. Nor is there, in my view, any subjective reason for the plaintiff not to use the Motobility Scheme. Not to do so would be a failure to mitigate her damage.
415         The Motobility Scheme enables disabled recipients to lease a new car for five years by sacrificing their government funded allowance, in the case of Ms Raper some £57.45 per week, and in addition paying an advance payment, in the case of a Volkswagen Caravelle an amount £10,995.
416         At the end of the five year period there are various options open to a person leasing the vehicle. They can apply to buy the vehicle from the scheme, or they can simply hand the vehicle back and then lease another vehicle, paying another advance payment and again sacrificing the government funded allowance of £57.45 a week.
110   No 35/2016

417         In my view it is not unreasonable for the plaintiff's vehicle of choice to be a Volkswagen Caravelle, and in view of the obvious preference for reliable transport I would think that it would be reasonable for the plaintiff to take a new vehicle each five years.
418         On my calculations the future cost of a Volkswagen Caravelle leased now and then replaced each five years during the balance of Ms Raper's life expectancy, discounted at 3%, results in a sum of £64,000. To that figure must be added valeting which I allow at £3,000 and mileage at £4,500.
419         I allow for future transport the sum of £71,500. However, from this sum there needs to be deducted an amount to represent Ms Raper's transport costs during her present life expectancy had she not been injured. I assess that amount in the sum of ₤24,315.38. The resultant total amount under this head is ₤47,184.62.

Future medical supplies

420 The plaintiff's claim is particularised as follows:
"Future Medical Supplies
The Plaintiffs needs daily medical supplies (as above) at a cost of £225.00 per week or £11,700.00 per annum.

The plaintiffs claim for 20.6 years, discounted at 3% the claim is £181,125.00
Total: £181,125.00".

421 The defendants submit as follows:

"9.208 The Plaintiff claims the sum of £225.00 per week for medical supplies.
9.209 The Defendants say that the NHS will continue to meet the Plaintiff's need for
medical supplies.
9.210 Further and in the alternative, the Defendants say that if cost per week is based upon a revised schedule prepared by Ms Kirby, in respect of which she was extensively cross-examined, it should be reduced significantly for contingencies if accepted. The calculation is as follows:-

9.211 On a life expectancy of 11.4 years
9.211.1 £250.72 x 504.9 = £126,588.53 (3% multiplier). 9.211.2 £250.72 x 456.0 = £114,328.32 (5% multiplier).

9.212 On a life expectancy of 15 years
9.212.1 £250.72 x 632.3 = £158,530.26 (3% multiplier). 9.212.2 £250.72 x 555.0 = £139,149.60 (5% multiplier)."

422         I view this claim in the same category vis-à-vis the NHS as I do for the claim for future transport vis-à-vis the Motobility Scheme. I regard this claim as completely different to the claim for future care as regards the NHS.
423         There is no objective or subjective reason for the plaintiff not to continue to avail herself of free medical supplies. Unlike the situation with respect to future care there is no suggestion on the evidence that the plaintiff would move away from the NHS to privately fund the purchase of medical supplies. Moreover there is no suggestion that the provision of free medical supplies is related to
111   No 35/2016

Ms Raper's package of care such that the severing of ties with the NHS in respect of care would have ramifications for the provision of supplies.
424 Thus while fully appreciating the needs based nature of the plaintiff's claim, and irrespective of whether the intent of the NHS legislation was or was not that the relevant benefits were to be in addition to and not in diminution of the plaintiff's entitlement to recover from the defendants, my conclusion is that a failure by the plaintiff to avail herself of free medical supplies would constitute a failure to mitigate her damage. I make no allowance under this head.

Domestic cleaning

425 The plaintiff's claim under this head is particularised as follows:
"Domestic Cleaning
The Plaintiff needs domestic cleaning @ £3500 per annum for 20.6 years, discounted at 3% the claim is £54,182.00
Total: £54,182.00".

426 The defendants agree this claim in the sum of £42,560.11 which I accordingly allow.

Holidays and excursions

427 The plaintiff's claim under this head is particularised as follows:
"Holidays Outings and Excursions
The Plaintiff claims the reasonable cost of the need for holidays, outings, excursions and special events, including the additional cost of transport, accommodation and incidentals for the Plaintiff, her carers and parents. The claim is made on the basis that the plaintiff needs 2 holidays annually, on the mainland United Kingdom, each of a week's duration, and will have weekly outings and excursions and occasional special events such as attending family celebrations or age appropriate events such as festivals, shows and the like."

