Renehan v Leeuwin Ocean Adventure Foundation Ltd

[2006] NTSC 4

Renehan v Leeuwin Ocean Adventure Foundation Ltd & Anor
[2006] NTSC 4

PARTIES: TRACEY ANNE RENEHAN by her litigation guardian GERALDINE RENEHAN

v

LEEUWIN OCEAN ADVENTURE FOUNDATION LIMITED
(ACN: 009 105 677) and COMMONWEALTH OF AUSTRALIA

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: No 33 of 1998 (9803191)

DELIVERED: 13 January 2006

HEARING DATES: 21-24 & 29-31 March; 1, 4-8, 11-15, 18-22, 26-29 April; 3-6, 9-12 May; 2-31 August; and 1-2 September 2005

JUDGMENT OF: MILDREN J

CATCHWORDS:

CONTRACT – alleged contract between parties when there was already existing a contract between one party and third party over same subject matter – whether contract existed between parties – whether there was consideration
CONTRACT – intention to create legal relations – factors relevant to be considered – objective circumstances
CONTRACT – repudiation by plaintiff – denial of existence of contract – pre-existing frustration of contract – whether plaintiff can sue on contract – whether approbating and reprobating
DAMAGES – assessment of damages for past gratuitous services – parents of injured plaintiff in receipt of carer’s pension – whether plaintiff entitled to award
DAMAGES – assessment of damages for personal injuries – claim for lost earning capacity – odd lot – evidential burden on defendants to show extent of residual capacity to earn income
DAMAGES – assessment of damages for personal injuries – fund management – plaintiff’s need due to pre-existing intellectual deficit and not caused by accident – whether recoverable
DAMAGES – assessment of damages for personal injuries – loss of Social Security benefits – whether claimable – whether benefits to be received after injury to be taken into account
DAMAGES – assessment of damages for personal injuries – scarring – presumption of loss – award for pain and suffering and loss of amenities
EVIDENCE – contract – evidence admissible to prove aim of the contract
EVIDENCE – evidence of plaintiff not directly contradicted – other rational inference open – whether evidence of admission – whether evidence must be accepted
EVIDENCE – standards published by Australian Standards Association – whether admissible
NEGLIGENCE – breach of duty of care – plaintiff fell whilst climbing mast on sailing ship – no instruction on how to climb mast – safety belt not correctly fastened
NEGLIGENCE – causation of loss – alleged breach of duty of care by Commonwealth – Commonwealth selected plaintiff to go on training voyage – whether alleged breach of duty caused loss – whether Commonwealth liable for negligence of third party
NEGLIGENCE – contributory negligence – failure to properly secure safety belt – claims in contract and in tort – whether any contributory negligence – extent of apportionment
NEGLIGENCE – damages – causation of loss – safety belt incorrectly fastened – whether plaintiff’s injuries caused by the fall
NEGLIGENCE – duty of care – obvious risk – identification of relevant risk – plaintiff fell whilst climbing main mast on sailing ship – safety belt incorrectly fastened
NEGLIGENCE – plaintiff fell whilst climbing mast on sailing ship – safety belt incorrectly fastened – warning given that belt will unravel if incorrectly fastened – whether warning sufficient response to the risk
PRACTICE AND PROCEDURE – plaintiff suing in tort or alternatively contract – plaintiff denies existence of contract – whether approbating and reprobating – whether pleading permitted by Rules
TRADE PRACTICES – contract for supply of services – whether implied warranty services will be provided with due care and skill – whether implied warranty co-extensive with promise implied by common law – whether implied term breached
TRADE PRACTICES – contract for the supply of services – clauses limiting extent of liability – whether clauses void

Disability Services Act 1986 (Cth) s 23(2)(a)
Law Reform (Miscellaneous Provisions) Act (NT) (Act No. 12 of 2001), s 21A(3)
Social Security Act 1947 (Cth)
Social Security Act 1991 (Cth) s 17(1), s 17(2), s 17(3)(b), s 17(8), s 1170, s 1178, s 1179, s 1184K
Supreme Court Act (NT) s 84
Supreme Court Rules O.13.09(1)
Trade Practices Act 1974 (Cth) s 4(1)(a), s 4B, s 4B(2), s 4B(2)(d)(i), s 68, s 74(1)

Carter, J.W. and Harland, D.J., Contract Law in Australia, 3rd ed, Butterworths, Sydney, 1996
Cheshire and Fifoot, Law of Contracts, 7th Aust ed, Butterworths, Sydney, 1997
Fleming, The Law of Torts, 9th ed, Law Book Company, Sydney, 1998
Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, Sydney, 2002
Phipson on Evidence, 13th ed, Sweet & Maxwell, London, 1982

Applied
Astley v Austrust Ltd (1999) 197 CLR 1
Batchelor v Burke (1981) 35 ALR 15
Bus v Sydney County Council (1989) 167 CLR 78
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Ermogenous v Greek Orthodox Community of South Australia Incorporated (2001) 209 CLR 95
Griffiths v Kerkemeyer (1977) 139 CLR 161
Haines v Bendall (1991) 172 CLR 60
Husher v Husher & Anor (1999) 197 CLR 138
Kars v Kars (1996) 187 CLR 354
Lee Transport Co Ltd & Anor v Watson (1940) 64 CLR 1
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd and Anor (1990-1991) 171 CLR 506
Modbury Triangle Shopping Centre Pty Limited v Anzil and Another (2000) 205 CLR 254
Petroleum and Chemical Corporation (Aust) Ltd v Morris (1973)1 ALR 269
Planet Fisheries Pty Ltd v La Rosa & Anor (1968) 119 CLR 118
Robinson v Davison (1871) LR 6 Ex 269
Scarf v The State of Queensland and Anor (White J, Supreme Court of Queensland, unreported 30/10/1998; BC9805715)
Shorey v PT Ltd (As Trustee for McNamara Property Trust) (2003) 77 ALJR 1104
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
The Nominal Defendant v Gardikiotis (1995-1996) 186 CLR 49
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129
Turley v Saffin (1975) 10 SASR 463
Van Gervan v Fenton (1992) 175 CLR 327
Wicks v Union Steamship Company of New Zealand Ltd (1933) 50 CLR 328
Wyong Shire Council v Shirt (1979-1980) 146 CLR 40

Referred to
Blundell v Musgrave (1956) 96 CLR 73
Connell-McDowell v Bleechmore [2000] VSCA 34 (unreported)
Fox v Wood (1981) 148 CLR 438
Graham Barclay Oysters Pty Ltd & Anor v Ryan and Ors (2002) 211 CLR 540
Hadley v Baxendale (1854) 9 Exch 341
Hardy v Gillette [1976] VR 392
Henderson v Merrett Syndicates [1995] 2 AC 145
Holman v Holman (1964) 81 W.N. (Pt. 1) (NSW) 374
Liftronic Pty Ltd v Unver (2001) 75 ALJR 867
Lissenden v C.A.V. Bosch Ltd (1940) AC 412
McLean v Tedman & Anor (1984) 155 CLR 306
Redding v Lee (1982) 151 CLR 117 at 146
Repatriation Commission v Reid (1984) 54 ALR 157
Richards v Jager [1909] VLR 140
Rosecrance v Rosecrance (1995) 105 NTR 1
Slatterie v Pooley (1840) 6 M&W 664
Smith v Leurs & Ors (1945) 70 CLR 256
The Australian Coarse Grains Pool Pty Ltd v The Barley Marketing Board (1989) 1 Qd R 499
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
United Australia Ltd v Barclays Bank Ltd (1941) AC 1 at 30
Veselinovic v Thorley [1988] 1 Qd.R. 191
Willett v Futcher (2005) 221 ALR 16
Wylie v The ANI Corporation Limited (2002) 1 Qd R 320

Followed
Arthur Robinson (Grafton) Pty Ltd & Anor v Carter (1968) 122 CLR 649
Ball v William Hunt & Sons Ltd [1912] AC 496
Banque Des Marchands De Moscou (Koupetschesky) v Kindersley and Another [1951] 1 Ch 112
Cardiff Corporation v Hall [1911] 1 KB 1009
Carlill v The Carbolic Smoke Ball Co [1892] 2 QB 484
Dabinett v Whittaker (1989) 2 Qd.R. 228
Froom & Ors v Butcher (1976) 1 QB 286
Giner v Public Trustee and Anor (1991) 105 FLR 410
MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125
Marsland v Andjelic(1993) 31 NSWLR 162
Muscat v Statewide Industries Pty Ltd (1988) 1 Qd.R. 637
Neal v Bingle [1998] QB 466
Rosecrance v Rosecrance (1998) 8 NTLR 1
Wann v Fire and All Risks Insurance Company Limited (1990) 2 Qd.R. 596

Distinguished
Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695
Goldfinch v Scannell [1993] PIQR Q143
Mulligan v Coffs Harbour City Council [2005] HCA 63
Thompson v Woolworths (Q’land) Pty Ltd (2005) 79 ALJR 904
Vairy v Wyong Shire Council [2005] HCA 62
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65

Not Followed
Harth v Schick (1992) 2 Qd. R. 101
Matheson v Union Assurance Society Ltd and Grosser [1960] SASR 345
Pasminco Austalia Ltd v Gasu (Tas F.C., 5/7/1996, unreported)
Sorenson v Woolnough [1989] Tas.R. 315 (NC 15)
Stoward v Joron Pty Ltd (In Liquidation) (21/12/1994, unreported, Crawford J, BC9400508)

REPRESENTATION:

Counsel:
Plaintiff: M. Maurice QC with P. Barr QC
First Defendant: J. Reeves QC with G. Macnish
Second Defendant: L. Silvester with M. Grant

Solicitors:
Plaintiff: Cridlands
First Defendant: Ward Keller
Second Defendant: Australian Government Solicitor

Judgment category classification: B
Judgment ID Number: MIL 06364
Number of pages: 162

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Renehan v Leeuwin Ocean Adventure Foundation Ltd & Anor
[2006] NTSC 4
No. 33 of 1998 (9803191)

BETWEEN:

TRACEY ANNE RENEHAN by her litigation guardian GERALDINE RENEHAN
Plaintiff

AND:

LEEUWIN OCEAN ADVENTURE FOUNDATION LIMITED (ACN: 009 105 677)
First Defendant

AND

COMMONWEALTH OF AUSTRALIA
Second Defendant

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 13 January 2006)

Index Page
1. Introduction 3
2. Background facts 6
3. The fall and its cause 23
4. Why the belt unravelled 29
5. The plaintiff’s claim against the first defendant in contract and tort 32
6. Was there a binding agreement between the plaintiff and LOAF? 34
7. The Trade Practices Act 40
8. Were conditions 9-12 of the contract void? 49
9. Was the implied term breached? 50
10. Contributory negligence of the plaintiff 66
11. The plaintiff’s claim against the second defendant in contract and tort 68
12. Damages for pain and suffering and loss of amenities 72
12.1 Physical injuries 72
12.2 Mental injury 86
12.3 Disabilities consequential upon injury 96
12.4 Award for pain and suffering and loss of amenities 102
13. Interest on post non-economic loss 103
14. Loss of earning capacity to the date of trial 104
15. Interest on past loss of earning capacity 119
16. Compensation for loss of Social Security payments 119
17. Future loss of earning capacity 127
18. Past Special Damages 130
18.1 Hospital, medical, hydrotherapy, orthotic and allied treatment 130
18.2 Equipment and building modifications 133
19. Interest on past special damages 135
20. Future special damages 136
20.1 Knee replacement procedures 136
20.2 Future physiotherapy, hydrotherapy and gastric banding 137
20.3 Orthotics/OT aids 139
20.4 Future pharmaceuticals 140
20.5 Case management 140
20.6 Home modifications 146
20.7 Future transport and related costs 147
20.8 Transport costs – scooter and van 148
21. Future care costs 149
22. Loss of retirement benefits past and future 151
23. Wilson v McLeay Damages 152
24. Past gratuitous services 154
25. Interest on past gratuitous services 159
26. Fund management 159
27. Summary 161

1. Introduction

[1] This is an action for damages for personal injuries incurred by the plaintiff as the result of her falling some 16 metres from the futtock shrouds of the main mast of the sail training ship Leeuwin on 12 June 1996.

