Russell v Edwards

[2006] NSWDC 155

CITATION:	Russell v Edwards [2006] NSWDC 155
HEARING DATE(S):	3-4/11/04
EX TEMPORE JUDGMENT DATE:	11/23/2004
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict for the defendant. 2. Exhibits retained for 28 days. 3. Plaintiff to pay the defendants' costs of the proceedings on a party and party basis up to and including 2 July 2003 and on an indemnity basis thereafter.
CATCHWORDS:	Swimming pool accident - supervision of under age drinkers - intoxication leading to impairment of capacity to exercise reasonable care and skill.
LEGISLATION CITED:	Civil Liability Act 2002 Liquor Act 1982
CASES CITED:	Cole v South Tweed HJeads Rugby League Football Club Ltd (2004) 207 ALR 52 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 Wyong Shire Council v Vairy-Mulligan v Coffs Harbour City Council (2004) ATR 81-754
PARTIES:	Ashley James RUSSELL Mark & Joanne EDWARDS
FILE NUMBER(S):	Newcastle 165/03
COUNSEL:	P K W Andrews Plaintiff R A Cavanagh Defendant
SOLICITORS:	Chase Lawyers Plaintiff Thompson Cooper Lawyers Defendant

JUDGMENT

HER HONOUR

1 In this matter Ashley James Russell, by an amended ordinary statement of claim filed on 28 June 2004, claimed damages in respect of injuries which he suffered on 25 January 2000 when he was a guest at the defendants’ premises at 17 Vine Street, Seaham where the defendants arranged a birthday party for their son Luke Edwards to celebrate his attaining the age of 16 years.

2 The plaintiff at that time was 16 years old. He is now 21. His injury was suffered when he struck his head on the floor of the pool at the defendants’ premises. He claimed that the defendants were negligent on a number of aspects.

3 Firstly, it was claimed that there were circumstances relating to the pool which were responsible for his injury, namely that there were no depth indicators to mark the shallow end of the pool.

4 Secondly, it was alleged that the lighting for the pool was inadequate so that the plaintiff was not able to see the bottom of the pool when he dived into it.

5 Thirdly, it was alleged that the defendants ought not to have permitted or required the use of the pool in conjunction with the consumption of alcohol by the guests at the party, the majority of whom were under the age of 18. It was also alleged that the defendants were negligent in providing alcohol to minors and in allowing them to consume alcohol to excess whilst on their premises.

6 Fourthly, allegations were made concerning inadequacies of supervision and control, having regard to the age of the persons involved and their consumption of alcohol in conjunction with their use of the swimming pool on the premises.

7 In a notice of grounds of defence filed on 3 September 2003 the defendants denied the allegations of neglect and specifically denied that they supplied alcohol. It was alleged that the plaintiff had voluntarily assumed a risk of injury by diving into the pool after consuming alcohol and it was alleged that the plaintiff was responsible for contributory negligence.

8 As I have already noted the events occurred on 25 January 2000 at a party held at the defendants’ premises at 17 Vine Street, Seaham, to celebrate the 16th birthday of their son Luke Edwards.

9 The plaintiff said that he attended at the party with a number of other acquaintances having been driven there by his father and arriving just on dark at about 8.20. The plaintiff said he went directly to the backyard of the premises where a fire was burning and where there were already present 15 to 20 guests. The plaintiff said on arrival he drank two beers from an esky which Luke Edwards told him contained beer that Mr Edwards, one of the defendants, had provided for people to drink at the party.

10 No evidence was called from Mr Luke Edwards but no point was taken by the other party on this aspect.

11 The plaintiff said he took no alcohol with him to the party but he had previously arranged that a friend, Matthew, would bring a bottle of bourbon with him and that they would share it. The plaintiff said he drank the bourbon with Coca Cola. The plaintiff said that eventually the persons at the party numbered between 25 and 30. These people were consuming alcohol and the plaintiff said that by about 10pm some of them were becoming intoxicated. According to the plaintiff Mr Edwards told him and the others to move into the pool area at about 10pm. The area was fenced. The plaintiff said that at that stage he had drunk two beers only but he was feeling somewhat light-headed. He said he initially did not go into the pool but stayed on the edge drinking bourbon and Coca Cola. He said there were others in the pool area who were also drinking spirits. After about one or one and a half hours the plaintiff said he went into the pool. He said he had not seen Mr Edwards in the area of the backyard during that period. The plaintiff said he jumped in and swam around for about 20 minutes. He then came out of the pool for about a minute and dived in.

12 Asked what he remembered he responded as follows:

Diving in, my face skimming the bottom and then I just remember floating in the middle not being able to swim and so I held my breath until I passed out and then that’s all I remember. And an hour and a half later I woke up, or an hour later, inside.

