Scarf v State of Queensland
[1998] QSC 233
•30 October 1998
IN THE SUPREME COURT
OF QUEENSLAND
No 1272 of 1993
Brisbane
[Scarf v. State of Queensland & Anor]
BETWEEN:
SEAN JAMES SCARF
Plaintiff
AND:
STATE OF QUEENSLAND
First Defendant
AND:
COUNCIL OF THE CITY OF GOLD COAST
Second Defendant
CATCHWORDS: PERSONAL INJURY - tetraplegia - diving from bridge into creek - whether duty owed by highway authority - whether duty owed by local authority - whether warning signs required - higher guardrail - causation - quantum - employment prospects - future needs.
Counsel:Mr P Dutney QC for plaintiff
with him Mr R Morton
Mr S Williams QC for first defendant
with him Mr M Burns
Mr AJH Morris QC for second defendant
with him Mr J Rolls
Solicitors:Ebsworth & Ebsworth for plaintiff
(Murphy & Schmidt)
Crown Solicitor for first defendant
McLaughlins for second defendant
Hearing Dates: 10 to 17 August 1998
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 30 October 1998
The plaintiff is a 29 year old man who sustained serious spinal injury on 25 September 1990 when he was almost 21 years, after diving head first from the guardrail on the Tallebudgera Creek bridge into the water below. As a consequence of his injury the plaintiff suffers from complete tetraplegia. A four lane highway which is the main north-south east coast of Australia road, passes over that bridge. The plaintiff gave instructions that he sustained his injury on 24 September and that date appears in the original pleadings and in many of the medical reports when the information was obtained from him. The pleadings have been amended to reflect the correct date and nothing turns upon it, but is mentioned to explain the discrepancy in some of the reports.
The plaintiff has sued the State of Queensland as representative defendant, for the Commissioner of Main Roads and/or the Director-General, Department of Transport, in whom property in the bridge/road was vested pursuant to s.8 of the Crown Proceedings Act 1980, for failure to erect signs warning of the dangers associated with diving from the bridge or signs prohibiting diving and/or failing to erect a higher guardrail which would prevent such activity. There is no issue about the identity of the first defendant and it is convenient to refer at times to the Commissioner or to Queensland Transport, or simply to the first defendant.
The plaintiff has sued the Council of the City of Gold Coast (“the Council”) as second defendant essentially for failure to erect warning signs alerting him to the dangers associated with diving from the bridge consequent upon its alleged powers in respect of this road and its occupation of a nearby recreational area.
Both liability and quantum are in issue.
I N D E X
No:
ITEM
PAGE NO:
1
Facts
4
(a) Tallebudgera Creek Bridge, its History and Recreational Use 4
(b) The Plaintiff and Tallebudgera Creek Bridge 8
(c) The Plaintiff’s dive on 25 September 1990 9
(d) Knowledge of the Defendants about the Recreational Use of the Bridge 12
2.
Liability
13
(a) Would a Sign Have Made a Difference? 17
(b) Would a Higher Guardrail Have Made a Difference? 20
(c) The Top of the Guardrail as a Natural Platform 24
(d) The Statutory Functions and Powers of the First Defendant 24
(e) The Statutory Powers of the Second Defendant 26
No:
ITEM
PAGE NO:
(f) Did the Defendants owe the Plaintiff a Duty of Care? 27
(g) Liability of the Second Defendant 28
(h) Duty of Care of the First Defendant 30
(i) What Ought to have been the First Defendant’s Response? 31
3
Volenti Non Fit Injuria
34
4.
Contributory Negligence
35
5.
