Rhiannon Rigby v Shellharbour City Council

[2005] NSWSC 86

CITATION:	Rhiannon Rigby v Shellharbour City Council & Anor [2005] NSWSC 86
HEARING DATE(S):	22/09/03-03/10/03, 13/04/04-23/04/04, 16/06/04-17/06/04, 22/02/05
JUDGMENT DATE :	8 April 2005
JUDGMENT OF:	Dunford J
DECISION:	Judgment for plaintiff against both defendants for $1,847,536.70 plus costs. Judgment on each cross-claim for cross-claimant for $923,768.35. Consequential orders.

CATCHWORDS:	NEGLIGENCE - personal injury - public authority - BMX bike club - BMX cycle track - access to public - unfenced starting ramp - lack of warning signs - whether negligent - plaintiff riding down ramp at speed - dislodged at first hump - whether negligent - contriburoty negligence - 14 year old girl - dare by friend - DAMAGES - assessment of - brain damage - employability - cost of care - capacity to care for baby born since accident - cost of funds management - how calculated and applied
LEGISLATION CITED:	Protected Estates Act 1983
CASES CITED:	Nicholson v Nicholson (1994) 35 NSWLR 308 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Southern Portland Cement Ltd v Cooper [1974] AC 623 PC, affirming (1972) 128 CLR 427 Sullivan v Gordon (1999) 47 NSWLR 319 Thompson v Bankstown Corporation (1953) 87 CLR 619 Waters v Henderson (Australia) Pty Ltd (CA - 6 July 1994) Wyong Shire Council v Shirt (1980) 146 CLR 40 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247
PARTIES:	Rhiannon Rigby by her tutor Carole Lynne Rigby v Shellharbour City Council - First Defendant Southlake BMX Club Incorporated - Second Defendant
FILE NUMBER(S):	SC 20724/01
COUNSEL:	P Webb QC/J G Stewart - Plaintiff M J Joseph SC/S P W Glascott - First Defendant D L Davies SC/K M Guilfoyle - Second Defendant
SOLICITORS:	Lough & Wells Lawyers - Plaintiff Phillips Fox Lawyers - First Defendant Ebsworth & Ebsworth Solicitors - Second Defendant

LOWER COURT JURISDICTION:

- 29 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

TUESDAY 22 FEBRUARY 2005

20724/01 RHIANNON RIGBY BY HER TUTOR CAROLE LYNNE RIGBY v SHELLHARBOUR CITY COUNCIL & ANOR

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff claims damages for personal injury allegedly suffered by her when she fell from her bicycle at the BMX track within the Croome Road Sporting Complex at Albion Park Rail on 11 November 1995. The defendants are the Shellharbour City Council, which approved the construction of the BMX bike track and had overall management and control of the Croome Road Sporting Complex and the Southlake BMX Club Incorporated which designed, built and managed the said BMX track.

2 The hearing and delivery of judgment in the matter has unfortunately been somewhat protracted due to intervening commitments of counsel and myself. The hearing commenced on 22 September 2003 and continued until 3 October when it was adjourned. It resumed on 13 April 2004 and continued until 23 April when the evidence was completed. After exchanging Written Submissions, the parties addressed on 16-17 June 2004 when judgment was reserved. As other commitments prevented me attending promptly to the judgment, I saw counsel in Chambers and invited updated information on a number of specific matters relative to the assessment of damages. Such information has now been provided in the form of correspondence between the parties’ solicitors and I have caused such correspondence to be marked Exhibit BB.

FACTS

3 This Croome Road Sports Complex consists of a substantial area of ground much of which is heavily wooded and includes football and hockey fields, tennis courts, cricket nets, changing sheds, the BMX track and associated buildings and in addition, there were various unsealed trails through the bush and a flat-concrete bicycle path which ran generally diagonally across the complex. The BMX track is located in the northwest section of the park and isolated from the playing fields; it lies due south of the Albion Park airfield, now known as the Illawarra Regional Airport.

4 The track is within an area of roughly 100 metres by 50 metres and comprises of 4 main parallel legs or straights with curved end sections joining the straights, giving it what could roughly be described as “snakelike configuration”. The total length of the track is approximately 350 metres from the starting ramp in the north-eastern section of the complex and ending in front of the canteen building on the western side. The starting pad and much of the first leg of the track is approximately 8 metres wide, elsewhere the track is no more than 4 to 5 metres wide.

5 The track is flat except for humps and bumps placed at different positions along the track. There are some 12 to 14 humps in the full length of the track. The cross-section of the track on the main straights is flat with the curved end sections sloped inwards.

6 Each main straight contains 2 or 3 humps of varying configuration, varying height, varying length and varying profile. The highest part of the track is the starting pad, which is some 3 to 4 metres above the general track level. The top of the pad is flat and surfaced in loose gravel at the rear with a concrete apron at the front. The concrete apron continues over the front edge of the pad and down the full length of the starting slope, a length of some 17 metres. The concrete stops at the bottom of the starting ramp.

7 The track and the humps are surfaced with a hard-packed clayey material with loose fine blue metal grit and clay dust. Much of the grit has been kicked out to the sides of the track and in places has accumulated into sizeable windrows. In some places, the humps have patches of a harder light coloured material exposed in them, which seem by their appearance to be a type of weak concrete.

8 I had a view of the site in the presence of counsel and solicitors on Tuesday 23 September 2003, and observed the various features of the BMX track and the other features of the Croome Road Sporting Complex.

9 The evidence establishes that the first hump, at which the plaintiff had her accident, was some 8 metres from the bottom of the concrete starting ramp and was the first hump after that ramp. It was at the time, single-crested and without the tabletop approach which I observed during my inspection of the site.

10 The crest of the hump was some three quarters of a metre above the general track level, with its front and back slopes nominally some 30 degrees with rounded curves at the changes of grade both at the bottom and at the crest. The overall length or spread of the hump was some 4 to 5 metres at the base. This hump has since been replaced by an intermediate flat or tabletop rise on the front slope. There was no perimeter fence enclosing the track except for a low post and rail fence about 18 inches off the ground with gaps of various lengths between the rails and with a gate to allow vehicular access.

11 As a result of the accident, the plaintiff suffered brain damage and was in a coma for 9 days. She has no recollection of the actual accident and the only two eyewitnesses present were her younger brother, Nicholas, then 9 years old, and her then friend, Cassandra Nicolle, then aged 13, the same age as the plaintiff.