13 The plaintiff described his memory thereafter as blurry.

14 In cross-examination the plaintiff was questioned as to his definition of intoxication. He stated that he defined intoxication as a condition where one was so drunk that he was unable to control his normal coordination skills and speech was slurred. He stated that at the time of this incident he was not falling down drunk or incoherent and he denied that if he had not been intoxicated he would have been able to judge the depth of the water. The plaintiff agreed, however, that the fact that he was under the influence of alcohol was the factor that caused him to hit his head on the bottom of the pool. He also stated that he had been unable to see the bottom of the pool.

15 The plaintiff said that during the twenty minutes when he swam in the pool he remained at the deep end and had not ventured into the shallow end. He could not remember if he had put his feet down at any stage during the period when he was in the pool. He said he remembered swimming around and holding onto the sides. The plaintiff subsequently conceded that he could not actually recall where he had been swimming in the pool. He denied any memory of what others were doing in the pool but he said that at the time of his final dive he had left the pool and had walked to the end of the pool opposite to that where he had been previously swimming.

16 As far as alcohol was concerned the plaintiff agreed that he had seen only one esky of beer which contained 24 cans or bottles that had been provided by Luke Edwards or by the defendants and he conceded that almost all of the alcohol therefore was brought to the premises by the guests. He agreed that it was common practice amongst his contemporaries at the age of 16 to bring alcohol to parties.

17 He agreed that his parents permitted him to consume alcohol and that he had consumed it at home on rare occasions. He denied that his parents provided him with alcohol. He said that he had drinking for about a year and that drinking alcohol was a common practice in his Year 10 group. He agreed that Mr and Mrs Edwards, the defendants, had generally been sitting inside the house and leaving those attending the party to have their fun in the yard.

18 The plaintiff was unable to identify the point at which his face had hit the bottom of the pool and he was unable, on the photographic evidence, to identify which end of the pool had been shallow and which had been deep. He could state only that it was not very deep where he had dived in. The plaintiff denied that Mr Edwards had told the group at the party that he intended to treat them as adults and he expected them to behave as adults. He denied that he had slipped at the time he went into the pool and struck his head. The plaintiff agreed that he was unaware how far he had dived into the pool or the depth of the water at the point where he struck his head. The plaintiff did not remember floodlighting around the pool and he denied that he saw any lights in the pool. The plaintiff agreed that he had swum in swimming pools before and that he was aware of the obvious requirement to check the depth of the pool before diving in. He said he did not remember taking this action on this occasion.

19 A number of the plaintiff’s colleagues were called to give evidence. Mr Chad Lidbury stated that five or six persons had been swimming in the pool and all of them were leaving the pool at the time of the incident involving the plaintiff. He said that he turned around and saw the plaintiff on the bottom of the pool and he jumped in and pulled him to the side of the pool where Mitchell Cox pulled him out.

20 Jacob Alison also assisted with resuscitation of the plaintiff when he was pulled from the pool by performing compressions on his chest. Mitchell Cox said that he was out of the pool and putting on his clothes when he saw the plaintiff lying on the bottom of the pool. He thought that the plaintiff was lying at the shallow end of the pool pointing towards the shallow end. Mr Lidbury and another person brought the plaintiff to the edge of the pool and he helped to pull him out. He checked and the plaintiff was not breathing and he therefore applied mouth to mouth resuscitation.

21 Before I go further I have to comment that I commend both Mr Cox and Mr Alison for their conduct in the resuscitation of the plaintiff at a time when they must have been under considerable stress and when they were of the tender age of 16 years.

22 Mr Edwards gave evidence on behalf of the defendants. His evidence was that he has resided at the premises for 22 years. He said the pool was installed in 1992. He described it as a semi in-ground pool, oval in shape, 11.5 metres long and 4.5 metres wide. Its depth at the shallow end is 1.5 metres and at the deep end 2 metres. He said the pool was popular with his family and with guests and there had been no prior incidents involving it. He marked on the photograph, exhibit 2B, the position of the deep end and the position of the shallow end.

23 He said that a floodlight was mounted on a pole at the entrance to the pool area. This was also marked on the photographs in evidence. The light was set to shine across the pool area illuminating the whole of the surface of the water and the entrance to the deck around the pool. He said it also provided light to part of the deck. Mr Edwards said there was also lighting in the pool but he did not indicate on the photographs the site of the internal pool lighting.

24 The switch to operate the floodlight and the lighting inside the pool, he said, was positioned on the post on which the floodlight was installed. When these lights were switched on, he said, it was possible to see the bottom of the pool. In addition a floodlight was positioned at the corner of the verandah at the rear of the house on the premises. Mr Edwards stated that on 25 January 2000 the verandah light and the pool lights were switched on and they remained switched on at all times during the party. He stated that the lights were switched on when he attended to the plaintiff shortly after the incident in the pool.