428 The defendants submit as follows:
"The Plaintiff makes a claim of £150,000 for two holidays a year for herself, her carers and her parents, and for weekly outings, excursions and special events such as attending family celebrations or age appropriate events, such as festivals and shows. There is no evidence of the extra costs of holidays and attendance at events and the Defendants object to an ambit claim which is not properly particularised.
9.278 Mrs Raper gave evidence at T 10 that one holiday was taken by the Plaintiff and her carers to Central Parcs. The destination was about an hour's drive from Chorley. She agreed in cross examination at T 12 that it did not make any difference to the Plaintiff whether she was on holiday in a destination other than Chorley or closer to Chorley.
9.279 There is no evidence that outings in and around Chorley have resulted in any extra expenditure by reason of the Plaintiff's disabilities.
9.280 There is no evidence that the Plaintiff has attended family celebrations, or has any intention of doing so. There is no evidence that the Plaintiff has attended festivals or age appropriate events, or has any intention of doing so. In any event, the Defendants submit that the nature of the Plaintiff's disabilities are such that she would have little, if any, awareness of these type of functions."
112 No 35/2016

429 This claim is completely unsubstantiated in my view. Ms Raper will have around the clock care by two carers and will have a suitable wheelchair and adapted motor vehicle allowed for by way of awards of damages under separate heads. There is no evidence that the costs associated with any holiday or excursion would be any greater than had Ms Raper been uninjured. I make no allowance under this head.

Further equipment

430 The plaintiff's claim under this head is particularised as follows:
"Further Equipment
The Plaintiff needs the following equipment and will be required to meet the following replacement costs

Equipment Capital Cost ARC

Consolor Seating System : £- £-

Sleep System : £- £-

Profiling Bed : £- £-

Hoists by 3@£5000 each: £15,000 £5000

Shower Chair- RAZ: £1974.27 £394.85

Motomed: £4880.00 £976.00

Total Capital: £21,854.27

Total ARC: £6,370.85
In addition the court needs to make allowance for the additional equipment referred to above the cost of which is not the subject of direct evidence. The plaintiff claims the capital cost of such equipment at £ 5000.00 with an annual replacement cost of £1000.00.

The total claimed is £26,854.27 (capital)
For replacement costs for 20.6 years, discounted at 3% the claim is £114,106.00
Total: £140,960.27".

431 The defendants submit as follows:
"Consolor Seating System
9.191 There is no evidence that the Plaintiff requires a Consolor seating system. The highest at which this claim is put is that Ms Gill-Thwaites' report states that seating ought be reviewed by an expert OT/PT. There is no evidence as to what should be supplied, why it is required, who should provide it and the cost of same. The Plaintiff has had seating assessments performed for her wheelchair and the prescriptions for seating should be determined by the multi-disciplinary team.
9.192 The Defendants submit that the claim is capable of assessment but the Plaintiff has chosen not to tender evidence of the costs. The Defendants object to an in globo award on that basis.
113 No 35/2016

Sleep System
9.193 The highest the claim is put is that in Ms Gill-Thwaites' report, a number of sleep systems had been trialled and were unsatisfactory and it was recommended that further trials be undertaken. The Defendants submit that the Court cannot be satisfied that such a device is reasonably necessary, given the lack of evidence.
9.194 The Defendants submit that the claim is capable of assessment but the Plaintiff has chosen not to tender evidence of the costs. The Defendants object to an in globo award on that basis.
Profiling Bed
9.195 The Particulars rely on the transcript of Mrs Raper at T 32 in support of this claim. However, Mrs Raper's evidence went to her search to find a holiday location with a profiling bed, which is what Central Parcs had.
9.196 According to Ms Raper's evidence at T 19, the NHS provided a hospital bed and mattress when the Plaintiff was discharged from Royal Preston Hospital. No evidence was led of any problems with the current bed, nor has any expert stated that it should be replaced.
9.197 First, the Defendants state that as the NHS supplied a bed in the past, the Plaintiff would be entitled to receive replacements during the course of her life.
9.198 Second, there is no evidence as to what should be supplied, when it should be replaced, who should provide it and the cost of same. The Defendants submit that the Court cannot be satisfied that such a device is reasonably necessary, given the lack of evidence.
9.199 The Defendants submit that the claim is capable of assessment but the Plaintiff has chosen not to tender evidence of the costs. The Defendants object to an in globo award on that basis.
Hoists x 3
9.200 A claim is made for three hoists at £5,000 each. Ms Parry agreed in evidence in chief that the cost of a ceiling hoist was £2,150 plus VAT. However, her equipment report does not refer to ceiling hoists. The Defendants concede that ceiling hoists would be required in her modified accommodation, but Mr Crosby makes allowance for these in his report.
Shower Chair