12 Nicholas Rigby said that on the day of the accident, he went with the plaintiff and Miss Nicolle on their bikes to the Croome Road Sporting Complex. They rode over through a bush trail across to the entry road for vehicular traffic, continued along a bush track until they came to the concrete bicycle track on which they continued until they veered off the track to go up the hill to the top of the starting ramp of the BMX track. When they got to the top of the starting ramp, they were talking and watching the aeroplanes on the airstrip for some time. Then Rhiannon dared Cassandra to ride down the starting ramp, Cassandra declined but then dared Rhiannon, who said “all right” and rode down the ramp. He said she pedalled down the ramp pretty fast and he recalled her shirt flapping as she did so. She reached the first jump and went over it but when she landed, she landed on her left side. He then rode down and Cassandra ran behind to where his sister lay. He rolled her over on her back but she was not moving so he started yelling for help.

13 He did not recall her walking her bike down any part of the ramp, but thought she pedalled the whole way down. He did not see her use her brakes. He said that as she went over the jump, her bike became airborne and it landed about 1 or ½ metres past the jump. The front wheel did not turn but the bike just lent to the left. He said that as Rhiannon rode down the ramp, she had her feet on the pedals and was trying to pick up speed. She was wearing a helmet fastened under her chin, and it was still secure after the fall.

14 As she approached the hump she prepared for the jump by positioning her feet, standing up a little so that the pedals were level, one forward one back and as she went over the hump, he actually saw her airborne with both wheels off the ground.

15 He said that he had previously ridden on the BMX track with his father and at some stage, was told not to ride on the track, but he could not recall whether that was before or after Rhiannon’s accident. In cross-examination, he also said that he had previously been to ride on the BMX track with Rhiannon and he had, on a number of occasions, seen other people, including children, riding around the track.

16 Cassandra Nicolle said that when they got to the Croome Road Reserve, they went to a bushland area before they got to the BMX track. She said they spent a few minutes riding around the track, apparently near the finish of the track in front of the canteen area. They then went to the top of the starting ramp to look at the planes, which they did for about 10 minutes. She then dared Rhiannon to ride down the starting ramp and the plaintiff started walking the bike down with her feet until about halfway down when she put her feet on the pedals, and started pedalling. She said she went over the first hump all right but then as she went over the second hump, the bike skidded on the gravel and she crashed headfirst straight into the ground.

17 She could not remember whether the bike’s wheels left the surface of the track but when she went to Rhiannon, she was still half on the bike and had one leg twisted around the bike. She said that this occasion was her first visit to the BMX track, and she had not been back. She said the first hump was about a metre or two from the bottom of the ramp and the second hump was another 2 metres from the first ramp. In this she was clearly wrong as the view satisfies me the first hump was some 8 to 10 metres from the bottom of the ramp and it was at that hump that the accident happened, not at the second hump. She does not recall Rhiannon’s shirt blowing in the wind.

18 Miss Nicolle made a handwritten statement (Ex K) shortly after the plaintiff returned to school (1996) in which she said:

“Rhiannon sat on her bike and walked it down with her feet but then her feet sliped (sic) she lost control when she was almost down the bottom she regained control but was going pretty fast. She went over the first hump fine but on the second jump she didn’t make it she went straight down,”

but in evidence (T 387), she did not remember the plaintiff slipping and in a later statement (Ex X3) made in May 2003, she said that when she first took off, she was going pretty slow and when she got to the bottom she sped up a bit, but was not going really fast. Moreover, she gave evidence as to the circumstances in which she and the plaintiff ceased to be close friends which was inconsistent with what she described in her May 2003 statement (see T 398) and admitted she had not been telling the truth on that issue. She also said the plaintiff fell to her right-hand side although hospital records make it clear the gravel rash and abrasions were to the left side of her face.

19 I am satisfied that, notwithstanding his young age, Nicholas Rigby’s recollection is generally more reliable, but it probably does not matter whether the plaintiff walked her bike down the first part of the ramp or whether she pedalled from the top of it. I am satisfied that at some stage, she started pedalling and was trying to build up speed as she approached the first hump, that as she took off over it, her bike became airborne, she lost her balance and fell to the ground landing on the left side of her face.

20 The precise mechanics of how, or at what stage, the plaintiff lost her balance cannot be established, but I am satisfied that as a result of pedalling down part or all of the starting ramp and continuing to pedal, the plaintiff arrived at the first hump at a speed which was too great for a person of her limited experience, with the result that when she became airborne in traversing the hump she lost her balance and fell, resulting in her head striking the ground with considerable force and causing her injuries. She was riding a modified mountain bike with thick tyres, and I am satisfied that she was wearing a properly fitted safety helmet which remained in place after her fall.

21 The plaintiff said that she remembered getting the bike and having it before the accident, it was a girl’s mountain bike with wide tyres and not a bike specifically designed for a BMX track. She said she knew the BMX track was there and she thought she remembered seeing it before the accident, but does not remember going to the track before that day. She said that she knew her parents did not like them riding on the BMX track, but was unable to say whether she remembered being told that before her accident (T 241). She told Dr Bell (T 596) that when the “teacher” died, presumably a reference to Mr Byrne’s fatal accident in 1991, her parents forbade her to go to the track, but it was not clear whether she actually remembered this or it was something she had subsequently been told.

22 Mrs Rigby said that she had seen the BMX track a couple of times with her husband, the plaintiff and their other children. On one of those occasions, she saw a few of the bigger children riding on the track but after the publicity surrounding the death to Mr Byrne, who suffered fatal head injuries whilst riding on the track on 2 January 1993, they told the children they were not to go to the BMX track (T 74, 77).

23 While Mr Rigby said that before the accident, he rode around the BMX track and, after speaking to his wife, his wife told their children that they were not allowed around there because he considered it a dangerous place (T 150), that is the BMX track; and after the accident, he pointed out to her that she had been riding on the track contrary to his orders (T 162-3).

24 The BMX track had been built by the Club with some contribution from the Council including the provision of men and machinery, and as the relevant development authority, the Council had approved and supervised the building of the track. Although built primarily for the benefit of members of the club, the track was open to all residents as a recreational facility along with the other facilities provided by the Council both at Croome Park and elsewhere within the city including cricket and football fields, tennis courts, skateboard rinks, children’s playgrounds, etc (see letter from Council dated 25/29 October 1996 – Ex B doc 14). There were at the time no signs forbidding access to the track or warning of any potential dangers in relation to it.