25 Mr Edwards stated that the guests attending the party were aged between 15 and 20 although it was apparent that the majority were under the age of 18. Mr Edwards stated that he had informed his son that he would allow his guests to drink alcohol at the party and that he would allow them to bring their own alcohol. He denied that he supplied liquor for consumption by any of the guests. He said he placed a case of light beer containing 24 stubbies in an esky by arrangement with his son. He said these were purchased for himself and his son to drink. According to Mr Edwards food was supplied in the form of barbecued meat, finger food, salad and bread rolls. He cooked the meat on the barbecue at about 7pm. At that time, he said, some guests had arrived and others were arriving. Others arrived later, he said, around nightfall, that is at about 8.30 or 9 o’clock.

26 During the course of the night he acknowledged that he saw guests consuming alcohol. He said he observed the persons at the party during the course of the evening and he denied that anyone had been heavily intoxicated, describing them as appearing to be merry and enjoying themselves.

27 Mr Edwards stated that he had not observed the plaintiff consuming alcohol on any prior occasion but that he had been informed by Luke Edwards that alcohol had been made available at the plaintiff’s own 16th birthday celebration. This was specifically denied by Mrs Russell, the plaintiff’s mother.

28 Mr Edwards said that he encouraged his children to bring their friends to his home to socialise on the basis that he was able to exercise a greater degree of control and supervision if they were at this home rather than if they were drinking in local pubs.

29 As far as observation of the plaintiff on the night was concerned Mr Edwards stated that he had not made any specific observation of him and he had not seen the plaintiff behaving as if he were intoxicated. He said he had been aware that the plaintiff had brought a bottle of bourbon to the party although he did not know if the plaintiff actually brought it with him or if someone else had brought it on the basis that it was to be shared. He was aware that during the course of the evening the plaintiff had been drinking bourbon because he had specifically asked who was consuming what in the nature of alcohol.

30 Mr Edwards stated that after he had cooked the barbecue he stayed outside the house until his wife arrived home at about 9 o’clock. His wife had been involved in a motor vehicle accident that day and had suffered injury and shock. He went inside the house and stayed in the kitchen which was just inside the back door. He said he could hear music from the party whilst he was in the kitchen. Mr Edwards said that he went out again into the backyard frequently in order to monitor activities, music, bad language and swimming in the pool. In the course of those activities, he said, he had not noticed that anyone was heavily intoxicated.

31 Mr Edwards said that he was in the kitchen when he was informed that there had been an incident concerning the plaintiff. He ran directly to the pool where he moved guests away so that he could assess the plaintiff’s condition. By the time he arrived the plaintiff had been resuscitated and was conscious and there was discussion concerning the calling of an ambulance.

32 In cross-examination Mr Edwards agreed that he was aware that the majority of the guests at the party would be aged 15, 16 and 17 years old and that persons of that age would be bringing alcohol with them. He said he was not aware how much they had brought or the type of alcohol that they brought. He was aware that 15, 16 and 17 year-olds were drinking spirits during the course of the evening. He did not know what any particular person had been drinking and he did not know how much any particular person had had to drink. He stated that he had been drinking light beer from about 7 o’clock.

33 He said the fire in the backyard was lit at about nightfall. He agreed that there were a number of eskies in the pool area. Mr Edwards stated that the pool was the centre point of the evening. He was aware that people using the pool had been consuming alcohol. He stated that he had made specific observation of the lights in the pool because he was particular about these sorts of things.

34 Questioned about the proposition put to the plaintiff that he had made a statement to the effect that no-one was to get drunk and no-one was to dive into the pool, Mr Edwards stated that he had, in fact, said words to that effect although he had not been asked about this in his evidence-in-chief. He subsequently appeared to resile from the suggestion that he had warned against diving in the pool but said that he had spoken to the guests because he was concerned about young people drinking and swimming.

35 In re-examination Mr Edwards stated that he told the guests that they were to behave like adults, that there was to be no rowdy behaviour and no drinking and swimming. He agreed that there were about 20 guests at the party, that they were consuming alcohol, they were swimming in the pool and there was noise from music. He said that he went from time to time to monitor the swimming in the pool and to monitor bad language. He said that he had done this six to ten times after he had finished cooking food and cleaning up.

36 He was not aware who had consumed the alcohol that he had provided to his son and he had not made enquiry about this of his son. He was aware that up to the time of the incident involving the plaintiff his guests had continued to consume alcohol. He said he had been in the pool area prior to this point of time in order to clean up plates, glasses and bottles after the barbecue. He had also been in the pool area to ask the young people to keep the noise down, respect the neighbours and curb their bad language. He denied that this had occurred at a time when he observed that a number of persons were well-affected by alcohol.

37 He said he had cause to focus on the pool area because there had been a lot of noise, there was a lot of running around, shouting, pushing others in the pool and just generally mucking around as young people do. He said this had occurred whilst he was cooking the barbecue and it was hard not to notice. He confirmed that it was clear to him that in the pool area there were under age people consuming alcohol, mucking around, jumping in the pool and wrestling. He said he knew at that stage the extent to which any one of those persons was affected. This was because it was still early in the evening and there was not a large volume of alcohol there.