[2] The first defendant, Leeuwin Ocean Adventure Foundation Ltd (LOAF) is and was the owner and operator of the Leeuwin. The action against LOAF is brought in tort. Alternatively, the plaintiff’s action against LOAF is for damages for breach of contract. The contract upon which the plaintiff relies is an agreement allegedly made between the plaintiff and LOAF and contained in a “Reservation Form” dated 13 May 1996 (the Reservation Form).

[3] The action in contract is brought in the alternative because the plaintiff denies the existence of any binding agreement between her and LOAF.

[4] The second defendant is sued in respect of the alleged negligence of the servants of its department, the Department of Employment, Education, Training and Youth Affairs (DEETYA), and its predecessor, the Department of Employment, Education and Training (DEET). It is alleged that DEETYA owed to the plaintiff a duty to take reasonable care to ensure that the plaintiff was not exposed to danger or risk of injury whilst on the Leeuwin. This duty is alleged to have arisen by virtue of the circumstance that DEETYA entered into a contract with LOAF for the latter to provide sail training aboard the vessel during a 10 day voyage departing Darwin on 10 June 1996 to those persons who were in receipt of benefits under the Social Security Act 1991 (Cth) and who were selected by the Department’s case managers to embark upon the voyage. It is alleged that the plaintiff was one of the persons so chosen and that the second defendant knew or ought to have known, inter alia, that the plaintiff was not capable of climbing the mast of the vessel without unreasonable risk of falling and could not be relied upon to fasten her safety belt in the appropriate manner. The plaintiff alleges that the Commonwealth’s servants or agents breached that duty which caused or contributed to the injuries she suffered.

[5] Alternatively, the plaintiff has sued the second defendant for damages for breach of contract. It is alleged that the plaintiff entered into an agreement on 30 May 1996 with the second defendant which contained an implied term that, whilst participating on the voyage, the second defendant would ensure that all appropriate steps were taken to ensure her safety, having regard to her physical and intellectual capabilities. It is alleged that the second defendant breached the implied term which caused or contributed to the injuries she sustained.

[6] In its defence, LOAF has denied that it was negligent, or that its negligence caused the injuries which the plaintiff suffered. Further, LOAF contends that the plaintiff has repudiated the Reservation agreement and is now unable to rely upon it as the repudiation has been accepted by LOAF. Notwithstanding the termination of that agreement, LOAF seeks to rely on certain clauses in the Reservation agreement which limit its liability for any damages which the plaintiff has sustained. Alternatively, LOAF alleges that the plaintiff’s injuries were due to her own contributory negligence. Further matters relied upon by way of defence to the plaintiff’s claim is a claim for indemnity for breach of warranties contained in a Medical Information Form provided by the plaintiff to LOAF; and a claim that any damages to which the plaintiff is entitled should be reduced because the plaintiff has failed to mitigate her loss.

[7] The second defendant, in its defence, denies the existence of any binding agreement between it and the plaintiff; denies the existence of any implied term of the agreement; denies that it owed a duty of care to the plaintiff; and pleads contributory negligence on the part of the plaintiff.

[8] By way of Reply to LOAF’s Defence, the plaintiff denies that she was on board the vessel pursuant to the Reservation agreement; says that any such agreement did not contain the alleged terms limiting LOAF’s liability; says there was no consideration for the alleged agreement; says that there was no intention to create legal relations in contract between her and LOAF; claims that it would be unconscionable for LOAF to rely upon the terms limiting LOAF’s liability; and claims that the alleged terms limiting LOAF’s liability breached s 68 of the Trade Practices Act (Cth) and are void.

[9] So far as the defendants are concerned, a contribution notice has been issued by the Commonwealth against LOAF. It is unnecessary to dwell upon its terms or the terms of LOAF’s Defence and Counterclaim thereto at this time.

2. Background facts

[10] Before turning to decide any of the issues relating to liability, it is necessary to make some factual findings relevant to questions of both liability and quantum which form the background to a number of the issues in this case.

[11] The plaintiff was born on 4 August 1966 at the Royal Northshore Hospital, Sydney. According to the plaintiff’s mother, Geraldine Renehan, it was a difficult birth with a forceps delivery. A neuropsychologist, Mr Mark Reid, concluded in 2002 that the plaintiff had been “intellectually handicapped” since birth. The level of her handicap was described by Mr Reid as “below average intellectual ability, at the bottom of the ‘borderline’ range”. Ms J Delahunty, a psychologist, reached a similar conclusion in March 2000.

[12] The plaintiff’s father died when she was only two years of age. For a period, Mrs Renehan raised the plaintiff and her younger brother on her own. She eventually married again, but this marriage was short lived and resulted in divorce. At this time, Mrs Renehan and her second husband were living in Mandurah, Western Australia. After her divorce, Mrs Renehan met her present husband, Brian Renehan. After living together for a number of years, they became married in 1988. They lived in Western Australia at Mandurah until they moved to Alice Springs in December 1985. By this time, the plaintiff had met her future husband, Gordon Ronald Barndon. The plaintiff and Mr Barndon married in October 1987. By this time, the plaintiff and her husband had moved to Lockridge, Western Australia.

[13] On 12 April 1990, the plaintiff gave birth to her son, Gordon Jnr, at Swan District Hospital. On 19 April 1990, the plaintiff was transferred to Heathcote Hospital where she was admitted to the Psychiatric Unit. She was diagnosed as having a bi-polar affective disorder with psychotic features. She received anti-depressants, major tranquillisers and lithium, but did not respond well until she had a course of electro-convulsive therapy (ECT). She was discharged on 16 June 1990, but relapsed and was re-admitted on 26 June 1990. She received further ECT and was discharged on 15 August 1990. Shortly thereafter, the plaintiff told her husband that she wanted to go to Alice Springs for a holiday and stay with her parents. It was arranged that she would be collected by her mother. The baby remained with Gordon Barndon who had the support of his parents.

[14] The plaintiff did not return to live with her husband. In 1990 or 1991, proceedings were commenced between the plaintiff and her husband, which resulted in divorce in October 1991. Custody of the child was granted to Mr Barndon. There were no immediate arrangements made for access, although consent orders for access were made by the Family Court of Western Australia on 5 May 1994.

[15] According to Geraldine Renehan, when the plaintiff arrived in Alice Springs in August 1990, she was in a trance-like state where she needed constant direction and reminding in order to do things for herself and during the plaintiff’s “recovery period” which lasted for about two years, it was necessary to re-teach the plaintiff many of her life-skills, such as how to use money and how to cook and prepare a simple meal. During this period she was taking certain prescribed drugs under the care of her general practitioner, Dr Mark Young, to control her condition, but she kept getting relapses and was referred to a psychiatrist, Dr Kyaw, who changed her medication to Fluphenazine 3 milligrams at night. She saw Dr Kyaw on a number of occasions between 5 December 1990 and 5 May 1992. In May 1992, she returned to the care of Dr Young who thereafter maintained her condition on a low dose of Fluphenazine. She also saw Dr Kyaw again on three occasions between September and November 1992, who noted that she was stable. There were no further relapses in her condition prior to her accident on 12 June 1996.

[16] So far as the plaintiff’s schooling is concerned, the plaintiff had learning difficulties which her mother noticed at the time she was attending primary school. After she left primary school, she attended a special class at Pinjarra High School because she had difficulty with learning. Subsequently her parents moved her to Mandurah High School.

[17] When she was about 14, the plaintiff became interested in horses and worked with a friend cleaning stables for a few weeks.

[18] The plaintiff left school about half way through Year 10 or towards the end of Year 10 when she was about 15 years old to go to Alice Springs with a friend, Leanne Miller, whose parents had a cleaning business in Alice Springs. She was employed by the Millers for a short period cleaning offices and public buildings. After that, she returned to Mandurah to live with her parents. This I find was in about 1982. Thereafter she was in receipt of unemployment benefits and had irregular work as a kitchen hand at the Atrium Hotel in Mandurah and as a stable hand. It was whilst working as a stable hand for Pateman’s at Mandurah that she met Gordon Barndon. After she started living with Gordon, she gave up her work as it was too far to travel each day, although she did do volunteer work at a centre for disabled children in Coolbinia, just north of Perth, for a day or so each week. This lasted for about three months. Apart from volunteer work, the plaintiff was not employed during the period of her relationship with and marriage to Mr Barndon. She did, however, do a 17 week course conducted by the Education Department of Western Australia resulting in a Childcare and Development Certificate which she obtained in November 1986. On 26 September 1994, after she returned to Alice Springs, she also obtained a Senior First Aid Certificate from St John Ambulance Australia.

[19] After returning to Alice Springs in 1990 to live with her parents, the plaintiff was in receipt of benefits under the Social Security Act 1991 (Cth). After she recovered from her psychiatric illness, she began casual employment, childminding and doing some ironing work. The plaintiff’s evidence on this subject relating to the period during which she did this work is very confusing. It was over a period of some months, probably at least seven months: Ext P9, pp 31-33. She received between $5.00 and $10.00 an hour for childminding and she charged $20.00 to $30.00 a basket for ironing. Apart from that, the plaintiff worked as a volunteer at the Gap Neighbourhood Centre doing childcare work for a couple of mornings a week.