Quantum
35
(a) Pain, Suffering and Loss of the Amenities of Life 43
(b) Loss of Life Expectancy 44
(c) Special Damages 44
(d) Past Gratuitous Care and Assistance 45
(e) Future Care 50
(f) House Modifications 52
(g) Recurring Future Costs of Home Maintenance 57
(h) Future Aids and Equipment 57
(i) Economic Loss Past and Future 62
(j) Past and Future Loss of Superannuation Benefits 64
(k) Future Pharmaceutical Expenses 66
(l) Fertility Program Costs 66
(m) Future Hospitalisation Costs 68
(n) Future Medical Expenses 69
(o) Future Therapy Expenses 69
(p) Holiday Expenses 69
(q) Cost of Fund Management 70
(r) Damages Summary 71
6.
Conclusion
72
7.
Schedule
73
Facts
(a)The Tallebudgera Creek Bridge, its History and Recreational Use
Those who have seen Tallebudgera Creek and its surroundings at the site of the bridge as it runs towards the sea would be likely to describe it as a charming and most attractive place. On the north side from the bridge to the ocean is a heavily treed National Park. On the southern bank near the bridge is a popular sandy beach with nearby amenities provided by the Council including a caravan park, amenities block, parking and lawns (exhibit 1, photograph no.1). As the aerial photographs (exhibit 45) show, the surrounding areas are otherwise heavily populated.
The Tallebudgera Creek at the point of the bridge is a wide tidal watercourse a short distance from the Pacific Ocean (exhibit 1, photograph no. 1). At high tide the level of the creek is about 5 metres below the level of the bridge. The bottom of the creek consists of shallow sandy shoals for about three-quarters of its width from the southern bank with a deeper channel on the northern side. The northern side of the creek is confined by a vertical rock face or wall which extends several metres above the waterline (exhibit 1, photographs nos. 2 and 3, exhibit 44). The location of the channel is usually able to be seen by an observer on the bridge and the shallower sandy bottom is clearly visible across the width of the bridge even at high tide. The configuration of the creek, its sandy shoals and the channel can be seen in aerial photographs taken in 1997 (exhibit 45). The normal width of the channel, according to Mr Patterson, an expert in coastal management engineering, is 60 metres plus or minus 5 metres, but in 1990, as a consequence of two episodes of flooding the main channel appeared to widen out to about 90 metres on the southern side which was deeper than the sandy shallows but shallower than the channel proper. This factor plays no part in this accident.
From the late 1930s a bridge spanned Tallebudgera Creek in the same position as the southbound lanes of the present bridge. That bridge had a timber deck supported by a reinforced concrete pylon substructure with one lane of traffic in each direction. The Department of Main Roads constructed a new bridge to the west of the old bridge in the late 1960s which now carries the two northbound lanes of traffic. The old bridge was then demolished and the present southbound lanes constructed in its place joined as one bridge with the northbound lanes. The new bridge is approximately a half a metre higher than the old bridge. The old bridge had a guardrail on both sides constructed of joined water pipes with a mid-rail which can be seen in a photograph (exhibit 4) taken in 1968 when construction of the new bridge had just commenced. The present bridge has concrete pylons with a concrete deck on which is laid the four-lane highway. There is a pedestrian footpath on each of the eastern and western sides of the bridge.
There was no evidence about the original guardrails of the present bridge but by 1983 they required maintenance and apparently looked unsightly. They were replaced towards the end of 1984 by the Department of Main Roads at the request of the Council at an estimated cost of $87,909 (exhibit 35). The rails are approximately 1,140 millimetres high supported on posts approximately 110mm x 70mm at approximately 1,800mm intervals. The top and bottom rails measured 50mm x 30mm in cross section. The vertical balusters were measured at 25mm square at 150mm centres fitted between the top and bottom rail. The top of the rail measured 970mm above the top of the bottom rail. Photographs and sketches in Dr F Grigg’s report (exhibit 31) illustrate the guardrail. A narrow ledge, which does not appear to have been measured, extends the bridge deck beyond the rails.
The guardrail is of aluminium alloy and complies with the requirements of the Australian Roads Bridge Design Code 1992 cl 1.6. It is not suggested that it did not comply with the relevant codes in 1990. Overhead light poles are positioned at regular intervals fixed to the external thickness of the bridge deck outside the guardrails.