9.201 The Defendants agree that the Plaintiff should have a shower chair.
9.202 The Defendants submit that the following costs are appropriate:
9.202.1 Capital cost: £1,974.27.
9.202.2 Replacement: 5 years.

9.203 On 11.4 years life expectancy:
9.203.1 £7.60 x 504.9 = £3,837.24 (3% multiplier) 9.203.2 £7.60 x 456.0 = £3,465.60 (5% multiplier)
9.204 On 15 years life expectancy:

9.204.1 £7.60 x 632.3 = £4,805.48 (3% multiplier)
9.204.2 £7.60 x 555.0 = £4,218 (5% multiplier)

114 No 35/2016

Motomed
9.205 The Defendants submit that the evidence of Professor Ward should be
preferred and the Plaintiff should not be awarded damages for this item."

432 I am not satisfied on the evidence that the three hoists claimed will need replacement as regularly as is suggested. I am not satisfied that a Motomed is reasonably required given the level of care and physiotherapy allowed for. I am not satisfied of the need for a profiling bed. I have already rejected the need for a sleep system. I allow £40,000 under this head.

Suction machine

433 The plaintiff's claim under this head is particularised as follows:
"Suction Machines
Finally, there is also evidence that the Plaintiff has and needs a Suction Machine and a Portable Suction machine. A further modest allowance is claimed for this equipment and the possibility the Plaintiff may need alternate other equipment and aids in the future.
Total: £10,000.00".

434 The defendants submit as follows:
"Suction Machine
9.206 The Defendants object to the claim for a suction machine and portable suction machine set out in the Particulars. This claim is not particularised and no costs are given. These devices are stated to be based upon evidence of Ms Parry, however, it does not appear in Ex P52, nor is it in her testimony.

9.207 Further, the Defendants submit that any such device ought be prescribed by
the Plaintiff's doctor."

435 Irrespective of whether or not such machines should be prescribed by a doctor I have no basis for an award under this head and none is made.

Future miscellaneous

436 The plaintiff's claim under this head is particularised as follows:
"Future Miscellaneous
The plaintiff's injuries have led to an increased need for washing, towels, linen, toiletries, domestic cleaning products and the like. The plaintiff claims the reasonable costs for these increased needs. The plaintiff claims the sum of £156.70 per month (£1880.40 per year) for life .

The Plaintiff claims £1880.40 x 20.6, discounted at 3% the claim is £29,110.00
Total: £29,110.00".

437 The defendants submit as follows:
"Miscellaneous
9.317 On p 28 of the Particulars, an ambit claim is made for reasonable costs of washing, clothes, linen, toiletries, domestic cleaning products and the like. The Defendants object to an ambit claim and the failure to particularise it.
115 No 35/2016

9.318 Further, on pp 25 and 27 of the Particulars the Plaintiff claims global awards
for future needs.
9.319 The Defendants object to any in globo award. Damages are once and for all and if the Plaintiff's condition had not stabilised, sufficient for all heads of damage to be particularised, the matter should not have been set down for trial until each future need could be properly identified and quantified.
9.320 Further, the Defendants submit that various of the claims were capable of assessment but the Plaintiff chose not to tender evidence of the need and the costs. The Defendants object to an in globo award on that basis."

438 This claim mirrors the past claim for "toiletries and sundries". Adjusted to a life expectancy of 15 years I allow the sum of ₤22,531.07.