[20] In late 1994, the plaintiff, and Mr and Mrs Renehan moved back to Mandurah. One of the reasons why the plaintiff wanted to return to Mandurah was to exercise her access rights to her son. Apart from assisting in some cleaning work at a caravan park in exchange for free rent, she was unemployed during this time. In 1995, she undertook some courses at the Metropolitan College of TAFE at Mandurah and obtained some certificates in a course “General Education for Adults (Foundation)” in Oral Communications Level 1, Reading and Writing Level 1, General Curriculum Options Level 1 and Numerical and Mathematical Concepts Level 1 in December 1995. Mr and Mrs Renehan returned to Alice Springs to live in mid 1995. The plaintiff lived with Brian Renehan’s mother until the latter half of 1995 when she also returned to Alice Springs.

[21] In December 1995 the plaintiff secured some work with St Mary’s Family Services. She was employed on a casual basis mainly working with disabled children following an interview with Ms June Clothier on 30 November 1995. Ms Clothier was the Programme Manager of Adult Services of St Mary’s, now known as Anglicare. During the period thereafter until she went to Darwin in June 1996 to join the Leeuwin, the plaintiff continued to work on a casual basis for St Mary’s. An analysis of St Mary’s records indicates that, during the period between December 1995 and June 1996, the plaintiff worked a total of 216.5 hours at an hourly rate of $14.33 plus extra allowances for occasional broken shifts and sleepovers.

[22] St Mary’s Family Services had accommodation at three houses located in the community as well as houses for children located on campus and known as Blue House and Grey House. Most of the plaintiff’s employment was at Blue House, which was a home for children with high-level needs. Most of these children were wheelchair bound and non-vocal with multiple physical and intellectual disabilities. There were five or six children at Blue House. Each morning the children had to be gotten out of bed, dressed, breakfasted and made ready for school. This involved helping them to brush their teeth, comb their hair, giving medication as directed and assisting them onto the school bus. Sometimes the plaintiff rode with them on the bus to help them off the bus when it arrived at school. The plaintiff would then clean the house and attend to cleaning, washing and food preparation duties. When the children returned in the afternoon she would assist the children off the bus, get afternoon tea, prepare and serve the evening meal and assist getting them ready for bed. The plaintiff usually worked from 6:30 to 9:00 am and from 3:30 to 8:00 pm. The plaintiff worked with another worker on each shift. There was a fair amount of heavy lifting involved.

[23] The plaintiff did not have a driver’s licence and had never learned how to drive a motor vehicle. Her evidence was that she was told that she needed a licence to obtain permanent work at St Mary’s and so she obtained her Learner’s Permit and, through the Commonwealth Employment Service (CES), undertook driving lessons. She had not finished the driving course by the time of her accident and still does not have a driver’s licence.

[24] Because her work with St Mary’s was casual, she was still receiving Social Security benefits, particularly during the weeks she was not earning any income. Shortly after arriving in Alice Springs, the plaintiff attended at the offices of the CES where she was interviewed by Ms Tracey Nuske, who was then the case management liaison officer for Alice Springs. The plaintiff filled out a “Questionnaire for Client Classification Level Seminar” as part of what was called a “case management referral interview”. The plaintiff was then referred to a private company, Central Australian Group Training Company, for case management. However, that company ceased operations in Alice Springs and in March 1996, Ms Nuske became the plaintiff’s case manager. By this time Ms Nuske had been transferred to Employment Assistance Australia (EAA) which was part of DEET.

[25] Case management was intended to provide intensive assistance to long term and specially disadvantaged unemployed job seekers to find employment. The plaintiff qualified for case management as she had been unemployed and in receipt of unemployment benefits for longer than 12 months.

[26] On 20 February 1996, LOAF entered into an agreement in writing with the Commonwealth acting through DEET to provide “assistance” to persons referred to LOAF by the CES (i.e. DEET) and who were eligible for assistance under a Special Intervention Program administered by DEET. The agreement was varied by a further agreement in writing dated 18 April 1996. The Agreement as varied will be referred to as “the One Off Agreement”. Under the terms of that agreement the Department agreed to, in effect, charter the Leeuwin for two voyages, for what is described as a “set fee”. One of those voyages was to be a voyage departing Darwin on 10 June 1996 and arriving back in Darwin on 20 June 1996 (the voyage). It is not easy to find a clear statement in simple English of exactly what the parties contemplated, as the One Off Agreement does not appear to have been drawn up by a person with legal training, but rather has been cobbled together with various attachments all of which form part of the contract. However, it appears that the parties contemplated that persons referred to LOAF to join the voyage would act as volunteer trainee crew on the vessel and undergo sail training sufficient to enable them to sail the vessel themselves albeit under the supervision of the Leeuwin’s officers and crew members. The purpose of this was to help the trainees “mature and develop in areas of self-esteem, discipline, teamwork and good citizenship”. The Commonwealth saw this form of training as a means whereby long-term unemployed could gain self-esteem and self-confidence and experience team-building which it was hoped would better equip them to find employment. Information concerning the availability of the voyage was distributed to case managers, including Ms Nuske through her supervisor, Ms Tahnee Turner.

[27] On 26 March 1996, Ms Nuske sent to the plaintiff a letter and a brochure through the mail. Neither the original letter nor a copy of it can now be found. The substance of the letter was that it told the plaintiff that the voyage was coming up and that if she was interested, she should attend an information session to be presented in the Alice Springs DEET office. In late March 1996, the plaintiff had an appointment with Ms Nuske to attend a case management assessment interview. The plaintiff missed her appointment and a new appointment was arranged for 3 April 1996 which she did attend. The interview lasted about 50 minutes. An Assessment Form was completed and a “Case Management Activity Agreement” was signed by the plaintiff. These documents have not been located.

[28] The “information session” was held at DEET’s office in Alice Springs on 13 May 1996. It was attended by the plaintiff as well as a number of job seekers, by Ms Tahnee Turner and, at the commencement, by Mr Anthony Yoffa, who gave a brief introduction but then left. Mr Yoffa was DEET’s Alice Springs manager. He informed the job-seekers present that it was not compulsory for any of them to go on the voyage; it was being offered for those who were interested and anyone who was not interested was free to leave. He then introduced Mr Neil Burr, LOAF’s business manager who made a presentation to those assembled, including the playing of a video “Lure of the Leeuwin”, but with the volume down so that all could see the vision and listen to his explanation of it. At the end of the session the evidence of Mr Burr is that he conducted individual one-on-one meetings with each of the potential participants to enable them to ask questions. According to the plaintiff, there were two information sessions with Mr Burr, but I consider that she is mistaken and find that there was only one. The plaintiff was given a Participant Manual which contained information about the ship, the voyage, what to bring, basic nautical terms and information concerning knots and rope work.

[29] The plaintiff also completed and signed two other documents which were provided by LOAF: (1) a Medical Information Form dated 13 May 1996; and (2) a Reservation Form also dated 13 May 1996. It will be necessary to discuss these forms and the circumstances under which they were filled out in more detail later. Both forms were sent to LOAF and ultimately both forms were sent to the vessel and read by the Chief Officer (First Mate), Nicolas Cole.

[30] On 30 May 1996, the plaintiff signed a further Case Management Activity Agreement prepared by Ms Nuske, which related to her participation on the voyage. This is the “agreement” which, it is alleged, formed the contract between the plaintiff and the Commonwealth and upon which the plaintiff has sued. The plaintiff undertook to “attend, fully participate and complete the Leeuwin Ocean Adventure Foundation Ltd” from 8 June to 21 June 1996.

[31] The plaintiff travelled from Alice Springs to Darwin by bus, arriving on the afternoon of Sunday 9 June 1996. She embarked on the Leeuwin that evening. The cost of the bus fare and of the voyage was met by the Commonwealth.

[32] At the time of joining the Leeuwin the plaintiff was 29 years and 10 months old. She weighed 98 kilograms, more than about 35 kilograms above her ideal weight. She presented to most people as pleasant and easy-going. She had no previous experience on a sailing ship. She had never worked at heights. She had no experience of any kind with gymnastics or adventure activities. Ms Nuske described her as a “lovely person, overweight, easy to talk to”. Nothing in the interviews with her gave her any indication that the plaintiff was abnormally below average intellectual capacity. The plaintiff’s supervisor at St Mary’s, Ms Broadbent, described her as a “mild mannered person on the quieter side, but that she was not shy or unfriendly… she seemed very willing to please… she was very gentle natured… [She was]… good, competent, hardworking and genuine…” She agreed that the plaintiff was not usually her first choice when she needed a casual because she needed more direction and supervision than other casuals although, not a lot more. Ms Clothier, also from St Mary’s, noticed that the plaintiff did not have much education and required a lot of input from her supervisors “as she seemed to have some difficulty in learning new procedures”. Her former husband, Mr Barndon, was unaware that the plaintiff had “any brain impairments” and was shocked when told about this by the plaintiff’s mother. His evidence was: “I would not have known that Tracey had some intellectual impairment had Gerry (Mrs Renehan) not told me”. In the short time the plaintiff was on the vessel, her watch leader, Ms Bale said that the plaintiff did not appear to her to have an intellectual disability, although she was “quite heavy”, “a little unfit” and “did things slowly” and appeared to be “quite reserved and introverted” and “insecure” and lacking in confidence. The mate, Mr Cole, was told that the plaintiff was “not quite right” and “a bit slow”, as a result of which he spoke to the plaintiff. His impression of the plaintiff was that she appeared “quite immature, possibly a bit childlike… she came across as someone of about 13 or 14 years of age…” yet he thought her capable of coping with the program. Ms Ruth Sandow, an employee of DEET who went on board the vessel as a sail trainee as part of her duties with DEET, said that she had several conversations with the plaintiff on the voyage and that she did not think that the plaintiff was mentally slower than the other trainees – she appeared to be about average. She said that the plaintiff was “capable of holding a conversation at a reasonable level and she was quite talkative”. She was not cross examined on this part of her evidence. The second mate, Kristi McMullan, claims not to have spoken to the plaintiff before the accident, but remembers her as “standing back a bit” and “perhaps, shy or reserved and self-conscious”. Michael Baker, then an unemployed 16 year old from Tennant Creek, spoke to the plaintiff on a few occasions prior to the accident. He said that the plaintiff did not appear to be intellectually disabled or “slow” – she just seemed shy. On the basis of this evidence, I am unable to find that the plaintiff was obviously intellectually handicapped or of low intelligence to an observer who did not get to speak to her on more than a few occasions (nor did she give me that impression when giving her evidence), although some persons might have reached that, or a similar conclusion, as in the case of Mr Cole.