The channel runs approximately between the first and second light poles from the northern end of the bridge as seen in several photographs but most clearly in photograph 2 of exhibit 1 and the aerial photograph, exhibit 45. The plaintiff dived into the creek from the top of the guardrail on the eastern side of the bridge next to one or other of those light poles.
At the time when the plaintiff was injured the channel had a depth of approximately 5 metres. Mr Patterson assessed the tide level at about the time when the plaintiff said he dived into the creek at about 10.45 a.m. as +0.3 to 0.4 metres above the main tide level and rising. High tide was approximately 12.30 pm. The current would have been travelling upstream and readily discernible to anyone observing it. The plaintiff said that the tide had peaked when he dived, but nothing turns on this and he may have been mistaken as to the time when he left the beach.
Mr Cameron is an engineer who had supervised repairs to the old Tallebudgera Creek bridge in the late 1950s when he was an employee of the Department of Main Roads. He recalled the bridge being used for recreational purposes going back to the late 1930s. He swam in a popular swimming hole downstream from the old bridge and recalled that it was a reasonably popular pastime for mainly young boys to go on to the bridge and jump into the water, although he had not done so himself. He did not remember seeing any person dive into the water from the bridge. Whilst Mr Cameron was working on the bridge in the late 1950s he noted that it was still a popular pastime for boys to walk on to the bridge and jump off into the water below. He did not recall seeing any person jump from the guardrail but pointed out that the rail, being constructed of narrow piping, did not give a secure foothold.
Mrs J Browning had been a member of the Neptune Royal Lifesaving Club from 1954 to 1960 as a young girl and from 1989 to 1992 as a adult. The club conducted patrols between 10.00 am and 4.00 pm at Tallebudgera Creek on the southern beach during the weekends from about September to Easter. From her answers it was not clear whether this occurred only during school holidays or on weekends other than those in school holidays but that is of no moment. Mrs Browning attended at the club approximately each second or third weekend. She could observe from the patrolled beach thirty or more people on “good” weekends, depending on the state of the tide, diving or jumping from the bridge into the water. The same people jumped or dived more than once and she agreed that there could be up to 200 to 300 jumps per day. The people diving or jumping were in the main aged from about 9 years and into their teens. She saw some of these young people jump from the decking of the bridge outside the railing and some from the top of the guardrail. She did not ever see any person dive headfirst from the top of the guardrail into the water. The bridge was “out of bounds” for those associated with the lifesaving club “... because it was dangerous for children or anyone. There was a four-lane highway as well”, (t/s 217 l.11). In hot weather there would be hundreds of people bathing on the sandy southern shore of the creek.
Mrs Browning recalled that there were signs warning people against jumping or diving off the bridge but could not remember where they were situated, that is, whether in the club area, on the beach, in the recreation grounds, at the approaches to the bridge or on the bridge itself, or what was written on the sign. No other witness mentioned the presence of signs and no records of either defendant suggests that there were any signs during the periods she attended the lifesaving club. She was not challenged that she may have been mistaken. A letter written to the district manager of the Department of Transport by the local member of Parliament dated 9 November 1994 stated that “a recent inspection of the Gold Coast Highway Bridge at Tallebudgera Creek has shown that there are no signs warning people of the dangers of diving from the bridge into the creek,” (exhibit 30).
Mrs Browning recalled only one incident involving an injury caused by diving or jumping from the bridge and that she described as a would-be suicide jumping from the bridge into the water in the 1990s in the early evening.
Dr W E Davies, a consultant physician with the Spinal Injury Unit at the Princess Alexandra Hospital who had treated the plaintiff thought that the unit had had three patients who had sustained spinal injury after diving into Tallebudgera Creek from this bridge. When pressed he could account for only two - the plaintiff and a later injury which apparently had occurred at night and had features which would make it irrelevant for consideration here. Dr Davies was unable to identify the third case or whether it occurred before or after the plaintiff’s injury and said of it:
“Yes, and there is a third one that I cannot find. I mean, everybody says there is but nobody can remember, so it might - that might be a mythology on the spinal unit, too, but all our staff say, “Oh, yeah, there was another one”, and we can’t remember who it was”, (t/s 171 l.30 et seq).