Workers compensation

439 The defendants have paid worker's compensation payments to and for the plaintiff. The quantum of the appropriate reduction to the damages I have assessed as set out below is ₤319,213.

Cost of fund management

440 The plaintiff's claim under this head is particularised as follows:
"Cost of Fund Management
The Plaintiff also claims the cost of managing the fruits of this action for the duration of her life. The fund for this purpose includes the additional sum sought for managing the further sum recovered for the cost of managing the fund pursuant to the principles in Gray v Richards [2014] HCA40. The Plaintiff claims an additional [8.365%] under this head".

441 The defendants submit as follows:
"Funds Management
9.328 The Plaintiff's expert, Mr Sands, agreed that 1.2% was in the appropriate range for the cost of ongoing charges for managing the fund and the Defendants submit that is the appropriate rate on which to calculate funds management costs … ."

442 The amount allowed under this head is ₤477,714.60.

Conclusion

443 For these reasons, there will be judgment for the plaintiff and subject to hearing counsel I assess the plaintiff's damages in the sum of £6,970,426.00 calculated as follows:

Pain and suffering and loss of amenities £250,000.00
Past expenses £194,146.61
Past attendant care £44,056.00
Past gratuitous care £224,397.00
Past lost earning capacity £65,000.00
Future lost earning capacity £708,489.18
116 No 35/2016

Lost superannuation £145,285.89
Past deputy costs £22,852.11
Future deputy costs £225,000.00

Future attendant care £3,697,737.80

Future accommodation costs £757,827.35
Future therapy £208,043.20
Tilt table £55,147.29

Neurological rehabilitation £3,647.30
Powered wheelchair £10,089.91
Head rest £6,973.16
Tobii Eyegaze assessment £18,002.40
Therapeutic table £2,959.08
Uncosted future therapies £20,000.00
Future transport £47,184.62
Future miscellaneous costs £22,531.07
Domestic cleaning £42,560.11
Further equipment £40,000.00

Sub-Total £6,811,927.60

Less workers compensation ₤319,213.00

Total ₤6,492,714.60

Plus costs of fund management ₤477,712.00

Total ₤6,970,426.00

Plaintiff:	K Read SC and T Cox
Defendants:	C Bridge SC and A G Melick SC

Plaintiff:	Slater + Gordon Lawyers
Defendants:	Hicksons Lawyers

(b)	provide facilities of a prescribed kind for the welfare of employees at any workplace that is under the control or management of the employer; and
(c)	provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.

•	Failed to provide (iii) plant in a safe condition – the quad bike was not in a safe condition both because of its rear brakes, the deflated right rear tyre and also due to the poor lateral stability of the bike .
•	Failed to provide (c) any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.

•	Betts v Whittingslowe (1945) 71 CLR 637 at 649;
•	Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420- 421;

•	Chappel v Hart (1998) 195 CLR 232 at 237-238, per Gaudron J; at 247- 248, per McHugh J; at 257-259, per Gummow J; at 272-273, per Kirby J;
•	Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 per Gaudron J; at 312 per Callinan J;
•	Rosenberg v Percival (2001) 75 ALJR 734 at 749-751 per Gummow J.'

(a)	assessment of visual calibration;
(b)	assessment of accuracy of visual focusing and tracking;

9.201	The Defendants agree that the Plaintiff should have a shower chair.
9.202	The Defendants submit that the following costs are appropriate:

Lost superannuation	£145,285.89
Past deputy costs	£22,852.11
Future deputy costs	£225,000.00
Future attendant care	£3,697,737.80
Future accommodation costs	£757,827.35
Future therapy	£208,043.20
Tilt table	£55,147.29
Neurological rehabilitation	£3,647.30
Powered wheelchair	£10,089.91
Head rest	£6,973.16
Tobii Eyegaze assessment	£18,002.40
Therapeutic table	£2,959.08
Uncosted future therapies	£20,000.00
Future transport	£47,184.62
Future miscellaneous costs	£22,531.07
Domestic cleaning	£42,560.11
Further equipment	£40,000.00
Sub-Total	£6,811,927.60
Less workers compensation	₤319,213.00
Total	₤6,492,714.60
Plus costs of fund management	₤477,712.00
Total	₤6,970,426.00

[2016] TASSC 35

15 July 2016