[33] On the first day on board the Leeuwin, the plaintiff’s evidence is that she went to see the nurse to give to her the plaintiff’s Fluphenazine tablets. She did this because, on one of the forms, it said that any medication should be given to the nurse. The Participant’s Manual States:
“If you are required to take prescription medicines whilst on board, please inform your Watch Leader on joining.”

[34] There is no other reference to medication in any of the documents which LOAF provided to the plaintiff. The plaintiff says that she told the nurse that the tablets were for depression, and that the nurse told her to keep them. At either this time, or some time later, the plaintiff says that she asked the nurse for sea sickness tablets, but the nurse refused to give her any because they should not be taken with Fluphenazine. The purpose of leading this evidence was to establish that LOAF knew that the plaintiff was not medically fit to climb the mast without close monitoring. There were in fact two trained nurses on the Leeuwin, viz., the second mate Kristi McMullan, and the purser, Donna Andrews. According to Ms McMullan’s evidence, she never spoke to the plaintiff prior to her fall. Ms McMullan maintained in her oral evidence that she did not discuss medication with the plaintiff. Ms Andrews, in her statement, says she met the plaintiff on the first day of the voyage and had quite a lot to do with her thereafter. She remembered her because she was a “very large girl” and there may have been only one other girl of her size on board. She claims that the plaintiff came to see her initially about sanitary napkins, but also that the plaintiff told her that she “had some medication which she did not declare on the forms… I was not entirely familiar with the name of the medication, but I thought it sounded like a drug from the anti-depressant family”. Ms Andrews says that she is certain that she did not tell the plaintiff to keep taking the medicine herself, that she was certain that she would have informed the first mate, Nick Cole of what she had been told and that she is certain that she would have instructed the plaintiff to see Mr Cole and give him the medication. In cross examination she agreed that she would not have wasted any time telling Mr Cole about it, but in my opinion Ms Andrews has no memory of informing Mr Cole or of telling the plaintiff to speak to Mr Cole and give him the medication and is relying on her practice. Mr Cole was not cross examined on whether or not Ms Andrews told him about the medication, and in his statement said that he could not recall whether he was told about this or not, but that if he was, he would have advised Captain Gebbie. According to Captain Gebbie, he was not informed by Nick Cole that the plaintiff was taking any medication. Exhibit L27 was tendered to support Captain Gebbie’s evidence as contemporaneous notes relating to which trainees had medical problems, but in cross examination by Mr Silvester, Captain Gebbie was forced to concede that the notes were made after the plaintiff’s accident. As to the blue marks on the exhibit Captain Gebbie had no recollection of when they were placed there. Captain Gebbie’s evidence concerning the provenance of Exhibit L27 and when and why he made markings on that document were not convincing.

[35] I find that the plaintiff did tell the purser, Ms Andrews, that she was taking Fluphenazine tablets, and that Ms Andrews thought these tablets were an anti-depressant. I am unable to find whether Ms Andrews told Mr Cole, or he told Captain Gebbie, or not. Clearly, on the evidence this information should have been passed on to Mr Cole and Captain Gebbie, and if it had been passed on, more information elucidated from the plaintiff or by radio with LOAF to ascertain for what condition the drug was prescribed. This should have triggered some response from the Master of the Leeuwin who ought to have made enquiries about it, and perhaps kept the plaintiff under stricter supervision until the matter was clarified. However, in the result, I do not consider that this oversight was causative of the plaintiff’s injuries. There was no evidence to suggest that the plaintiff’s fall was in any way connected with the fact that she was taking Fluphenazine. The causes of the accident are to be found in other factors: see below.

[36] When the trainees embarked they were divided into watches. The plaintiff joined the red watch. Her watch leader was Imogen Bale. Ms Bale had been on numerous voyages on board the Leeuwin, but this was the first time she had been selected to be a watch leader. Amongst her duties, Ms Bale was responsible for demonstrating to the trainees on her watch how to carry out the tasks allocated to the watch, including such things as setting sails, manning lines, and climbing aloft, and ensuring that these tasks were carried out safely. Ms Bale was a member of the crew as a volunteer, chosen because of her previous experience. Only the Master and four others on board were permanent members of the ship’s company. Notwithstanding that Ms Bale was a volunteer, it was not suggested that LOAF was not responsible for any casual acts of negligence committed by her in the course of her duties. Clearly, Ms Bale was, when carrying out her duties as watch leader, LOAF’s agent.

[37] It was the responsibility of the purser, Ms Andrews, to give to each trainee a safety belt shortly after embarkation. It is not in contention that the plaintiff was issued with such a belt. The belt was similar to a linesman’s belt. I will describe the belt more fully later, but for the moment it is sufficient to note that the belt was worn around the waist, that it had what Captain O’Brien described as a three bar buckle, that the method of securing the belt to the waist was to pass the tail of the belt through the buckle and then double it back through the buckle, and that it had attached to it a lanyard at the end of which was a snap hook which could be used to fasten the belt to a secure part of the vessel. The evidence of Ms Bale was that on the Sunday night she told the members of her watch that they were required to wear their belts whenever they were on deck. On the Monday morning, at 8.00 am, all trainees were taken through an induction session by Kristi McMullan (neé Brooks) and she demonstrated to them how to double back the belt. After that, Ms Bale’s evidence was that she instructed her watch that if the belt was not doubled back, the belt would not hold if one were to fall. She then demonstrated again how the belt was to be done up and observed each member fasten his or her belt through the buckle, and she visually checked that each person had doubled back their belts correctly. After this, Ms McMullan came over to the red watch and went through the procedure again. She also visually checked that each belt was correctly done up. Ms Bale’s evidence was that after this, each member of the watch was rotated through a series of exercises which included climbing up the rigging until about one metre above the deck, clipping the karabiner (the metal clip on the end of the lanyard) onto a ratline, letting go of the ratline and leaning back into the safety belt, and allowing the belt to take their weight. Some of the members of the watch, but not the plaintiff then went aloft. Ms Bale said that she physically checked the safety belts of all of the trainees in the watch about four or five times during the first two days of the voyage to make sure they were doubled back

[38] There was also evidence from Nick Cole and from Kristi McMullan that Ms McMullan had dramatically demonstrated how easily the belt would come undone if not doubled back properly. Ms McMullan said that she also instructed all the trainees that the belt had to be worn outside of their clothing so that it could be easily seen, and that the trainees were instructed to check each other’s belts from time to time to ensure they were done up properly. The plaintiff’s evidence was largely consistent with these accounts relating to the instructions concerning the belt. I find that the plaintiff was told how to fasten the belt properly, that the importance of doubling back was impressed upon her, and the she well knew these matters prior to her fall.

[39] The next matter of significance occurred on Wednesday, 12 June 1996. By this time the vessel was no longer in the safety of Darwin Harbour. The weather was fine, with little wind for sailing. The vessel had stopped her engines at 7.15 am and was thereafter under sail. According to the ship’s log, at 0800 hours the vessel was located at a position 12°30’ S, 129°39.4’ E. The course of the vessel was 270 degrees i.e. westerly. The plaintiff’s fall occurred at 8.45 am.

3. The fall and its cause

[40] It is not in contention that the plaintiff was not required to climb any of the masts to go aloft unless she was willing to do so. Nevertheless, it is obvious that unless most members of a watch were so willing, the work of furling or unfurling the sails could not have been done. There was considerable pressure applied to encourage all of the trainees to go aloft. On the night before her fall, the watch leader, Ms Bale, raised the matter with the red watch because on the Tuesday only two members of her watch had gone aloft, and the rest had shown no enthusiasm for this. She said to the group: “As a team, how do you feel with only half of our members going aloft?” Ms Bale said that it would be more of a team achievement if everyone in the watch went aloft. The two who went aloft that day encouraged the others, saying things like, “It is great once you get up there”. Up to this moment, the plaintiff’s evidence was that she was afraid of heights, knew that she did not have to climb the mast and had decided not to climb the mast. At some time, when is not clear, she changed her mind because she believed she could do it and she decided she wanted to overcome her fears.

[41] The following morning, the red watch was given the task of unfurling and setting the top sail on the main mast. Ms Bale moved her watch to the bottom of the main mast and said: “Who wants to come up with me?” Baker and Bennett were the first to volunteer; then the plaintiff said that she would like to do so as well. Ms Bale asked Bennett to support the plaintiff during her climb. She said to Bennett: “Would you like to go aloft as Tracey’s buddy?” She felt that the plaintiff needed a lot more support and “hand holding” than other trainees because she appeared to her to be insecure and lacking confidence.

[42] The main mast is, of course, the tallest of the three masts aboard the Leeuwin, and located roughly in the centre of the vessel. At a point 16.25 metres above the deck there are spreader crosstrees which support the top mast spreader shroud. There is also there a timber platform (the main mast platform) on which it is possible to stand, located between these crosstrees. There was no hole in the platform (called a “lubber hole” or “lubber’s hole”) enabling one to climb through the platform in order to climb on top of it. The lower shrouds on which one climbed the mast to reach the platform were anchored on the main mast at a point immediately below the main mast platform. Anchored to the outer end of the platform and to the main mast are shrouds known as the futtock shrouds. These shrouds angle back to the end of the platform at an angle of about 45 degrees. In order to climb onto the platform, it is necessary to climb up the ratlines of the lower shrouds until one reaches the futtock shrouds, and then climb the futtock shrouds until one is able to climb onto the end of the main mast platform. Whilst performing this manoeuvre one will be leaning backwards at an angle of at least 45 degrees to the mast. The futtock shrouds have ratlines or cross members on which one is able to place one’s hands and/or feet in order to perform the climb.

[43] According to the plaintiff, it was she and not Ms Bale who asked Bennett to climb with her, as she was afraid of going up. Bennett’s account was that she, Bennett, had a conversation with the plaintiff where she said that she would go up with the plaintiff, and she told Ms Bale that she would go up with Tracey after Ms Bale and Baker. Bennett denied being asked to climb as Tracey’s buddy, and that she had any responsibility for the plaintiff. Perhaps not much turns on this, but the fact is that there was no buddy system in place on the vessel at this time, although one has since been introduced. I think it is unlikely that Ms Bale would have used the expression “buddy”, but if she did, that expression meant nothing of significance to either the plaintiff or Bennett.

[44] It is to be noted that at this stage the plaintiff had been given little instruction on how to climb. She knew she was always required to have at least three points of contact with the shrouds or rat-lines, and that she needed to clip on her lanyard at eye-level whilst ascending. However, this was the first time the plaintiff had climbed any of the masts. She had received no instructions on how to climb the futtock shrouds to ascend onto the main mast platform. Before commencing her climb, the plaintiff said that no one physically checked to ensure that the strap of her safety belt had been properly doubled back through the buckle. According to Baker’s statement, he does not remember anyone checking the plaintiff’s safety belt before she commenced the climb. According to Ms Bale’s statement, she did not check this either. The plaintiff also says that no one checked her safety belt, except herself. Her evidence at trial was that the belt was on correctly, and that she checked it only minutes before she commenced the climb. I find that, apart from the plaintiff, no one else checked her safety belt either visually or physically before she commenced the climb.