25 Although it was stated a number of time during the plaintiff’s case that the defendants would be calling in an expert witness experienced in the design of BMX tracks and the nature of BMX racing, no such witness eventuated, and the only so-called expert called by the plaintiff on liability was Mr Moir, an engineer who was unfamiliar with the sport of BMX racing and had never been involved in the design of a BMX track. Accordingly, some of the opinions he expressed were unrealistic; for example at one stage, he suggested that the loose gravel surface should have been replaced with a bitumen or bituminised rubber surface to provide greater lateral traction, but as I understand the position, sliding in the loose gravel, particularly at curves, is a feature of BMX racing. He also placed emphasis on the need to wear a proper helmet although that is not an issue in the present case as I am satisfied that the plaintiff was at the time wearing a properly fitted and secured helmet. His evidence about the fencing of BMX tracks was highly selective, at one stage he admitted making one assumption for the purpose of his report and another for the purpose of giving his evidence in chief. I did not find his evidence objective, unbiased or helpful.

LIABILITY

26 I was referred to a number of cases on the issue of negligence, most of which were reviewed by the Court of Appeal in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247, a judgment handed down some 5 weeks after final submissions in the present case. That case, Tobias JA (with whom Mason P agreed) re-affirmed the applicability of the test enunciated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 to determine whether there has been a breach of the duty of care, and pointed out the necessity of taking all circumstances into account including whether the risk would be obvious to young persons as distinct from adults: at [195]. His Honour also drew attention to the distinction between obvious risks and inherent risks. Those two cases, and a number of the other cases cited therein, were concerned only whether there was a duty to warn of the inherent dangers involved in diving into waters of unknown and or variable depth. Here the plaintiff’s claim is wider and alleges not only a failure to warn, but a failure to fence or to exclude the public altogether, and faulty design.

27 In my view, there are risks of injury inherent in any BMX track where the object is to ride over humps at speed so as to become airborne. These risks are recognised by the requirement, apparently almost universal, for riders to wear helmets and protective clothing. In addition, in the case of the Croome Park track, there was the prior fatal accident of Mr Byrne, admittedly at a different part of the track and involving a rider not wearing a properly fastened helmet, but it did involve a fall whilst riding over a hump; and I am satisfied that the risk of injury, including serious, and even fatal, injury was foreseeable.

28 It was therefore incumbent on the Club responsible for the building, maintenance and incidental management of the track and the Council which had approved the construction of the track and supervised its construction, was the owner of the land and provided the whole of the Croome Park Complex as a recreational facility for its residents and had overall management thereof, to take reasonable care to prevent injury to those persons who might use the track.

29 I reject the plaintiff’s submission that the general public should have been excluded from use of the track and its use limited to experienced riders under the supervision of the Club. Such a course would defeat the very purpose of providing a public recreational facility for use by members of the public, and by analogy would require the exclusion of the public from public skateboard ramps, which are likewise provided by Councils and others.

30 For the same reason, I reject the submission that the whole track should have been fenced off as this would have the same effect, namely to exclude the public. Evidence was adduced in the form of photographs showing other BMX tracks fenced but there was no evidence as to the reason for this e.g. to facilitate a charge for admission, exclude vandals, etc. I am satisfied that there is no “industry practice” to fence BMX tracks.

31 I also reject the submission that there was any inadequacy of design, construction or maintenance of the track. It was not as safe for bicycle riding as a flat concrete path, but it was not meant to be. The only evidence that it was unsafe in any of these respects came from Mr Moir and I have already given my reasons for rejecting his evidence; and in any event, there is no evidence that any such deficiency led to the plaintiff’s fall and injuries.

32 The plaintiff also alleges the defendants were negligent in failing to erect warning signs, but was unable to lead evidence from Mr Moir or otherwise as to what the signs should say. Finally, reliance was placed on the signs subsequently erected as depicted in Exhibit A, but those signs appear to be designed to exclude liability on the part of the defendants in the event of users of the track sustaining injuries rather than effectively warning of the dangers. Furthermore, I am not satisfied that warning signs (of whatever verbiage) would have been effective to dissuade 2 fourteen year old girls from riding on the track that afternoon even if they had seen the signs and read them.

33 Finally, it was submitted that the humps and/or the starting pad and ramp should have been fenced off. For obvious reasons, the humps should not have been fenced off – they were one of the principal features, if not the principal feature of the track; but the position of the starting ramp is somewhat different.

34 It was there for a specific purpose, namely to secure even starts and a build up of initial speed by experienced riders on race days; its use was not necessary for casual inexperienced riders who simply wanted to ride over the humps, but it was also foreseeable that some inexperienced riders would ride down the ramp as a means of accelerating to the first jump without realising the danger. The ramp and its proximity to the first jump appear to be the most dangerous features of the track. In these circumstances, I consider that it was incumbent on the defendants to take reasonable steps to avoid injury to such inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders.

35 This ramp and its proximity to the first hump, not only constituted a foreseeable risk of injury in the case of inexperienced adult riders, but the risk was increased in the case of children (such as the plaintiff, aged 14). In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [123] Kirby J said:

“The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertance of the entrants.”
See also Wyong Shire Council v Vairy at [195] noted above.

36 To such persons, the ramp was an allurement rendering it more likely that they would attempt to use it: Thompson v Bankstown Corporation (1953) 87 CLR 619, Southern Portland Cement Ltd v Cooper [1974] AC 623 PC, affirming (1972) 128 CLR 427. I regard the allurement as the ramp itself, with its slope and opportunity to build up speed approaching the first hump, and not the ramps’ top apron used as a viewing platform for watching planes landing, etc at the airport.

37 Such fencing would not be disproportionately expensive and would have prevented the plaintiff approaching the first jump at such a high speed and thus would probably have prevented her fall, or at least rendered it much less catastrophic.

38 In failing to fence off the starting pad and ramp, I am satisfied the defendants were each in breach of their duty of care to the plaintiff and the plaintiff is entitled to judgment against each of them.

APPORTIONMENT

39 However, the plaintiff was almost 14 years old and had a duty to take care for her own safety. Her parents had told her not to go to the BMX track because they considered it dangerous and she rode down the ramp as a result of a “dare” by her friend who was not prepared to do likewise, presumably because of the apparent danger. She also knew of Mr Byrne’s fatal accident. In these circumstances, I am satisfied the plaintiff was guilty of contributory negligence and that her damages should accordingly be reduced by 20 per cent.