38 He said he had not at any time seen any person dive into the pool. At the time one of the guests came to inform him of the plaintiff’s accident he had been in the kitchen playing cards with his wife and his two daughters. He denied that at that stage he had been unaware of what was happening in the backyard because the music was very loud and the language was very offensive. This, he said, had been going on for some time and he had gone often out into the backyard to deal with it.

39 He did not at any stage direct the guests to come out of the pool area or direct them to cease swimming. This was not withstanding that they were consuming alcohol, behaving exuberantly, swearing and using bad language and that they had been throwing one another into the pool.

40 Mr Edwards denied that he had directed people into the pool area. He agreed that the depth of the pool had not been marked.

41 It will be noted from this summary of the evidence of the plaintiff and Mr Edwards that there are a number of factual issues in dispute between them. Some of those issues can be dealt with easily and others require more detailed attention. Those issues are as follows:

Pool Lighting

42 I am satisfied on the evidence that there was some lighting in the area of the pool. The plaintiff’s witnesses were unable to state precisely what lighting was available and referred only to the lighting outside the pool. Some of those witnesses said it was adequate, others regarded it as dull or not very good. None of them was able to remember the situation concerning the lights in the pool itself. However, none suggested that absence of lighting made it not possible to see the bottom of the pool. Having regard to the evidence concerning the pool lighting I am not satisfied that inadequacy of lighting was a factor in the accident.

Depth Indicators

43 It was agreed by Mr Edwards and all witnesses that no depth indicators had been installed at any point around the swimming pool. This factor could only be significant if I accepted the plaintiff’s evidence that he had not, prior to the accident, been in the shallow end of the pool. It was apparent from the evidence of his witnesses, particularly that of Mr Lidbury, that the plaintiff had moved around in the pool as much as other guests who were using the pool at the time. Having regard to this evidence I am not satisfied that the absence of depth indicators was a factor in the accident.

Conduct in the Pool

44 The evidence of the plaintiff, Mr Edwards, Mr Lidbury and Mr Cox indicated that there was considerable exuberance in the way in which the swimming pool was being used immediately prior to the plaintiff’s accident. It is also apparent from Mr Edwards that although the plaintiff had joined in the games being played in the pool only 20 minutes before his accident, that is at about 10pm, the exuberance had started between 7 and 8pm when Mr Edwards was cooking at the barbecue. On Mr Edwards’ evidence he had been required to admonish the users of the pool whilst he was cooking and when he was cleaning up after the barbecue between 8 and 9pm. In addition to conduct which was said to have involved running, shouting, pushing others into the pool, jumping in the pool, jumping on other persons’ backs, wrestling and generally mucking around it was acknowledged by all witnesses, including Mr Edwards, that persons using the pool were at the same time consuming alcohol.

Alcohol

45 The evidence established that Mr Edwards supplied at least one esky containing 24 stubbies of beer. Much of Mr Edwards’ evidence was designed, in my view, to minimise the extent to which the Court might be critical of the way in which the events at his son’s 16th birthday party were allowed to unfold. It was clear that he had agreed in advance that he would permit his son’s guests to bring to and consume alcohol on the premises. He was aware that the alcohol that was brought included beer and spirits. Further, although Mr Edwards denied that he had supplied beer for the consumption of any person other than himself and his son, it was apparent that the beer in the esky was available to and was, in fact, consumed by any person who chose to take it.

46 The evidence established that the majority of the guests were under 18 years of age and that during the course of the evening many of them, including the plaintiff, consumed beer or spirits. The plaintiff’s friend Matthew, by prior arrangement with the plaintiff, brought a bottle of bourbon which he shared with the plaintiff. Mr Edwards was aware of this. He saw the guests drinking in the area of the pool. He did not, at any stage, direct guests to leave the pool area or to stop swimming.

Alcohol and the Plaintiff

47 The plaintiff’s condition is a critical factor in this case. His evidence concerning the extent to which he was affected by alcohol was confused and contradictory. His definition of intoxication I have already referred to, namely one where a person was so drunk that he was unable to control his normal coordination skills and where his speech was slurred.

48 Initially he stated that he had been intoxicated in accordance with the definition. As a result he said he had been unable to make a decision concerning the depth of the water and he stated that the fact that he was under the influence of alcohol was the factor that caused him to hit his head on the bottom of the pool. He also said that he had not been so intoxicated that he was falling down. He denied that if he had not been intoxicated he would have been able to judge the depth of the water because he said he had not been able to see the bottom of the pool.

49 The evidence of the plaintiff’s witnesses was either that they had not taken notice of the plaintiff’s condition or that he did not appear to be unduly affected by alcohol. Mr Edwards said that he had not specifically observed the plaintiff, although he had been aware that during the course of evening he had been drinking Bourbon. He had not seen the plaintiff behaving as if he had been intoxicated.