[45] Ms Bale and Baker climbed up the mast first, followed by the plaintiff and Bennett. After Ms Bale reached the main top platform, she waited for Baker and instructed him to assist the plaintiff to climb the futtock shrouds. Ms Bale then went to locate the gasket knots on the main topsail and untied them, leaving Baker on the main top platform whilst the plaintiff and Bennett ascended the lower shrouds on the port side.

[46] To begin with, there was enough room on the lower shrouds for the plaintiff and Bennett to ascend together side by side, but as they got higher, the shrouds narrowed leaving insufficient room for them to continue and the plaintiff went ahead. According to the plaintiff she became very frightened as she got higher. Bennett’s account supports this because she recalls that the plaintiff seemed to get more nervous the higher they got. She said also that progress was slow and the she assisted with clipping on the plaintiff’s lanyard. At one stage the plaintiff stopped at a point below the futtock shrouds and said to Bennett that she wanted to go down, but Baker and others encouraged her to continue, saying things like “You can do it”. Bennett conceded that the plaintiff may have said she wanted to go down. She told the plaintiff to have a rest and go further if she felt comfortable. The plaintiff recalls resting for a short time. The mast was swaying only a little; this became more noticeable the higher one climbed. Despite feeling very frightened the plaintiff decided to go on.

[47] When the plaintiff reached the futtock shrouds she attached the clip of her belt onto a metal bar called the Jill-go bar which is a safety rail located on the top side of the main mast platform. However, as she did not know how to climb the futtock shrouds, she attempted to climb in between the mast and the futtock shrouds. Realising she could not climb onto the main mast platform this way Baker told her she must climb from the front of the shrouds. The plaintiff then attempted to climb on the outer side of the futtock shrouds. By this time Ms Bale had returned to the main mast platform next to Baker. According to Ms Bale, the plaintiff appeared to be confused and had taken about a minute from the moment she had attempted to climb in between the mast of the futtocks to the time she attempted to climb the outer side thereof, and had taken a lot of effort to get this far. The plaintiff was standing on the lowest ratline of the futtocks shroud with her hands on the first rung below the main mast platform. She said she was tired and could not hold on. Ms Bale said “Hold on Tracey, I’m coming to help you”. Baker saw her hand coming up, looking for the top rail, and then a moment later, the plaintiff fell backwards. Initially her fall was broken by the belt, but after a short time, probably no more than a second or so, she fell out of the belt, rolled and hit the deck knees first, approximately some 16 metres below. I find that she lost her grip because she was too tired to hang on any longer.

[48] After the fall, the plaintiff’s belt (Ext P23) was still left attached to the Jill-go bar from where it was later retrieved and tested by Crashlab, which is part of the Roads and Safety Transport Authority of New South Wales. According to the report of Crashlab dated September 1996 (see Ext P50), the safety belt was able to retain a body block weighing 136 kilograms through a drop height of 340 millimetres when the belt was correctly fastened by doubling back through the buckle, with only 5 millimetres of slippage measured in the webbing strap through the three bar buckle. If the belt was not doubled back, the safety belt came undone. The results of Crashlab’s report were not in contention between the parties.

[49] Counsel for LOAF, Mr Reeves QC, submitted that there were competing inferences of equal degrees of probability as to why he safety belt unravelled, that the plaintiff bore the onus of proving that her injuries were caused by the defendants’ negligence, that in all the circumstances the cause of the belt unravelling had not been established, and therefore no finding of negligence against the defendants was open on the evidence.

4. Why the belt unravelled

[50] Mr Reeves QC’s starting point is that the plaintiff’s unchallenged evidence is that, at commencement of the climb, the belt was correctly done up. Moreover the plaintiff said that she checked the belt only minutes before the climb to ensure that it was properly doubled back. The plaintiff was well aware of the consequences if she were to have fallen without the belt being doubled back. She had consistently maintained on a number of occasions since the fall that her belt was correctly done up. The belt was properly worn outside of her clothes so that anyone looking at the belt could see if it had been done up incorrectly. There was a system in place that each trainee was required to look out for others to see if their belts were done up incorrectly. Since no one noticed anything amiss, this lends support to the inference that the plaintiff’s evidence cannot be dismissed as mistaken. The plaintiff had, on previous days, worn her belt correctly and no one had had occasion to correct her, although this had happened to other trainees. In the 12 months before her accident she had lived independently of her parents in Mandurah, and had demonstrated that she was capable of taking care of her own safety and well-being. It was submitted that her evidence was credible, and as there was no evidence to the contrary, it should be accepted. Mr Reeves, in support of this submission, relied upon Holman v Holman (1964) 81 W.N. (Pt. 1) (NSW) 374 at 378 where Sugerman J, with whom Richardson and Macfarlan JJ agreed, said that where evidence is uncontradicted, it should in general be accepted, unless (1) it was improbable or unreasonable or (2) the judge disbelieved the witness based on the witness’ demeanour or manner, in which case the judge should disclose that this is the reason for not accepting the evidence. These principles have been applied many times, and are not in doubt: see Richards v Jager [1909] VLR 140 at 147 per Madden CJ; Hardy v Gillette [1976] VR 392; Repatriation Commission v Reid (1984) 54 ALR 157.

[51] However, in this case there clearly is evidence to show that the plaintiff’s evidence on this point does not have to be uncritically accepted without qualification. The Crashlab report shows that if the belt had been correctly fastened, it would not have become undone. The length of the lanyard, excluding the snap hook, was agreed to be 600 millimetres long (Transcript 292) and it was a further agreed fact that the belt was 132.5 centimetres long (Transcript 762). It is clear from the eye witness accounts, that when the plaintiff fell, the snap hook was attached to the Jill-go bar, which, at its lowest point, was level with the main mast platform. The plaintiff, when she fell was not even at eye level with the main mast platform and therefore could not have fallen more than 300 millimetres in those circumstances. The Crashlab report also shows that if the belt had been done up, there was only five millimetres of slippage measured. Given that the eyewitnesses claim that the plaintiff was momentarily suspended in her belt before she fell to the deck, one inference to be drawn is that the plaintiff had doubled back the belt through the buckle, but only by five millimetres or less; another is that she had not doubled back the belt at all. In either case the belt was not properly secured.

[52] There is no compelling reason why one or other of these inferences should not be drawn. It is quite possible that the plaintiff’s belief that she had done up the belt correctly was mistaken, and that due to her anxiety in approaching a climb about which she was clearly apprehensive, she failed to do it up properly. There is no evidence that anyone else checked the belt or even looked at the belt, so the fact that the belt was worn outside of her clothing does not assist. I am unable to draw the inference that anyone noticed that her belt was done up correctly. Plainly if that had been so, it is likely that evidence to that effect would have come to light in the investigations which followed shortly after the accident.

[53] Alternatively Mr Reeves QC submitted that the plaintiff’s evidence that she had her belt done up correctly must be taken to be true as an admission against her own interests, i.e. in her success in the claim. Reference was made to Slatterie v Pooley (1840) 6 M&W 664 at 668-669, where Parke B said: “Whatever a party says in evidence against himself… what a party himself admits to be true, may reasonably be presumed to be so.” (See also Phipson on Evidence, 13th Edition, par 19.04.) However, as Parke B went on to say, at 619:
“The weight and value of such testimony is quite another question. That will vary according to the circumstances, and it may be in some cases quite unsatisfactory to a jury.”

[54] When this statement was first made by the plaintiff, it was not a statement made by the plaintiff knowing what the test results on her belt were likely to show. I have no doubt the plaintiff honestly believes that the belt was done up correctly, but in my opinion the correct inference to be drawn is to the contrary.

[55] For the sake of completeness, I also reject the possibility that the belt came undone accidentally, it having been properly fastened. The evidence on that subject is that it could not be undone except by using two hands. There is no evidence that the plaintiff deliberately undid or loosened the belt during the climb. If she had done so, she would have needed to use both hands and this would have been plainly visible to Bennett and possibly Baker as well. Given her fear during the climb I conclude that this is not a real possibility.

5. The plaintiff’s claim against the first defendant in contract and tort

[56] The plaintiff originally sued the first defendant only in tort. In paragraphs 18 to 25G of its Defence LOAF pleaded first, that the plaintiff was on board the Leeuwin pursuant to a written agreement the terms of which limited LOAF’s liability to a maximum of $50,000 for personal injury arising out of the negligence of LOAF, which sum is to be further reduced in proportion to any contributory negligence by the plaintiff; second, that the plaintiff breached the written agreement by failing to disclose her pre-existing obesity, poor levels of physical fitness, coordination and strength, borderline intellectual capacity, poor comprehension and retention skills and the fact that she was a slow learner; and her lack of experience in and fear of climbing or working at heights.

[57] By her Reply, the plaintiff has denied the existence of any binding contract between the plaintiff and LOAF and has further pleaded that (1) the contractual terms upon which LOAF relies to limit its liability are unenforceable because of unconscionability, (2) the terms are unenforceable because of s 68 of the Trade Practices Act 1974 (Cth).

[58] Shortly before trial I permitted the plaintiff to further amend her statement of claim to plead that, if contrary to her denial, the plaintiff was on board the vessel pursuant to a contract, there was an implied warranty under s 74(1) of the Trade Practices Act 1974 (Cth) that the sail training services would be rendered by LOAF to the plaintiff with due care and skill, and that LOAF breached that warranty causing the plaintiff to suffer personal injury and consequential loss.

[59] LOAF claims that the plaintiff is unable to rely on the contract and any implied term in her favour because (1) she denied the existence of the contract (2) this amounted to a repudiation which was accepted by LOAF.

[60] The pleadings therefore raise a number of important legal issues as to whether or not there was a contract in existence between the plaintiff and LOAF, and if so, whether its terms have been breached, and whether the plaintiff or LOAF can now rely thereupon. The contractual issues are also important for another reason. If LOAF is liable to the plaintiff in contract, and if it is unable to claim the benefit of some of the terms thereof because they are unenforceable, the plaintiff’s damages are unable to be reduced on account of her contributory negligence: see Astley v Austrust Ltd (1999) 197 CLR 1. Subsequent amendments to the Law Reform (Miscellaneous Provisions) Act effected by Act No. 12 of 2001 do not apply to this case as this action was commenced before the commencement of the amending legislation: see s 21A(3) of the Act. Because of the importance of these matters it is convenient that they be dealt with before considering the plaintiff’s claim in tort.