40 As to the Cross-claims for contribution between the defendants, the Club had the day-to-day management of the track, its members were familiar with the details of BMX racing and riding, including presumably the use, significance and effect of the starting ramp and had been responsible for the original design of the track. The Council on the other hand, was the planning authority and had approved, supervised and contributed to the building of the track, which it utilised as part of the public recreational facilities it provided for its residents. In these circumstances, I consider each defendant should be responsible for one half of the plaintiff’s damages.

INJURIES and DISABILITIES

41 Following her accident, the plaintiff was conveyed by ambulance to Wollongong Hospital where she was admitted in a coma suffering from a closed head injury with fixed dilated pupils necessitating intubation to protect her airways, and the pupils later became reactive with hyperventilation. She registered 4/15 in the Glasgow Coma Scale and a cerebral CT scan showed a frontal subcutaneous haematoma with a small amount of blood in the left choroid plexus and a small amount of subarachnoid blood in her high left frontal sulci. She was intubated and ventilated for two days in the intensive care unit.

42 She effectively remained in a coma for 9 days and her post-traumatic amnesia period was about 3 weeks. She also suffered a degloving injury to her lip and major lacerations and abrasions to her face particularly her left cheek and upper lip together with abrasions to her tibia and elbows. The lacerations were sutured in casualty, but she was left with very considerable road grime tattooing of scars around the alar base on her left cheek and particularly on the centre of the upper lip, in respect of which she subsequently came under the care of Dr P G Thompson, plastic and reconstructive surgeon.

43 She commenced “gate leave” from the hospital on 4 December 1995 and was ultimately discharged home on 11 December that year. Reference was made in the hospital notes to post accident impairment of judgment, planning and abstract thinking, and poor short-term memory. She also showed some behavioural problems including agitation, tearfulness, perseveration of ideas, occasional urinary incontinence and mildly aggressive behaviour.

44 When reviewed by Dr Steve Hartman, Consultant Paediatrician, on 8 February 1996, it was noted that there had been some improvement but she still had problems particularly with emotional lability and loss of inhibition, speaking her mind at inappropriate times and butting in to conversations with unrelated comments. It was decided that she should return to Dapto High School on a part-time basis. When Dr Hartman attempted to review her condition on 11 April 1996, she was in a totally uncooperative mood and it was impossible to examine her at all.

45 When she returned to school, she had difficulty relating to the other pupils and they to her. In the latter part of 1996, she was engaged in sexual activity (masturbation, etc) with three boys in the school which she recorded in her diary, which was later discovered by her mother. When her mother took the matter up with the school, the school blamed the plaintiff rather than the three boys, whom it might be inferred were taking advantage of the plaintiff in her disabled state. She claimed that she consented and it appears to have been an attempt on her part to gain recognition and acceptance, something that she was having difficulty obtaining from the other pupils. Rather surprisingly, she appears to have been suspended for three days and the boys for one.

46 Her former “best friend” Cassandra Nicolle, who had been with her when she had her accident, stopped associating with her because she found that she was a different person to the person she had been prior to the accident and was “no longer fun to be with”. The changes in her personality were observed by Michael Medina who had known her since primary school days.

47 She was reviewed again by Dr Hartman on 1 August 1996, when he noted that she seemed to be making steady progress “although obviously she will never return to her normal state prior to the accident”. He also referred to complaints of dizziness which by that time had become quite intermittent. He also noted that evidence of problems of the higher centres particularly with concentration and marked lability of her emotions.

48 On 28 November 1996, the scarring of her left cheek and adjacent areas was revised by Dr Thompson and a further procedure was carried out by him on 28 August 1997.

49 Following the incidents with the boys at the school and her continuing difficulties relating to her peers, there were attempts by the plaintiff to self-harm, as a result of which Dr Hartman referred her to Dr Tanya Dus (Ex C, doc 47), child and adolescent psychiatrist, who saw her on 21 October 1997. The plaintiff described herself as “always depressed” but Dr Dus noted marked lability and mood variation. She and her mother gave a history of considerable peer difficulty for several years preceding the accident, but the plaintiff viewed the accident as the turning point for her peer relations as well as her mood, describing herself as “on the outside, different” and generally unaccepted by her fellow students after her return to school.

50 Dr Dus noted depression in both the plaintiff’s parents and that her material grandmother had suffered from chronic schizophrenia eventually setting fire to herself and her husband when they were both 57 years old. Dr Dus concluded that the plaintiff had residual cognitive and emotional difficulties, marked emotional lability and poor impulse control. She found there was no evidence of a major depression or other major mental illness, but likely organic personality change secondary to the head injury.

51 Meanwhile, the plaintiff continued at school in the Work Skills class until the latter part of Year 11 when she left. Mrs Pike, the school counsellor, described the difficulties she had both in relating to other students and the difficulties other students were having relating to her; and shortly after the school camp, it appears that she was asked to leave, although not formally expelled. She said she was taken to a room and told to wait there until her mother could come and pick her up.

52 After leaving school, the plaintiff started at TAFE studying for the Childcare Certificate which she completed, although there were some problems about her obtaining a pass in the “hand washing” module.

53 She then did a cooking course but her mother said she only learned to make a cappuccino and fold serviettes. After that, she did a pre-apprenticeship hairdressing course which she did not complete. She then worked one day a week at Woolworths at Albion Park, but this job was provided for her by her now mother-in-law, Mrs Bamber who was the store manager, and when Mrs Bamber was transferred to another store, the plaintiff was not continued in that employment. Whilst she was there, Mrs Bamber, in conjunction with the supervisor, had to provide additional supervision to ensure that the plaintiff completed her tasks, which were essentially stacking shelves, and if customers became difficult, she reacted angrily and at times swore at them.

54 She then worked briefly for a photographer in Wollongong but after an incident where she was rude to one of the customers, she was dismissed.

55 As a result of a referral by Centrelink, she then commenced a training course with Essential Personnel, which is a specialized employment service where people with disabilities are assisted to find work in open employment, and was started in that organisation’s “Becoming a Worker” course. During that course, a position became available at Best and Less in Warrawong and the plaintiff was commenced on a trial at that establishment. Essential Personnel provided a trainer for her but the trainer had a number of difficulties with the plaintiff and the trial was unsuccessful. The supervisor, Ms Potter, concluded that her behaviour was completely unacceptable in a work place. She was often abusive and insulting to other employees and customers, seemed unable to follow instructions and was unable to cope with any criticism whatsoever, insisting on doing things her own way. Since then, she has not worked.