Supervision

50 Another critical factor was the level of supervision employed. There was a distinct conflict between Mr Edwards, the plaintiff, and the plaintiff’s witnesses concerning the extent of the supervision exercised by the defendants during the course of the evening.

51 It was put to the plaintiff and his witnesses that Mr Edwards had admonished the guests in terms that he would treat them as adults and that he expected them to behave as adults. They all denied hearing any such statement. Mr Edwards’ version of his statement, as I have noted already given in re-examination, was that he told his guests that they were to behave like adults, there was to be no rowdy behaviour and no drinking and swimming.

52 Having regard to the preponderance of the evidence I am not satisfied that any statement was made to the guests at this party. Moreover if Mr Edwards did speak to the guests as he stated he clearly did not enforce his direction because he accepted in the course of his evidence that there was in fact rowdy behaviour and that those guests who were in the pool area were drinking there.

53 Mr Edwards’ evidence was that he remained in the yard until about 9 o’clock and that after that time he went into the yard frequently to monitor activities. This evidence is also contrary to the evidence of the plaintiff and his witnesses, each of whom indicated that he had been in the backyard “a couple of times”.

Findings

54 My findings, having reviewed this evidence, as follows:

1. The issues concerning the lighting and the depth of the pool are not of significance in the determination of the claim. I accept the evidence that indicates that there was lighting at the pool and the deck area and that there were lights in the pool itself. I find that these lights remained switched on at the time of the plaintiff’s accident.

2. I do not accept the plaintiff’s evidence that the bottom of the pool was not visible to him at the time he dived into the pool and struck his head.

3. I do not accept that Mr Edwards gave any direction to the guests at the party concerning their consumption of alcohol, their behaviour or the use of the pool at the time they were drinking.

4. I find that Mr Edwards did not patrol the backyard with the frequency that he claimed. I find that, having regard to the fact that he was aware that those using the pool area were also consuming alcohol, he exercised insufficient supervision and control over the activities of the young men in that area.

5. The evidence indicated that their activities were extremely boisterous, their voices were raised sufficiently for Mr Edwards to hear them in his kitchen and to be aware that they were using bad language. I find that Mr Edwards patrolled the backyard on about two occasions only after the barbecue had been cleaned up at about 9 o’clock. The evidence of Mr Edwards was that Mrs Edwards did not return to the premises until 9 o’clock. She was seen by some of the witnesses also only on a couple of occasions.

It was put to me in argument that the guests at the party were young men who did not relish constant supervision and who were of an age where constant supervision was in fact inappropriate. This proposition is somewhat inconsistent with Mr Edwards’ statement that he had encouraged his children to bring their friends home so that he could exercise a greater degree of control and supervision over their activities.

6. I find that the plaintiff was affected by alcohol at the time of his accident. He was 16 years old. There was some evidence that this was not the first occasion upon which he had consumed alcohol but that the age of 16 it would be extreme to find that he was an experienced drinker with a high level of tolerance for alcohol.

7. I find that the plaintiff was correct in his evidence that his level of intoxication was such that he had been unable to make a proper judgment concerning the depth of the water into which he dived before he struck his head on the bottom of the pool.

55 The issue then becomes one of whether, in the light of these findings, the law imposes upon the defendants a duty of care to the plaintiff and whether in the circumstances that duty was breached. Assessment of the duty of care involves considerations concerning the obligations of the defendants in respect of the plaintiff’s consumption of alcohol and obligations relating to the ordinary every day risks of participating in recreational activity. In this respect the parties agreed that the plaintiff had not at the time of his injury been involved in a dangerous recreational activity for the purposes of the Civil Liability Act 2002.

56 My attention was drawn to a number of decisions including Wyong Shire Council v Vairy and Mulligan v Coffs Harbour City Council (2004) ATR 81-754 where Beazley J at paragraph 24 identified the issues involved as directed at whether a public authority should be liable for a negligent failure to warn of conditions brought about by natural phenomena. It is apparent from this identification of issues that those are decisions that are not relevant to the current case. Nor is this a situation where the occupier is being asked to take responsibility for a defect in the condition of the premises. The argument in negligence on the part of the occupiers was essentially the question of control and supervision given the circumstances that prevailed on 25 January 2000.

57 I am aware of the decisions of the High Court in the Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 and Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52. In respect of these decisions aside from pointing out to me that s 114 of the Liquor Act prohibits the supply of alcohol to a minor, no allegations of illegality were raised by the plaintiff or the defendant. In Cole the Court was considering the circumstances where a plaintiff of mature years indulged in an over consumption of alcohol and subsequently on different premises suffered injury. In my view the circumstances of that case were sufficiently different to warrant distinguishing it from the current circumstances.