6. Was there a binding agreement between the plaintiff and LOAF?

[61] LOAF asserts that there was a valid and binding agreement constituted by the fact that the plaintiff completed and signed the Medical Information Form and a Reservation Form dated 13 May 1996. It is necessary to now consider the circumstances under which these forms were filled out and the terms of these forms in some detail. The starting point is to consider the plaintiff’s primary assertion that there was no intention to create legal relations between the parties. In Ermogenous v Greek Orthodox Community of South Australia Incorporated (2001) 209 CLR 95, Gaudron, McHugh, Hayne and Callinan JJ said, at par [25]:
“Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”

[62] One of the matters relied upon by the plaintiff is that certain of the terms of the contract between the plaintiff and LOAF relied upon by LOAF are said to be inconsistent with the terms of the One Off Agreement. There is no evidence that the plaintiff was aware of the terms of the One Off Agreement, and therefore the precise terms of that agreement are irrelevant. What the plaintiff and LOAF knew was that DEETYA had made arrangements with LOAF to pay for her voyage, that the plaintiff herself was not making any payment towards the voyage, that the plaintiff was undertaking the voyage as a trainee, and that the purpose of the training was to assist the plaintiff in some ill-defined way to find permanent employment (but not necessarily as a sailor). The plaintiff’s only source of information about the voyage and the purpose of it came from either Ms Nuske or Mr Burr and any brochures she was given, such as the brochure TR3 to the plaintiff’s statement.

[63] It was also submitted that there was no consideration for the contract. Although this has sometimes been mentioned as a factor tending to show a lack of intention to create legal relations, it is now clear that it is a separate matter entirely going to the existence of an enforceable contract: see for example, Carter, J.W. and Harland, D.J., Contract Law in Australia, 3rd ed, pars [306] and [401]. Leaving consideration aside for one moment, I am unable to accept that, looked at objectively, the conclusion can be drawn that there was no intention to create legal relations between the plaintiff and LOAF.

[64] The plaintiff admits that she signed the Reservation Form (Ext L7). She also admits that someone read to her or helped her to read the conditions of contract on the reverse side of the Form. It is well established that signing a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document that the person who signed it has read and approved the contents of the document irrespective of whether or not he in fact read it: see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129 at pars [45]-[48].

[65] Counsel for the plaintiff, Mr Maurice QC submitted that there was no consideration for the agreement. It is well established that, to be enforceable, there must be consideration moving from the promisee. The promises are the undertaking on the rear of the Reservation Form in the General Conditions to the extent that they move from the plaintiff to LOAF and include the promise to limit LOAF’s liability in the way previously described (see clauses 9, 10, 11, and 12 of the General Conditions). Mr Reeves QC submitted that the consideration from LOAF moving to the plaintiff was that LOAF permitted the plaintiff to embark upon the vessel and participate as a trainee. I accept this submission, although I think LOAF undertook to do more than this (see par [73] below). There is no evidence that LOAF was obliged to accept every person nominated by DEETYA to go upon the voyage, but even if there were, the existence of such a contractual obligation by LOAF to the Commonwealth does not prevent the existence of contractual relations between LOAF and the plaintiff. I accept, however, that the plaintiff was not a party to the contract between LOAF and the Commonwealth and therefore could not sue upon it even if it could be argued that the contract existed for her benefit. To the extent that contracts which are made for the benefit of third parties are enforceable by the third party, the privity and consideration rules have been relaxed in the case of insurance contracts, but have not so far been further extended: see Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. In any event, no one has brought an action relying upon the terms of that contract. The question then is, was there any consideration moving from the plaintiff to LOAF to support the alleged contract between them based on the Reservation Form? In my opinion there was. First, there are the promises made by the plaintiff to LOAF as part of the written conditions on the Reservation Form which I have already mentioned. Secondly, if the plaintiff or any of the other trainees selected by the Commonwealth had not agreed to go on the voyage, LOAF could not have earned the consideration due to it under the contract with the Commonwealth. This was not a contract for the carriage of passengers; it was a contract under which the plaintiff undertook to undergo a sail-training program provided by LOAF. LOAF needed the plaintiff’s cooperation and plainly got it. The plaintiff was put to considerable trouble to attend the voyage in that she was required to forego her casual employment with St Mary’s and, as LOAF well knew, travel by bus from Alice Springs to Darwin to join the vessel. Moreover, once on board the vessel she was expected to perform tasks as a member of the ship’s crew, even if this did not involve climbing the mast, and did so. It is true that the plaintiff was not bound by the terms of the agreement in the Reservation Form to go on the voyage but in my opinion, there is still valid consideration because the contract between the plaintiff and the defendant is a unilateral contract: see Carlill v The Carbolic Smoke Ball Co [1892] 2 QB 484; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 at 133 per Barwick CJ. I therefore find that there was valid consideration given for the agreement between the plaintiff and LOAF enabling both parties to sue upon it.

[66] Mr Maurice QC submitted that the contract was not enforceable because the Reservation Form contained terms which, on the evidence, contradicted the actual arrangements made between the parties. First, the Reservation Form provided that “the contract is between the Trainee and the Foundation” “[i.e. LOAF]” and shall be formed on confirmation by or on behalf of the Foundation of the Trainee’s application and payment of the prescribed deposit”. In this case, there was no deposit, but I do not see how that matters. If there was no prescribed deposit, or any deposit, the contract was formed upon the plaintiff’s embarkation on the vessel to participate in the training program. It is also the case that the booking and payment conditions were not in accordance with the understanding of the parties. That might give rise to a claim for rectification, but it does not otherwise deny the existence of a contract between the plaintiff and LOAF. The plaintiff’s argument was also directed to show the use to which the Reservation Form was intended to be put, i.e. it was submitted that the form was not intended to evidence the terms of a contract between the parties, but was merely used as a convenient booking form because plainly LOAF needed to have certain basic particulars of who might be joining the Leeuwin, so the Reservation Form was used for that purpose as a matter of convenience. A consideration of the Reservation Form shows that in addition to the matters to which I have referred already some of the General Conditions would appear to be inconsistent with an arrangement whereby the Commonwealth chartered the vessel – e.g. the provisions relating to retention of the deposit. On the other hand, if the parties merely intended that the form be used to convey basic information about the identity of the trainee, one would have expected the words “I have read and accept the Booking, Payment and General Conditions of Contract of the Leeuwin Ocean Adventure Foundation Ltd” appearing above the plaintiff’s signature to have been deleted. Alternatively, if all that LOAF required was information of this kind, a simple form could have been drawn up by almost anybody in LOAF’s office, which would have achieved that object. Looked at objectively I consider that the correct inference to be drawn is that there was an enforceable contract between the parties constituted by the terms, including the General Conditions 9 to 12, on the Reservation Form.

[67] Finally, I should mention that although it was pleaded that it was unconscionable for the first defendant to rely upon the General Conditions 9 to 12, (par 1(g) of the Amended Reply to the First Defendant’s Further Amended Defence) that point was abandoned by Mr Maurice QC at trial (Transcript p2336).

7. The Trade Practices Act

[68] I turn now to consider whether clauses 9-12 of the General Conditions of Contract are affected by s 68 of the Trade Practices Act 1974 (Cth).

[69] Clauses 9 to 12 provide as follows:
9. The Foundation shall not be liable in respect of:
(a) the death, injury or sickness of any Trainee or in respect of the loss of or damage to any property of the Trainee (other than valuables deposited with the Master on board for safe keeping) unless the same is due to the negligence of the Foundation in which even the Foundation’s liability shall be limited to the amount of $50,000 for death, injury or sickness and $300 for property accompanying the Trainee; or
(b) the loss or damage to any valuables howsoever caused and irrespective of negligence on the part of the Foundation unless the same has been deposited with the Master on board for safe keeping in which case the Foundation’s liability shall be limited to an amount of $500.
10. Any damages payable by the Foundation up to the limits referred to in Clause 9 shall be reduced in proportion to any contributory negligence by the Trainee.
11. Notwithstanding anything hereinbefore expressed or implied the Foundation shall in any event be entitled to the maximum protection allowed by law in respect of the liability of or any limitation on damages recoverable from ship owners.
12. In applying for a berth reservation the Trainee shall be deemed to represent to the Foundation that he or she is medically and physically fit to undertake a sail training voyage and the Foundation accepts no responsibility for either making or monitoring any such assessment.
(For “Foundation” read “LOAF”).

[70] The plaintiff submitted that, if there were an agreement between the plaintiff and LOAF, then by operation of s 74(1) of the Trade Practices Act there is an implied warranty that the services will rendered by LOAF to the plaintiff with due care and skill. Subsection 74(1) provides:
In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill…

[71] Section 68 of the Trade Practices Act provides:
68. Application of provisions not to be excluded or modified
(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provision of this Division;
(b) the exercise of a right conferred by such a provision;
(c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or
(d) the application of section 75A;
is void.
(2) A term of contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section.

[72] LOAF submitted that s 68 and s 74 of the Act did not apply so as to prevent reliance upon conditions 9 to 12 for two reasons. First, it was submitted that no services were supplied to the plaintiff under the contract between the plaintiff and LOAF. Second, that in any event, as the plaintiff had repudiated the contract, which repudiation had been accepted by LOAF, the plaintiff could not sue on it for damages for breach.

[73] As to LOAF’s first argument, the Reservation Form provides that “These are the Booking, Payment and General Conditions of Contract applicable to participation by a Voyage crew member (the Trainee) on an STS “Leeuwin” sail training voyage conducted by Leeuwin Ocean Adventure Foundation Limited (“the Foundation”)”. It is clear from the Reservation Form that the plaintiff undertook the voyage, not as a passenger, but as a trainee crew member under the control of the Master of the ship (see especially cl 8). The voyage is elsewhere on the Reservation Form indicated as leaving from Darwin on 10 June and is identified as Voyage Number 12/96. Clearly, the Reservation Form does not contain all of the terms of the agreement because “the advertised route and timetable” referred to in cl 3 is not identified. Nevertheless, I think it is clear enough that LOAF undertook to accept the plaintiff as a member of the crew and to train her as a crew member in the sailing of the ship. That inference is clearly open from the Participant Manual given to the plaintiff at the information session conducted by Mr Burr. That manual is admissible to prove the aim of the contract: see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 348-349, per Mason J. Even if LOAF under the One Off Agreement had undertaken with the Commonwealth to supply services to the plaintiff, that does not preclude the existence of a collateral agreement between the plaintiff and LOAF to provide the same services: see Cheshire and Fifoot, Law of Contracts, 7th Aust ed, par 4.34. I therefore reject Mr Reeves QC’s first argument.