56 In the meantime, she formed an association with a young man, Gareth Bamber, an apprentice panel beater whom she had first known at school. Gareth was described as having problems of his own, although such problems were not specified, but from some of the documents tendered in evidence, it appears that he suffers from Attention Deficit Disorder. Ultimately, she and Gareth became engaged in May 2002, they were married in February 2003, and a daughter, Ivy born on 25 November 2003.

57 The child was born by caesarean section but the plaintiff left the hospital after three days, apparently after one of the nursing staff expressed concerns as to whether the plaintiff was capable of caring for the child, and it was only on the plaintiff’s mother’s assurance that she would be involved, that the hospital permitted the plaintiff and child to be taken home. Part of the problem with the hospital appears to have been that one of the midwives at the hospital had not been informed in advance of the plaintiff’s “disability”.

58 Shortly after the birth of the baby, Gareth started working long hours and not getting home until very late. He claimed he was delayed at work because the business was busy and there was no evidence to the contrary. He and the plaintiff were living next door to her parents’ house and ultimately the plaintiff left him and moved back into the parents’ house. That was the state of the evidence at the time of final addresses.

59 However, as a result of the information subsequently provided by consent (Ex BB), it appears that she returned to live with her husband towards the end of May 2004 (which would be before the final addresses) but her husband left the plaintiff and their daughter again on or about 4 June 2004. He returned to their house and lived there alone until the first week of November, when the plaintiff and their baby moved back into that house with her husband, but the general situation was described as “unstable” and the plaintiff’s husband had spoken of leaving her again after Christmas. I am not aware what the current situation is.

60 The evidence of the plaintiff’s mother was that after the plaintiff was taken to hospital following the accident, she remained there for about a month, that she initially had problems walking, it was necessary for her to be assisted to the bathroom and she did not sit up in the bath. She also had no comprehension of where her bed was, her balance was unsteady and on occasions she got into the wrong bed. Initially, after she was discharged, she attended the rehabilitation program at the hospital. She had to re-learn walking up and down hills, etc. When she returned to school, her face was considerably scarred and she was teased by fellow students and called names such as “retard” etc.

61 Prior to their marriage, the plaintiff and Gareth lived at Kiama for about 6 months, but her mother gave her a roster for cleaning their flat and went to Kiama about once a week to check if the necessary household chores were done and to help do what remained undone. The plaintiff and her mother did most of the household shopping for Kiama together at Dapto on Thursday evenings during this period. The plaintiff learnt to drive a motorcar and obtained her licence, but only drives short distances locally. Her mother described her as not a good driver, who is easily distracted whilst driving. She has not had any accidents on public roads.

62 The plaintiff came across as a frank and honest witness, she had a good command of language, understood questions, and her answers were responsive. She appeared to have a reasonable recollection of the last few years but her memory seemed very patchy of events prior to that time, and she had virtually no recollection of pre-accident events. She spoke in a pleasant, conversational manner and I noted that at times there were long delays whilst she thought of her answers, but I also made a note at the time that she appeared to be trying to answer the questions frankly. There was no indication of faking or exaggerating her loss of memory or the degree of such loss.

63 She generally conducted herself in the courtroom in a proper and appropriate manner, but there were a couple of occasions when she became frustrated and there were outbursts, particularly when recalled to give evidence in April 2004. The incident on 15 April 2004 was more dramatic than appears in the transcript (see T 950). Admittedly, she was being closely cross-examined by Mr Joseph SC and her credit was being put in issue, but what happened impressed me as a case of inappropriate behaviour consistent with the frontal lobe damage alleged.

64 Prior to her marriage and birth of her baby (except for the 6 months when she was in Kiama), when the plaintiff was not attending courses or work experience, she spent most of the day at her parents’ optical dispensing business where she did odd jobs such as making the tea, buying the lunches, etc. I am satisfied that the object of this was to enable her parents to keep an eye on her during the day. Whilst she was at Kiama, she drove to Wollongong and spent the day at their business a couple of times a week. She had very little social life such as would be common for people or of persons of her age.

65 Defence counsel were able to point to a number of incidents where she has behaved appropriately or made insightful comments and they rely on such incidents to support the proposition that the continuing effects of her brain damage are not that great, but the overall impression I get from the whole of the evidence is that she is severely and significantly disabled, and will have a number of major difficulties in coping with everyday living unless she continues to receive support such as she presently receives from her parents.

66 The plaintiff relied on the evidence of Dr David Bell, a psychiatrist experienced in treating and assessing persons suffering frontal lobe damage, Dr Buckley, a rehabilitation specialist, Dr Shores, a neuro-psychologist and John Kennedy-Gould, a social-worker. The only expert witnesses called for the defendants were Dr Lorraine Jones, a rehabilitation specialist and Dr Roldan, a neuro-psychologist.

67 Dr Bell was cross-examined extensively (and on occasions made concessions which I regarded as appropriate but generally of only minimal significance in the overall picture), but his psychiatric opinions were not contradicted by other evidence. In general, I accept them, particularly as his opinions as to the manifestations of the plaintiff’s condition were consistent with the observations of most teachers, friends and employers. He considered the most serious consequence for the plaintiff was her change in personality, particularly loss of sensitivity and loss of control over impulsive aggression and tactless communication. He said she had also lost or had diminished her other frontal lobe functions such as judgment, foresight and the ability to plan behaviour, and that the degradation of her personality rendered her unable to apply her preserved mental capacity to tasks well enough to be able to continue learning and go into useful employment.

68 He noted that the plaintiff had found a potential mate with his own disabilities and thought there was a reasonable prospect of them doing well together, although Mr Kennedy-Gould’s opinion was that long-term relationships by persons with frontal lobe damage were unusual, and the experience of the plaintiff’s current marriage is not encouraging. Dr Bell doubted whether the plaintiff had sufficient judgment and planning ability to rear children adequately.

69 The psychologists, Dr Shores and Dr Roldan initially appear to have proceeded on the basis that she was generally an average or above average student at school prior to the accident and interpreted the IQ testing accordingly; but late in the trial, Mr Heininger, the teacher explained that the classes at that time at Dapto High School were graded academically commencing with the A class, and he described the E and F classes (which included the plaintiff) as “below the line”. In the light of this information and on reading a transcript of part of the plaintiff’s evidence, Dr Roldan in particular, revised his assessment as to the plaintiff’s loss of intellectual function, but conceded that she had suffered a frontal lobe injury and had some residual procedural difficulties as a result of that.