58 The current circumstances involved the defendants entertaining on their premises young persons who required, by reason not only of their age but also by reason of the fact that they were permitted to consume alcohol, a considerably greater degree of supervision than the evidence established was made available to them. It is my considered view that the defendants being in a position to control the activities on their premises on that night were under an obligation, at law, to do so and that they failed in that obligation. The risk to the plaintiff in circumstances where alcohol and a swimming pool were involved, in my view, were foreseeable. The risk was such that a reasonable person in the position of the defendants ought to have recognised that preventative action should have been taken. The preventative action, in my view, would have been to have closed the swimming pool. In those circumstances on the ordinary common law basis the defendants would be responsible to the plaintiff in negligence.

59 The next question that arises is whether the plaintiff’s claim is defeated by reason of the provisions of Part 6 of the Civil Liability Act 2002. The provisions of that Part of the Act deal with intoxication. S 50 denies recovery to a person when it is established that the person at the time of the act or omission that caused his injury was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired.

60 I have already made a finding that the plaintiff’s level of intoxication led directly to his misjudging the depth of the pool when he dived into it and thus to his injury. It appears therefore on the face of it that s 50 applies to his circumstances. There are two exceptions set out in s 50 of the Act to the prohibition that is contained in that section.

61 The first is where it is established that the injury was likely to have occurred even if the person had not been intoxicated. In my view that has not been established in this case. One would not ordinarily anticipate a risk that a 16 year old, having all his faculties, using a backyard pool would misjudge the depth of the pool to the point where he would suffer injury.

62 The second exception applies in circumstances where the Court is satisfied that the intoxication was not self induced. The evidence was that the plaintiff was fully aware of the consequences of alcohol and that he exercised his own free will in consuming the alcohol that he had been allowed to bring to this party.

63 I have noted that there are no degrees of impairment specified in s 50 and there are no exceptions provided in that section for minors or for persons inexperienced in the consumption of alcohol. Nor does it appear to allow for circumstances where the impairment resulting in intoxication is but one of a number of elements leading to the occurrence of an incident causing injury.

64 It was argued for the plaintiff that the words “At the time of the act or omission that caused” his injury must be interpreted so as to encompass the conduct of the defendants which permitted the activities of the party guests in swimming and consuming alcohol without adequate supervision so as to result in the impairment of the plaintiff’s capacity to exercise reasonable care and skill. As a result it was argued that the section does not apply in this case.

65 In my view that interpretation of the section stretches the language to the point where it cannot be accepted. It can be seen therefore that the terms of Part 6 of the Civil Liability Act 2000 are extremely harsh.

66 In Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 Heyden J noted that it is necessary to consider the purpose of legislation which limits circumstances in which compensation is to be awarded. The clear emphasis of the Civil Liability Act is placed upon personal responsibility. According to Heyden J that the legislation results in outcomes that are irrational, anomalous or harsh is not decisive.

67 In this case I am faced with a situation where I have no hesitation in finding neglect on the part of the defendants. This neglect led to significant injury to the plaintiff in circumstances where his right of recovery is denied him by reason of Part 6 of the Civil Liability Act 2002. In my view these consequences were not those that were considered by those who drafted the legislation and I would seriously recommend that those responsible for the legislation re-visit the provisions of Part 6 of the Act in order to assess the harshness of its consequences.

68 In the event that this matter goes further I have assessed the plaintiff’s damages in the following terms.

69 The plaintiff stated that he had no memory of events for about an hour or an hour and a half after he was resuscitated. He was taken from the defendants’ premises after 3.30 on the following morning having complained to Mrs Russell of kinking in his neck and pins and needles in his arms. He was taken to the John Hunter Hospital and thereafter to the Royal North Shore Hospital where he was diagnosed with a displaced fracture of the C5 vertebrae with other damage at the C4, 5 and 5, 6 levels.

70 He was treated at the Royal North Shore Hospital by Dr Ryan, an orthopaedic specialist, and Dr Sears, a neurosurgeon. He was placed in a Minerva jacket for eight weeks. The plaintiff continued to complain of pain in his dominant right arm and this pain was diagnosed as related to his spinal injury. By 16 February 2000 the neurological registrar reported that the plaintiff was managing well with no complaints of neck pain but with continuing complaints in respect of his right arm. He remained in the Minerva jacket at that time.

71 On 15 March 2000 the jacket was removed and it was stated that the plaintiff’s symptoms of weakness and numbness in his right arm had totally resolved and he had no residual neck pain.

72 On 16 August 2000 the neurosurgical registrar reported that investigations had shown good healing of the vertebral artery, symptoms of dysaesthesiae were reported to have been completely resolved and the plaintiff’s arms were said to feel normal. The registrar reported that the plaintiff had understood that with the change in his cervical spine he had an ongoing risk of neurological deterioration either from syrinx formation or from cord compression. He stated that if symptoms in his hands or legs developed, such as numbness or difficulty walking, he would need to be re-examined.