[74] I turn now to the question of whether the plaintiff is unable to rely on the contract because she repudiated it. LOAF’s argument was based upon the fact that the Plaintiff’s Reply to LOAF’s Amended Defence filed on 20 November 2001 pleaded that conditions 9, 10 and 12 of the Reservation Form “were [not] intended to or formed part of any contract between herself and the first defendant (the existence of which is denied)”. Similar pleas were contained in further amended pleadings filed on 21 March 2005. On 21 March 2005 and on 8 April 2005 LOAF’s solicitors wrote to the plaintiff’s solicitors purporting to accept the plaintiff’s repudiation of the agreement.

[75] There is authority for the proposition that, when a party denies the very existence of a contract, that conduct amounts to a repudiation of the contract: The Australian Coarse Grains Pool Pty Ltd v The Barley Marketing Board (1989) 1 Qd R 499 at 504-505 per Connelly J; at 513 per Ryan J. That was a case where the contract had not been fully performed by either party. Ryan J said, at 513:
The defendant, by asserting the existence of a contract which had been terminated and denying the existence of a contract by which it was bound, made clear that it refused to perform its obligations under that contract, and this amounted to repudiation of that contract which the plaintiff was entitled to accept.

[76] However, in this case the plaintiff had fully performed her side of the bargain in the sense that she embarked on the vessel and underwent the training until she was injured by her fall on the third day of the voyage. From that point on, it was plain that neither side could perform the contract any further. The plaintiff was evacuated by air on the day of her fall and hospitalised where she remained for a considerable period of time, extending in all events past the time when the voyage ended. It is plain that the contract came to an end at that time, not because of any breach of its terms, but because further performance of the contract was not possible. Thus, the contract was frustrated: see Robinson v Davison (1871) LR 6 Ex 269.

[77] It is plain that where a contract is frustrated, whilst the parties are automatically discharged from their obligations to further perform their contractual duties, their obligations are only discharged in futuro. The contract is not rescinded ab initio. Accordingly, accrued rights and liabilities are not divested, and in particular, a cause of action in damages which accrued prior to the frustrating event is not divested: see generally Carter and Harland (op cit) at [2062] to [2065].

[78] I therefore reject the argument that the plaintiff’s denial of the existence of the contract operates as a repudiation of the contract in this case. In my opinion the plaintiff is able to sue for damages for breach of any implied warranty of due care and skill, and to the extent that clauses 9-12 of the Reservation Form are not void, LOAF is entitled to rely upon those clauses. Although there is no express provision to this effect in the contract, I consider that I should draw the inference that the parties must have intended such clauses to continue to operate: cf. Codelfa Construction Pty Ltd v State Railway Authority of New South Wales, supra, especially at 364-365; 391-392 where it was held that an arbitration clause continued to operate.

20.7 Future transport and related costs

[246] I accept that the plaintiff is entitled to recover the future costs of attending hydrotherapy sessions twice per week. The claim is for $130,302.00, based on two trips per week at $28.50 per hour at two hours per trip, but this is for the cost of voluntary services by her parents in transporting her to and from Mandurah. I accept there is a need for the service, but a return trip by taxi twice a week is probably cheaper than allowing for the parent’s services, the cost of petrol, etc. According to Ms Mitchell, four return trips from Mandurah would cost $60 per week by taxi. The trip from Mandurah is only half as far as the trip from Dawesville, so a figure of $120 per week is reasonable, less the 75 per cent discount for fares for which the plaintiff is eligible, resulting in a cost of $30 per week. This is about 25 per cent of the amount claimed for. However, taxi services from Dawesville might not always be available and I should therefore allow for some additional costs should she need to access hydrotherapy by other means. I have also included an allowance for other travelling costs to attend on other health professionals where this has not previously been allowed for, including visits to her GP, psychologist, occupational therapist, etc. There is also a possibility that in the future the plaintiff might shift home closer to Mandurah, but this will involve further costs which are allowed for separately. Allowing for all of these contingencies I have allowed $60,000.00.

20.8 Transport costs – scooter and van

[247] The claim for replacement of the scooter is admitted and I allow $13,936.28 for this item. I also accept the claim for the scooter cover $1,189.23 and the backpack, $1,300.72. I also accept the claims for the shed, as I expect the scooter would not fit into a normal garage when there is a vehicle parked there and allow $600.00 for this item. The remainder of the costs claimed under this head of claim are reasonable and necessary and I accept that appropriate deductions have been made to allow for (a) the purchase of a car needed in any event; (b) contingencies, with the exception of the claim for petrol. I disallow this item because the plaintiff would have expended money on fuel for transport costs anyway and allowances have already been made elsewhere for additional transport costs for the hydrotherapy and visits to her GP, etc. I therefore allow the sum of $113,995.00.

21. Future care costs

[248] On the whole of the evidence I do not accept that the plaintiff needs a great deal of assistance in the home for personal care and domestic activities. The evidence of the plaintiff and her parents is that she is self-sufficient in matters of personal care and is able to and does manage her own medication regime without the assistance of her parents. She is also, on the evidence of the plaintiff and her step-father, able to prepare her own meals and work in the kitchen and do washing, ironing and some cleaning. I accept that there are some domestic tasks such as vacuuming and mopping floors and cleaning the bath or shower recess, which she would not be able to do because it would require excessive standing, squatting, bending or kneeling. Therefore if the plaintiff lived alone, I accept that she would require some domestic assistance on a regular basis. Dr Home and Dr Fong both suggest three hours per week, but I would regard this as the bare minimum.

[249] Dr Fong’s evidence is that the plaintiff would need three hours a week carer support for community access, shopping, banking, etc. Dr Home did not necessarily disagree but said that it would depend on her ability to obtain a driver’s licence and drive a modified vehicle. I have already found that this not open to her. Although the extent of this assistance is now lessened by the fact that she has a gopher which will enable her to access local shops, she will still need support to get to Mandurah when she needs to go shopping there. This could be provided by taxi, but there is no evidence this would be cheaper than allowing for the value of the parents’ time. The evidence is that the family shops once per fortnight and the defendants say I should make no allowance for this as it is a family concern. Nevertheless the plaintiff has a need to go shopping, not only for food, but for clothing, pharmaceuticals, banking and other normal activities as does everybody and I must allow for this irrespective of whether her mother does the family shopping with her or not. I might add that Mrs Renehan and her husband are not in good health so there may well come a time, perhaps sooner rather than later, when they will not be able to take her shopping. I think three hours a week is very reasonable and probably minimal.

[250] Both Dr Fong and Dr Home accept that two hours a month for gardening services and a similar allowance for home maintenance services would be reasonable. The defendants say that the plaintiff has never performed these activities. I accept that this is so, but in the future, when the plaintiff is no longer living with her parents she will have to employ someone to attend to some basic chores around whichever home she lives in. Even if the garden is minimal, there may be leaves to rake, weeds to pull out, etc. Unless she lives in rental accommodation she will need to attend to minor maintenance around the house. These are things she could have done but for the accident and some allowance for them should be made.

[251] In addition, Dr Fong’s evidence is that after the plaintiff reaches the age of 55, she will need three hours per day of personal care and domestic support, as she experiences the effects of ageing and degenerative osteoarthritis. I discount Dr Fong’s opinion to some extent because I do not accept his premise that she presently needs one hour per day of carer assistance; nevertheless I will make allowance for the possibility that she will require two hours assistance from age 55. In accepting this figure I bear in mind that there will be fluctuations in her needs depending on how many knee replacements she may have and how effective the results of these operations may be.

[252] The plaintiff’s figures, based on 14 hours a week for future care total $462,915.00. I would reduce this figure by half to cut out the seven hours per week for personal care and domestic activities. In addition, another two hours per day at $28.50 per hour ($399.00 per week) commencing at age 55 has a present net value of about $200,000.00 (using a multiplier of 500). The total of these prime figures is $431,500.00 roughly. From these figures there must be an allowance for contingencies. Bearing in mind that the prospect of future care of $200,000.00 is well into the future, there must be significant reduction for contingencies of life. I consider that $300,000.00 is a reasonable sum, doing the best I can and I allow this amount.

22. Loss of retirement benefits past and future

[253] I accept that in principle the plaintiff is entitled to the value of her putative employer’s lost superannuation contributions. I have allowed $90,000.00 for lost earning capacity to date of trial and nearly all of this sum represents earnings from actual employment. The Disability Services Award required employer superannuation contributions ranging between six per cent and nine per cent. A mid point of seven and a half per cent is reasonable. This comes to $6,750.00. Allowance must be made for interest. The plaintiff claims five per cent compound interest clear of taxes and administration expenses. There is no evidence before me as to what super fund earnings might be. The plaintiff’s calculation must be reduced to reflect a smaller figure for economic loss and an allowance for contingencies on the rate of earnings and I allow $2,000.00. This results in a total of $8,750.00 for past superannuation losses.

[254] The plaintiff claims nine per cent of the future economic loss component attributable to salaries earned from an employer (a figure already discounted and subjected to contingencies) and I consider that this is a reasonable approach. I allow nine per cent of $165,000.00 which totals $14,850.00.

[255] Accordingly I allow a total of $23,600.00 under this head.

23. Wilson v McLeay Damages

[256] Damages under this head are allowable if the presence of a parent or parents are of some importance to the alleviation of the plaintiff’s condition. According to Dr Flavell (Ext P12) the involvement of both parents was reasonable on each of the occasions the plaintiff was hospitalised principally because of Tracey’s borderline intellectual functioning which made it difficult for her to understand the decisions which needed to be made for her treatment and care and difficult for her to give the hospital authority to treat her. The parents’ presence was needed for logistical reasons as well, since the plaintiff had to be transferred to Alice Springs. Dr Flavell expresses similar reasons for the admissions to Alice Springs Hospital, where he observes that the plaintiff, whilst cooperative, is forgetful and certain information necessarily needed to be obtained from her parents; and the fact that the parents needed to be informed of the rehabilitation plan as the plan depended upon their assistance.

[257] Notwithstanding that opinion, I consider that only one parent was really necessary and therefore the figures claimed must be discounted slightly (I note that often only one parent’s time has been claimed). The usual basis of an award is the actual expenditure of the plaintiff’s relatives on fares and accommodation and any wages lost due to time off work: see Luntz (op cit) par 4.7.4. The claim includes components for fuel and accommodation costs, but the parent’s time has been claimed at hourly rates rather than calculating lost wages. There is some evidence that both parents were working from time to time but the evidence is not very clear as to what the work was or what earnings they made. For all I know, they might have been earning less than the rates which are being claimed. However, if the basis of the award is the plaintiff’s need for the services, which it primarily is, the measure of damages should be the commercial or market cost of fulfilling that need: Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327; Kars v Kars (1996) 187 CLR 354.