70 In her report of 18 July 2002 (Ex 16), Dr Jones expressed the view that apart from the scarring on her face, her severe head injury had resulted in memory impairment, planning and judgment problems, mood lability and impaired balance. She considered the plaintiff was significantly dependant on her mother for support and would remain permanently and seriously disabled as a result of her head injury and would require two hours supervision with domestic duties and shopping per day.

71 However, after reading parts of the transcript of the plaintiff’s evidence, she expressed the view that her memory and concentration were not as bad as she previously thought. She still considered the plaintiff needed assistance with the structure of her life from time to time, but that she did not require two hours a day in this regard, but only 2-3 hours a week. This seems to have been based largely on the view Dr Jones formed of her ability to cope whilst she and her husband were living in Kiama, but her view as to how the plaintiff coped in Kiama was much more positive than the view I formed. I found her much more dependant on her mother and her potential mother-in-law whilst living in Kiama than Dr Jones seems to have accepted. Moreover, Dr Jones did not observe the plaintiff in her home environment as Mr Kennedy-Gould did, and I consider his assessment of her coping abilities in day-to-day living to be for that reason, more reliable.

72 Mr Kennedy-Gould is an experienced social worker, particularly in dealing with brain-damaged persons (T 1402-3) and I found his evidence most impressive. He first saw the plaintiff at her parents’ business in Dapto in March 2003 when he found her “fatuous to the point of dissociation in discussing these highly significant areas of her future life”. He said she was monosyllabic and rarely finishing an answer. He saw her again in her home on 5 March 2004 and described the level of care and supervision she is receiving from her parents, her attempts to make a cup of tea, her disinhibition and use of bad language whilst speaking on the telephone (T 1407). He was of opinion that the plaintiff needed a carer to cue her for tasks, plan her day and motivate her inertia. He also had the opportunity on that occasion to observe the plaintiff’s interaction with her baby daughter.

73 Evidence was given as to how the plaintiff has been able to care for the baby with the help of her mother who has written out instructions for feeding and taught her to bath and clean the baby, put her to sleep and so on. Defence counsel submitted that this was nothing more than what any mother would do for her daughter when the daughter was caring for her first baby, but I am satisfied this minimises the plaintiff’s disability and the extent of the plaintiff’s mother’s “hands on” assistance, and more importantly, her general supervisory role, which I am satisfied has been substantial.

74 Not only was the hospital reluctant to let the plaintiff take the baby home when new born, but when Mr Kennedy-Gould observed the plaintiff’s relationship with her baby in the home, he described it as “fitful”, and said that if he had been visiting in another capacity, he would have been very concerned for the baby’s welfare. He said:

“I would have absolutely no confidence in her capacity to manage that child without the need of a very high level of supervision. I would put it that the child would be at risk.”

75 Moreover, it cannot be expected that the plaintiff will receive much support in childcare from her husband. Not only was it after the child’s birth that he started working back until very late at night, there have already been two separations and Mr Kennedy-Gould said he knew of very few relationships with brain-damaged partners which lasted any length of time.

76 Moreover, raising a child involves a lot more than keeping it clean, comfortable and properly fed and clothed for the first 12 months of its life. As the child gets older, it needs to be nurtured, trained, educated, taught the difference between right and wrong, taught manners and socially acceptable behaviour and needs someone to deal with the many unpredictable emotional, social and moral problems the child will face as she grows up. On the evidence, I cannot see how the plaintiff will be able to provide these necessities for the child without help.

77 I am satisfied that the plaintiff exhibits a number of symptoms common to persons suffering traumatic frontal lobe damage including change of personality, lack of insight, disinhibited behaviour, lack of planning, organisation and motivation, concrete thinking and some difficulties with memory, she is easily distracted, expresses opinions bluntly and has a loss of sensitivity and control over impulsive aggression amounting to rudeness. She is certainly not as affected as a number of other brain-damaged plaintiffs one sees in the courts, but her problems are nevertheless significant and real.

78 She has retained a substantial degree of her intellectual capacity and a fair share of post-accident memory, but is at time forgetful. She can manage small amounts of money such as household, and motor vehicle expenses and her disability allowance, and read novels, including “Cross-stitch” (Ex 5), but at times she needs to ask her mother to explain or remind her what she has read. She also suffers intermittent loss of balance and residual of facial scarring which she is able to substantially disguise by the use of make up. Dr Lorraine Jones described the residual scarring as follows:

“There was a scar under the nose, extending down to the top lip. There was a long scar extending laterally from beneath her left eye to lateral to her lip and below the lip. There were 3 other short scars near it. There were 6 parallel longitudinal scars on her neck on the left side. There were patchy scars 20cm in size on the distal right forearm and on the left shoulder. I should point out that these scars are superbly covered with make-up, so that she is an extremely attractive young woman in spite of this.”

DAMAGES

79 Having regard to the plaintiff’s brain injury, frontal lobe damage and its consequences including headaches and loss of balance and her facial and other external injuries including the residual scarring, I assess the plaintiff’s general damages at $200,000 of which I attribute $100,000 to the past, and I allow interest on this amount at 2% per annum for 9.25 years $18,500.

80 Out of pocket expenses to date are agreed at $5,390. Dr Buckley recommended regular 3 monthly visits to her general practitioner and annual reviews by her rehabilitation specialist and the plaintiff’s written submissions make an ambit claim for future expenses such as “air conditioning and medical monitoring”. She has no need for air conditioning attributable of her injuries and is not seeing any rehabilitation specialist. She will need to see her general practitioner from time to time to obtain prescriptions for analgesics and will require a regular supply of cosmetics above what is usual to cover the extensive facial and other scarring described by Dr Jones. For future out of pocket expenses I allow $10,000.

81 The plaintiff left school about the end of November 1998 and except for a short period with the photographer at Wollongong and one shift a week stacking at Woolworths whilst Mrs Bamber was the store manager, she has not had any remunerative employment since that time. Some of the witnesses expressed the view that she could work in some forms of selected employment, but she has not been successful in finding a job although I am satisfied she has tried. She did not successfully complete a number of the vocational courses she attempted and her impulsiveness and lack of sensitivity make it difficult for her to relate to other employees or members of the public. She was found unsuitable to become a check out operator at Woolworths and the supervised (and assisted) trial at Best and Less was unsuccessful. Mrs Potter, a person experienced in placing disabled person in the workforce considered her to be unemployable now and in the future. I am of the same opinion.