73 From a medico legal point of view the plaintiff was seen by Dr Plowman and Dr Kerridge. Dr Plowman in February 2003 noted the plaintiff’s continuing complaints concerning neck pain, stiffness in his neck and stated that the injuries would limit the plaintiff with heavy labouring and manual work and work where there was prolonged driving or travelling. It would limit him in vigorous sport and body contact sport. The condition, according to Dr Plowman, was permanent and there was an increased risk of the premature onset of degenerative disc disease in the neck.

74 Dr Kerridge was of similar views. He noted some degree of restriction in the plaintiff’s capacity to rotate his neck. He stated that he did not think that the plaintiff would make a full recovery from his injury. He would need to avoid contact sports and long distance driving. He would not be able to play rugby or return to boxing. Dr Kerridge was of the view that it was likely that the plaintiff would develop some degenerative changes in his neck over time. He thought that a spinal fusion might be required although it was unlikely. Dr Kerridge was of the view that the plaintiff would be able to pursue a career in carpentry should he wish to do so.

75 The plaintiff not only complained of problems in relation to the injury to his neck but also of cognitive impairment as a result of a period of loss of consciousness during the course of this incident. An early report was prepared by Dr Perdices and Ms Freer in September 2000 in which some deficits were noted and it was suggested that the plaintiff be followed up at a later stage.

76 The plaintiff was seen by Dr Batchelor in May 2004. She noted complaints of lack of motivation and affects on capacity to concentrate. She also noted that the plaintiff stated that he could be moody and irritable. Her tests, she said, indicated that the plaintiff’s IQ level was of low average to average which she had expected having regard to his pre accident school reports, but, she said, there was also some evidence of problems involving reasoning, planning and problem solving. There was no evidence, she said, of any mood disorder to account for the plaintiff’s poor motivation which was potentially related to frontal lobe damage.

77 The only evidence presented in respect of the plaintiff’s condition by the defendant came from Dr Roldan who also assessed the plaintiff’s complaints of cognitive impairment. He did not accept that the accident was responsible for any brain damage which had resulted in cognitive impairment. He stated, however, in his concluding paragraph that it was possible that pain induced distraction might give rise to fluctuations in concentration and effort that resulted in the report of impaired cognitive processes. Similarly he said physical discomfort and associated restrictions and fatigue could give rise to some reactive psychological symptoms such as frustration and irritability.

78 Dr Davis also examined the plaintiff. Dr Davis is an expert in occupational medicine. His report indicated a picture of deterioration, potential deterioration in the plaintiff’s health and condition. He examined the plaintiff and noted his complaints and looked at the records concerning his treatment. He stated that the plaintiff had been left with ongoing pain and impairment relating to his neck and some minor subjective sensory difficulties in his right hand. He said he is now permanently restricted with regard to any heavy or forceful work as well as work involving static loading of the upper spine, work above mid chest level or heavy carrying. He said there would be significant impact upon all spheres of the plaintiff’s life in the future as a result of his injury and particularly on his ability to involve himself in any form of contact sport or sport which would result in sudden jarring on his upper spine.

79 He did not think that the plaintiff was suited to trade qualification as a carpenter believing that it would be inappropriate due to the frequent requirement to undertake heavy lifting and carrying as well as working in confined spaces. In addition he was not suited to work involving heavy physical manual activity or prolonged periods in front of a computer.

80 He said the plaintiff required formal vocational and functional assessment to assist him to determine clearly his future vocational goals in keeping with his physical disability, intellectual capacity, interests and experience. He said there was already an indication of instability in the plaintiff’s cervical spine and with increasing degenerative changes and subsequent increased levels of instability the plaintiff would be considered suitable to undergo a fusion procedure at a cost of $12,000.

81 As I have noted there was no evidence from the defendant in response to this prognosis of Dr Davis.

82 The plaintiff’s own evidence was that at the time of the accident he had finished Year 10 at school and was proposing to proceed to Year 11 in 2000. This proposal was interrupted by reason of the period of recovery from his injury. The plaintiff’s aspiration was ultimately to proceed to a carpentry trade or to a career in rugby league.

83 He subsequently moved to live with his aunt in Wollongong and undertook one half of a year of study at Year 11 level at the Illawarra Senior College. He said he did not complete this course because of his complaints of neck pain.

84 In May 2000 he secured employment with Westpac which was arranged through his brother. This work was desk work involving data entry. In September he ceased this work complaining that travel from his brother’s home at Kingsford to Pitt Street in Sydney by bus caused him neck pain and that he had problems with concentration and difficulty with the requirement to sit for long periods.

85 In 2001 he went to Queensland where he undertook some work picking grapes. This, he said, created stiffness in his neck and he had difficulties with it because of the problems of numbness in the wrist and fingers of his right hand.

86 In October 2002 he returned to his employment at Westpac for a period of three or four months, again abandoning it because of discomfort. Since then he has had periods of unemployment in Queensland and in Newcastle.

87 The plaintiff said that whilst he was employed at Westpac he was earning about $700 per week. He said he has not looked for work because he does not have motivation to do so and he lacks capacity for concentration. He takes Valium for medication once or twice a week when his symptoms require it.