[258] However, I think the whole of the time claimed has not been proved to have been really necessary. A good many of the visits appear to be no more than prompted by love and affection. Doing the best I can, I will allow roughly 50 per cent of the amount claimed, which I will round off to $5,000.00.

24. Past gratuitous services

[259] There is ample evidence to support the claim that the plaintiff needed the services of her parents which they have provided voluntarily to her, since the accident and up to the present time. The defendants deny that the plaintiff is entitled to recover anything under this head of damage because one or either of the parents was paid a non-refundable carer’s pension by the Commonwealth. If, notwithstanding that fact, the plaintiff is still entitled to an award, the defendants submit it should be confined to care for household assistance and for transporting the plaintiff to and from doctors and other health professionals and that the claim is significantly inflated.

[260] So far as the non-refundable pension payable to the parents is concerned, the defendants’ argument was that the parents’ services were not voluntary because they were in receipt of a pension. It was submitted that, if the plaintiff recovered damages for the services provided for by the parents and paid for by the Commonwealth through the pension, the plaintiff would have been compensated for a service which has been paid for and therefore there was no loss to her: Blundell v Musgrave (1956) 96 CLR 73. However the opinion of Gibbs J in Griffith v Kerkemeyer (1977) 139 CLR 161 that damages for nursing services could be recovered only if the need was likely to be productive of financial loss, was expressly rejected by Mason CJ, Toohey and McHugh JJ (with whom Brennan and Gaudron JJ were in general agreement) in Van Gervan v Fenton (1992) 175 CLR 327 at 322.

[261] An alternative submission was based upon the decision of the New South Wales Court of Appeal in Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695. In that case, a very severely injured plaintiff who, as a consequence of the appellant’s negligence suffered cerebral palsy, was provided free medical and allied professional service by a charitable institution, the Spastic Centre. The plaintiff was under no obligation to pay for these services. The trial judge awarded $614,752.00 for the value of the services as voluntary services falling within the Griffith v Kerkemeyer principle. On appeal, the Court of Appeal (Stein JA, Ipp JA and Young CJ in Eq) held that the award was not recoverable because (1) the principle in Griffith v Kerkemeyer was anomalous, exceptional and should not be extended to new categories of claims; (2) whether or not claims for gratuitous services rendered by a charitable institution will be payable by the wrongdoer depends upon an application of the principles in National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; and (3) the Spastic Centre stands in a position in the community akin to that of a public hospital and (4) therefore the amount awarded was irrecoverable by the plaintiff.

[262] In my opinion Diamond v Simpson (No 1) is distinguishable because the services in this case were provided by the parents and therefore this case falls directly within the “anomalous” Griffith v Kerkemeyer principle.

[263] It was submitted by all parties that there were no authorities directly on point, but my researches have found that there are in fact decisions directly on point: Wann v Fire and All Risks Insurance Company Limited (1990) 2 Qd.R. 596 at 600 per Ryan J where the pension was ignored notwithstanding Veselinovic v Thorley [1988] 1 Qd.R. 191 which held that the measure of damages was the loss suffered by the provider of the services; Harth v Schick (1992) 2 Qd. R. 101, where Demack J, relying on Veselinovic v Thorley, took the pension into account; Van Gervan v Fenton (supra) which disapproved of Veselinovic v Thorley (at 331); and Scarf v The State of Queensland and Anor (White J, Supreme Court of Queensland, unreported 30/10/1998; BC9805715) at par [122] where her Honour declined to follow Harth v Schick and held that the parent’s pension was to be disregarded. Despite some misgivings I think that on the present state of the authorities the parent’s pensions are to be ignored and I proceed on that basis.

[264] The plaintiff claims under this head total $13,162.13 after deducting items which the plaintiff concedes cannot be substantiated, for transport; and $213,019.88 for home assistance. So far as the latter claim is concerned this works out to about three hours per day spread over the whole period of nine and a half years. The plaintiff’s method of calculation is based on extrapolating from the evidence of Mr and Mrs Renehan their estimates of the hours they spent attending to the plaintiff over the period from 4 August 1996 to 1 November 2002; and from 2 November 2002 to the date of trial. The figures are calculated based on the evidence of Ms Diane Mitchell. So far as the period 1996 to 2002 is concerned, the plaintiff’s calculations are reminiscent of the kind of calculations prepared by quantity surveyors in building cases, but that does not mean they are not helpful. However, to a large extent the calculation relies upon the memories of the plaintiff’s parents as to how much time was spent on individual items and were of necessity inaccurate bearing in mind that some of those tasks would have overlapped; e.g. bathing, toilet and dressing probably would have largely occurred at roughly the same time each day. Even so, it is only in the very early periods up to the end of 1997 that the claim is for five hours per day. From 1998 to 2001 the claim is for two and a half to three hours per day, except for short periods of increased care following treatment at the Alice Springs Hospital. After moving to Mandurah in 2001 the hours claimed vary from 2.5 hours to 1.75 hours per day up to November 2002. Over this whole period of six years three months, based on calculations made on the parents’ evidence, the claim averages 3.2 hours per day for the period up to December 2001 and 2.2 hours per day from December 2001 to November 2002 (this may be contrasted with the evidence of Dr Fong and Dr Home whose estimates I have referred to earlier). The balance of the period from November 2002 to March 2005 is based on the evidence of Ms Mitchell. According to her evidence the plaintiff’s needs totalled $80,772.38 or an average of $132.85 per day over a period of 20 months. Assuming an hourly rate of $25, the result of her evidence averages 5.3 hours per day and is plainly inflated and unrealistic.

[265] The plaintiff’s claims were subjected to very severe criticism by counsel for the defendant who pointed out that in many respects the claims for various assistance is not supported by the plaintiff’s mother’s evidence. For example, the plaintiff claims that in March 1997:
(a) The plaintiff needed 45 minutes per day assistance getting in and out of bed, yet Mrs Renehan’s evidence (P41, par [373]) was that she could get out of bed on her own.
(b) The plaintiff needed 25 minutes per day assistance for “hygiene” yet Mrs Renehan’s evidence was that the plaintiff could have a shower (including walking to the bathroom) unaided.
(c) The plaintiff needed 15 minutes per day to get dressed, yet Mrs Renehan’s evidence was she could do this on her own.

[266] In general I accept the defendant’s criticisms of this claim. The figures are plainly inflated and not supported by the evidence. Nevertheless, I accept that the parents have given the plaintiff a great deal of valuable assistance over this period. The difficulty is how to arrive at a reasonable figure. The defendants have submitted that I should allow only one hour per day for a period until her injuries “stabilised” in July 1997. I do not accept that submission. A reasonable starting point is the evidence of Dr Fong as to her needs as at the date of his report, 20 May 2004. I have accepted about half that figure or seven hours per week, for her future care. Doing the best I can, I think it is reasonable to allow 2.5 hours per day for the period to July 1997, a period of 11 months. Thereafter I would apply an average of 1.5 hours per day to the date of trial. This comes to approximately $116,000.00. In arriving at these figures I have included allowance for the time involved in taking the plaintiff to visit doctors, hydrotherapy, etc to the extent that they are caused by the accident. I therefore allow the sum of $116,000.00.

25. Interest on past gratuitous services

[267] Interest is claimed at commercial rates calculated on the whole of the past period at one half of the commercial rate per annum (to allow for the fact that the claim is gradual). Applying that formula the result is: 116,000 x 5.64% x 9.25 x 0.5=30,258.60.

[268] A rate of half the commercial rate is appropriate where the loss is evenly spread over the period. In this case the loss was not evenly spread. More of the loss was incurred early in the plaintiff’s post injury period than in the last four or so years. To allow for this factor I have adjusted the figure arrived at to $35,000.00 and I award that sum.

26. Fund management

[269] In this case there is no evidence that the plaintiff has suffered any intellectual impairment as a result of the injury. The decision of the High Court in The Nominal Defendant v Gardikiotis (1995-1996) 186 CLR 49 is said to be binding authority for the propositions that: (1) in order to claim under this head, the plaintiff must show that as a result of her injuries, the plaintiff will incur additional expense in managing her financial affairs; (2) that the fact that the plaintiff has a fund which needs to be invested is not sufficient; (3) according to the headnote, the maxim that a defendant takes the plaintiff as found has no application in determining whether to award damages for fund management.

[270] There is no evidence upon which a claim for fund management can be awarded based on the plaintiff’s injuries. The plaintiff’s need for assistance in this area springs from her pre-accident intellectual deficit. However, in my opinion the headnote is inaccurate. The leading judgment was given by Gummow J, whose reasons were accepted by Brennan CJ, Dawson, Toohey and Gaudron JJ. His Honour accepted that it would be proper to make an award if the plaintiff’s incapacity to manage his or her affairs did not result from the wrong but was antecedent to it: see, at 67-68. That is the case here.

[271] Fund management costs by Public Trustee in Western Australia include an establishment fee of the capital sum received of 1.1 per cent and 6.6 per cent on distributions of income from investments. The plaintiff seeks a finding that she will invest a portion of the judgment funds with Public Trustee at those rates and that she should recover those expenses. I so find. The final amount of the determination of this figure will be postponed until after I have published these reasons and I will hear the parties on the appropriate sum to be awarded. I draw the parties’ attention to the High Court’s decision in Willett v Futcher (2005) 221 ALR 16 concerning the manner of assessing the sum payable in respect of allowable management fees.

27. Summary

[272] In conclusion I consider that judgment should be entered for the plaintiff against the first defendant, that the claim against the second defendant should be dismissed and that damages should be awarded against the first defendant as follows:

1. Pain and suffering and loss of amenities of life: $150,000.00
2. Interest on past non-economic loss: $28,500.00
3. Loss of earning capacity to date of trial: $90,000.00
4. Interest on past loss of earning capacity: $24,111.00
5. Compensation for loss of Social Security payments: $17,950.00
6. Future loss of earning capacity: $165,000.00
7. Past special damages: $47,521.15
8. Interest on past special damages: $221.74
9. Future special damages:
(1) Knee replacement procedures: $23,000.00
(2) Future physiotherapy, hydrotherapy and gastric banding: $26,185.00
(3) Orthotics/OT aids: $25,102.34
(4) Future pharmaceuticals: $4,000.50
(5) Case management $45,000.00
(6) Home modifications: $1,500.00
(7) Future transport and related costs: $60,000.00
(8) Transport costs – scooter and van: $113,995.00
(9) Future care costs: $300,000.00 $598,782.84
10. Loss of retirement benefits: $23,600.00
11. Wilson v McLeay damages $5,000.00
12. Past gratuitous services $116,000.00
13. Interest on past gratuitous services: $35,000.00
$1,303,686.73
14. Fund management: to be calculated

[273] I will hear the parties as to the appropriate orders to be made in the light of these reasons and as to costs.