82 As at 20 November 1998, the average weekly earnings of full-time adult females was $676.00 per week and in the quarter ended 16 May 2003 was $834, an average of $755 (Ex X). The average total weekly earnings in the retail trade where the plaintiff may have worked if not injured (e.g. shop assistant) were somewhat lower - $649.80 in May 2003. Allowing for the plaintiff’s age, vicissitudes of employment, her meagre earnings in the meantime and the birth of her daughter, the plaintiff could have been expected to earn 70% of $755 i.e. $528.50 per week in the period from November 1998 until August 2003 when she was six months pregnant with Ivy. The tax rate on earnings of $528.50 in the approximate middle of that period (2001) would leave the plaintiff with approximately $430.00 net per week. I therefore allow that amount per week from November 1998 to August 2003 i.e. 4.75 years, namely $106,210. I also allow for superannuation at 9% namely $9,559 and I allow interest on these amounts from November 1998 to date, i.e. 6.25 years at 7% per annum, namely $50,649.

83 As to Loss of Future Earning Capacity, I consider that if not injured, the plaintiff would probably have had two children, the second one 2 to 3 years after the first, and would not have returned to the workforce until the younger one started school in about February 2110 and then worked until approximately age 65 (2047) a period of 37 years.

84 Based on the figures provided in Ex X, I estimate the average total weekly earnings for adult females at present to be approximately $880 per week. I do not consider the plaintiff would have earned more than 70% of this amount; namely $616 or approximately $470 per week net, and I allow this amount capitalized at 3% per annum for 37 years (multiplier 1174) namely $657,440 deferred for 5 years (0.863) i.e. $476,186 less 15% for vicissitudes $404,758. I also allow loss of future superannuation at 9% of this amount namely $36,428.

85 In relation to past domestic care and assistance which has been provided by the plaintiff’s family, particularly her mother, I allow 10 hours a day for the first 6 months after the accident, during which time she needed particular care and assistance, at $18 per hour namely $32,760.

86 Since then her parents, her mother in particular, have continued to oversee and motivate the plaintiff, supervise her activities and housework, take her to the doctor, attempt to organise employment, help with shopping and since November 2003, assist with the baby. I estimate the time involved averaged out over the years at about 3 hours per day. I therefore allow 3 hours per day (21 hours per week) from May 1996 to date, that is

May 1996 to date: $18 p/hr at 21 hrs a week for 8.75 yrs $171,990
Plus August 1995 to May 1996 as above 32,760
Total for past domestic care, etc $204,750

87 There was a considerable issue between the parties as to the extent of care and assistance needed into the future. Dr Buckley and Mr Kennedy-Gould suggested 8 hours a day plus a care supervisor, whilst Dr Roldan and Dr Jones considered 2 hours a day sufficient. Having regard to her present level of functioning, 8 hours a day would be ideal and there is much to be said for the view that her quality of life will be diminished if she only receives 2 hours assistance per day; but to provide someone 8 hours a day to instigate activity and ensure tasks are completed would result in such person spending hours sitting around doing nothing, as the need for intervention would be intermittent and sporadic, and would be much more than the parents have been providing to date. In all the circumstances, I consider 3 hours a day should be adequate, possibly an hour in each of the morning, midday and evening.

88 As to the future, I allow 3 hours a day (21 hours a week) for the balance of the plaintiff’s life expectancy 65 years at $18 per hour i.e. $378 per week capitalized at 3% per annum (multiplier 1506.8) namely $569,570. I reject the claims for a case manager and for a home handyman; as to the latter there is no evidence that the plaintiff is physically unable to do any domestic chores.

89 In relation to the cost of caring for the child, I was referred to Sullivan v Gordon (1999) 47 NSWLR 319 where it was held that such cost was recoverable in that case because the plaintiff’s brain damage reduced her ability to determine whether it was appropriate, responsible or reasonable for her to have children, and so there was a causal link between the accident and the birth of the children. Mason P, whose views were not shared by other members of the Court, suggested that such a direct link would not be necessary.

90 This is a very different factual situation to that in Sullivan v Gordon in that promiscuity is not a consequence of the plaintiff’s brain damage, and the child was conceived in the course of a regular, apparently permanent relationship; and if not injured, she would have probably had this or another child in any event; but on the other hand, I am satisfied that it was due to her lack of insight and appreciation of her condition and limitations due to her brain damage that she failed to realise that she would be incapable of adequately caring for the child, and in that regard her decision to have the child was a consequence of the accident and accordingly, the causal link required by Sullivan v Gordon is made out; but with respect to the majority of the Court of Appeal, I suggest that it ought to be sufficient for a plaintiff to show that her need for assistance in caring for the child is itself due to her injuries without the need to analyse whether her decision to have the child was itself due to the accident. Accordingly, I am satisfied that she is entitled to recover the cost of assisting in the care of the child. The difficulty in the present case is to assess such need.

91 I reject the claim for a full-time nanny for the child as I believe the carer will be able, within the 3 hours I have predicated, be able to ensure that the child is properly fed, clothed and cleaned, etc.

92 Beyond those periods, the problem will arise if the plaintiff becomes distracted from watching or supervising the child when the carer is not around. However, these occasions will be spontaneous and unpredictable and I cannot see the provision of a full-time, or even a part-time nanny who still may not be there when needed, as a reasonable cost for the defendants to bear, but consider some allowance should be made in this regard. I therefore allow an extra 3 hours a day (21 hours a week) until the child would be expected to start school, a period of 4 years at $18 per hour, namely $74,428.

93 In addition, I refer to my earlier remarks concerning the need for someone to be available to assist the plaintiff with the nurturing, educating and counselling of the child and dealing with her day to day problems of major and minor illnesses, learning to interact with other children, puberty, teenage years and ultimately careers advice, etc; and with the prospect that the plaintiff’s husband, who to date has shown no involvement with the child, will not be there to assist, the plaintiff will need to have access to someone with proper knowledge, skills and experience whom she can contact when needed or who can check on a regular basis whether such assistance is needed.

94 Such person will be a professional person such as a social worker (although in the foreseeable future the function will probably be carried out by the plaintiff’s mother). It will cost more than $18 per hour although it may only involve on average an hour a week. There is no specific evidence on this point, so I allow $40 per week until the child turns 18 (a period of about 16 ½ years) (multiplier 681.4) namely $27,256 making a total for assistance with childcare of $101,684.