88 The plaintiff gave no indication of his future intentions. He said he is able to drive although he has problems turning his head and sitting for long periods in a car.

89 The plaintiff stated that prior to his injury he had aspirations to play rugby league professionally, he is now not able to play this sport because of the difficulties involved in contact sport. He agreed that at 15 he had not played representative football and had not been selected by any talent scout to go forward. He has had some training in traffic control and has undertaken a course in occupational health and safety.

90 The plaintiff accepted that he would be able to find some suitable work notwithstanding the condition of his neck, although he did not appear to be able to indicate what he might consider to be suitable. He stated that his neck pain can come on at anytime and is not dependent upon any particular activity.

91 It was apparent from the plaintiff’s history that he was born with a condition of mild cerebral palsy, which according to his mother, Mrs Russell, had been overcome by the time he was 18 months old. Mrs Russell stated that her son’s personality had changed because of the restrictions on his activities resulting from his injury. She said he frequently becomes angry and upset.

92 In assessing the plaintiff’s general damages I have accepted that the injury which he suffered to his cervical spine was one of considerable seriousness. He had the good fortune to receive treatment, as I have noted from his colleagues and to receive specialist treatment at the Royal North Shore Hospital which has allowed him a considerable improvement in what otherwise might have been very, very serious consequences to the quality of his life. However he is young and he continues with pain and discomfort and the prospects of a deteriorating condition.

93 Any consequences in terms of cognitive impairment on the evidence is at the most mild, but I am inclined towards the view of Dr Roldan that the plaintiff’s complaints of lack of motivation and affect on concentration are more likely the result of the symptoms suffered through his physical injury.

94 I have assessed his general damages at 40 percent of a worst case which would lead to an award of $160,000.

95 As far as employment is concerned, I have already noted the absence of motivation and the apparent absence of effort on the part of the plaintiff in securing employment. The most likely future circumstances, but for his injury, in my view would have been that he would have progressed towards a trade. He favoured carpentry and there is no reason, in my view, why he would not have pursued that avenue of employment. As far as the career in football league is concerned, on the evidence I could not put that as more than a possibility and I have not taken it into account in assessing his damages.

96 Exhibit P indicates that as a junior apprentice the plaintiff might have expected, with allowances, to have earned over a three year period between $250 and $500 gross per week. Thereafter the document indicates that the plaintiff’s expectations might have been about $700 per week gross if he were employed on a full time basis.

97 As far as the past economic loss is concerned I note that the plaintiff has undertaken some work but I do not think it is unreasonable to assess his past economic loss on the basis of an average of $200 per week over 156 weeks as claimed and therefore I would allow him the sum of $31,800 on this head of damage plus superannuation would be allowed in the sum of $2,995.

98 As to the future it is apparent that the plaintiff would not be able to pursue a career in carpentry. He could not undertake heavy labouring work and it is clear that he is not academically gifted. He is therefore significantly restricted in his employment options. I therefore accept the claim made on his behalf of a future economic loss of $150 per week to the age of 65 and I would allow the sum of $120,423 on this head. Superannuation would be allowed in the sum of $13,005.

99 Past out of pocket expenses would be allowed in the sum of $826.90. As far as the future is concerned I have noted the ongoing need for medication, whether it remains as Valium or some other form of medication is not relevant and I have noted that there is a likely need for further treatment, although surgery is at this stage only put forward as a possibility. I would therefore allow the plaintiff for future out of pocket expenses a sum of $7,500.

100 Finally it would be necessary were I able to make an award in favour of the plaintiff to consider the question of contributory negligence. In this case it seems to me that the plaintiff at the age of 16 must take some share of the responsibility for his injury. He chose at that age to consume alcohol and to swim and, although in my view, as I have already noted, a degree of supervision was still required, I would have assessed, were I to make an award in his favour, his level of contribution to the damage which he suffered at 25 percent.

101 Regretfully however I am not able to make an award in favour of the plaintiff and thus the orders which I make are as follows; there were will be verdict for the defendant. The exhibits will be retained for 28 days.

EVERS: Your Honour I’ve been given some material from my instructing solicitors and some letters seeking a departure from the usual orders for costs.

HER HONOUR: Yes.

EVERS: We’re seeking indemnity costs from 2 July last year. If I might show my friend some correspondence and tender four letters to your Honour. Your Honour the first is of 2 July 2003 from Thompson and Cooper to Cunningham Adam.

HER HONOUR: Ms Engel do you have anything to say about this?

ENGEL: No I don’t your Honour.

HER HONOUR: Having regard to the correspondence forwarded to the plaintiff’s solicitor by the defendant’s solicitor, in particular the letter of 2 July 2002 the plaintiff is to pay the defendants’ costs of the proceedings on party and party basis up to including 2 July 2003 and on a indemnity basis thereafter.

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