95 The various heads of damages to date may therefore be summarised as follows:

General Damages	$200,000
Interest on general damages to date	18,500
Out of pocket expenses to date	5,390
Future out of pocket expenses	10,000
Loss of earning to date	106,210
Past Superannuation	9,559
Interest on loss of Earnings to date and past Superannuation	50,649
Loss of Future Earning Capacity	404,758
Loss of Future Superannuation	36,420
Domestic Care and Assistance to date	204,750
Future Care and Assistance	569,570
Future Assistance for child	101,684
Provisional Total	$1,717,490

96 I am satisfied that as a result of her injuries, the plaintiff will not be capable of managing her verdict moneys and it will be necessary for appropriate trustees to be appointed and orders made pursuant to the Protected Estates Act 1983. The plaintiff will also be entitled to have the costs of administration added to the verdict. I therefore intend to adjourn the matter so that the appropriate arrangements can be made, the costs of administration hopefully agreed, the calculations above checked for accuracy, and any questions of costs argued before I make final orders in the matter.

FRIDAY 8 APRIL 2005

97 In this matter I delivered a preliminary judgment on the 22 February 2005 in which I determined the issues of liability and provisionally assessed the damages. I then stood the matter over so that my calculations could be checked, an application could be made under the Protected Estates Act 1993 for administration of the moneys on behalf of the plaintiff, to hear evidence, or note any agreement concerning the costs of administration, and to deal with any questions of costs.

98 The calculations have been checked and found to contain a couple of errors. Based on my finding, it was agreed that the amount for past superannuation should be $11,748, that interest on loss of earnings to date and past superannuation should be $51,606, and loss of future superannuation benefits should be $47,743. When these amounts are substituted for the amounts in my earlier judgment, the total becomes $1,731,959. When 20 per cent is deducted from this amount on account of the plaintiff's contributory negligence, the balance is $1,380,567.20.

99 Apparently after considerable effort, the parties have agreed that the appropriate amount for the costs of future administration should be $461,969.50. They are not agreed however on how this amount should be brought into the calculations. Mr Webb QC on behalf of the plaintiff submits that the full amount for future costs of administration should be added to the net amount of the plaintiff's damages namely, $1,385,567.30, which gives a total of $1,847,536.70. Mr Davies SC on behalf of the second defendant does not dispute this approach.

100 Mr Hyde, however, on behalf of the first defendant submits that because of my finding on contributory negligence only 80 per cent of the amount should be added to the plaintiff's verdict. He puts, as I understand his submission, that the costs of future administration is just another element in the assessment of damages, and as all the other elements of damages are in effect discounted for contributory negligence, so should this one.

101 On the other hand it must be conceded that 80 per cent of $461,967.50 will not in theory be sufficient to administer a fund of $1,385,567.20, it being conceded that the amount of $461,967.50 is calculated on a fund of $1,385,567.20, and not on a fund of $1,731,559. Mr Hyde has properly drawn my attention to the obiter of the Court of Appeal in Nicholson v Nicholson (1994) 35 NSWLR 308 at 29-30 where Kirby P indicated that in his view, the full amount of the costs of fund management calculated on the net amount of the verdict after any discount for contributory negligence should be allowed.

102 Meagher JA agreed, and although at 33-4 Mahoney JA indicated that he did not agree, he conceded that he was in the minority, and was bound by previous decisions of the Court. In those circumstances, I am satisfied I should follow the Court of Appeal, and I will allow the full amount of the figure agreed upon for fund management resulting in a total verdict for the plaintiff of $1,847,536.70. For reasons which it is not necessary to detail, no order has yet been made pursuant to the ProtectedEstates Act, and no trustee has yet been appointed. In view of the stay of proceedings that the parties agree should be granted there is no need for this aspect to be attended to immediately.

103 Mr Davies SC on behalf of the second defendant has submitted that I should make a particular order as to costs. As I understand it, his argument has two strings to its bow. He firstly submits that as I generally rejected the evidence of the plaintiff's expert, Mr Moir, on the engineering and related matters about which he gave evidence, I should not allow the whole of his costs, and secondly, that as appears from paras [29] to [32], I rejected a number of the plaintiff's heads of alleged negligence, and as the plaintiff succeeded on only one such head, I should only allow the plaintiff a proportion of her costs, it being conceded that proportion would be well in excess of 50 per cent because a lot of the time was spent on issues of damages. Mr Hyde supports Mr Davies’ submission in this regard.

104 I consider there is some merit in the first part of the submission relating to Mr Moir's evidence. A large part of Mr Moir's first report was excluded because it did not express expert opinions properly based on the factual hypothesis and explained in relation to them, and a lot of the other evidence which he gave were matters in respect of which I did not accept his evidence, and related to issues on which the plaintiff failed.

105 However, his evidence was not entirely without assistance because he gave a significant amount of evidence concerning the layout of the park, the track, the ramps and such like. His evidence as to the humps was not so useful. In all the circumstances I think that the plaintiff should only be allowed 60 per cent of the expenses of Mr Moir.

106 As to the more general submission, there are occasions where a party unsuccessful overall is successful in obtaining an order for costs in respect of the particular identifiable issues on which it has succeeded. The relevant principles are summarised in Ritchie’s Supreme Court Practice at paras [52.11.2], and I refer to what was said by Mahoney JA in Waters v Henderson (Australia) Pty Ltd (CA - 6 July 1994). This is not a commercial case, but a negligence action, and in my experience the general trend in such cases has been that where a plaintiff succeeds on any one head, alleged head of negligence the plaintiff generally receives an order for the whole of the costs. The fact that a number of particulars of negligence are put forward, and one or more succeed, has not in my experience been a ground for depriving the plaintiff for the whole of the general costs of the action, and I do not consider that any such order should be made in this case.

107 I make the following orders:

(1) I direct the entry for judgment for the plaintiff against both defendants for $1,847,536.70.

(2) I order the defendants to pay the plaintiff's costs of the proceedings except that the plaintiff is only to be allowed 60 per cent of the expenses of the witness, Mr Moir.

(3) On each of the cross-claims I direct the entry of judgment for the cross-claimant against the cross-defendant in the sum of $923,768.35.

(4) I order each defendant to pay its own costs of the cross-claims.

(5) The judgments are to take effect as at the 22 February 2005.

(6) I order the amount of the judgment to be paid into Court subject to any further order of the Court.

(7) I grant a stay of proceedings for 28 days on the usual term.

(8) Exhibit 5 to be returned to the first defendant.

(9) The backdating of the judgment is for the purposes of calculation of interest only, and by consent it is agreed that the time for lodging a notice of appeal shall run from today.


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