(b)The Plaintiff and Tallebudgera Creek Bridge
The plaintiff had a long connection with Tallebudgera Creek and its surrounds as a holiday destination. He had surfed the ocean beach, swum from the sandy beach on the southern side of the creek and from the rocky northern side on numerous occasions since he was a young lad. He had fished, snorkelled in the channel, and was quite familiar with its topography and of the rocky northern face. He had jumped or dived from the bridge from the age of 13 or 14 years between 80 and 100 times. He calculated that figure by reference to eight to twelve holiday visits to the Tallebudgera Creek area with about six to ten dives or jumps from the bridge on each holiday. He had seen others engaged in that activity before he attempted his first jump and observed them doing so over the intervening years. He saw other people diving from the top of the guardrail and from the deck of the bridge. The attraction of diving or jumping from the top of the guardrail rather than the deck of the bridge was that he could “make a bigger splash if up the top, just depending on how [he] dived or jumped in”, (t/s 67 l.35); “... it added a bit of fun,” (t/s 138 l.18). He understood that the creek was tidal and the depth was dependent upon the state of the tide. He estimated where the deepest point in the channel was because it would be darkest. His evidence demonstrated that he understood the mechanics, in lay terms, of a dive into water from height and of the risks associated with dives into shallow water. He said he knew that a deep dive could result in hitting the bottom, or a dive across a pool might lead to hitting the side with his head if precautions were not taken, (t/s 102 et seq). He knew that the bridge was not there to dive from, (t/s 138 l.18).
(c)The Plaintiff’s Dive on 25 September
On the morning of 25 September 1990 the plaintiff, who had been staying at a friend’s caravan at the Palm Beach Caravan Park, went to the beach with a girlfriend at Tallebudgera Creek at about 9.00am to 9.30am. They left the beach at about 10.45am to 11.00am, parted, and the plaintiff continued by walking along the footpath on the bridge. He intended to walk over the bridge to Burleigh Heads towards the north. He was wearing shorts and shoes and had a towel, shirt and radio with him. On the spur of the moment, as he was crossing the bridge, he decided to dive off the bridge towards the north bank to wash suntan oil and sand from his body. He had not dived or jumped from the bridge that day but had done so a few days earlier.
He put his radio and clothes down on the footpath on the bridge and climbed onto the top of the guardrail using a light pole for balance. He was initially hesitant about which light pole he used. It will be recalled that the channel flows between the two northernmost light poles on the bridge. In evidence in chief the plaintiff said it was the second pole from the northern end of the bridge as shown in exhibit 1, photograph 2. In cross-examination he said he thought the photographs were deceiving and in re-examination said that that particular light pole seemed “a lot further along than what I thought it was where - I can’t quite tell if this first pole is as close to the shore as it looks in the photograph” (t/s 156 l.48). When the plaintiff was shown exhibit 1, photograph 3, he was much more confident that he had dived from near the first light pole on the right in the photograph, that is, nearer to the northern bank of the creek. The plaintiff said the channel was just past the first light pole in photograph 3 (t/s 157 l.42) and indicated to the right. He thought he had the light pole he used for balance was on his left which would support his preference for the more northerly light pole as the point from which he dived. This placed him almost directly over the channel.
The plaintiff recalled that the tide was high and just starting to turn. He looked at the water and was unable to see the bottom. He dived with his hands outstretched and towards his left, that is, towards the rocky north bank (exhibit 1, photograph 3, and photographs 4 and 6 of exhibit 31). When asked by his counsel, Mr P Dutney QC, why he dived like that the plaintiff answered:
“Just a sort of silly phobia I have got about sharks and just being by myself, I thought once I dove in I would be able to get close - you know, I wouldn’t have as far to go to shore” (t/s 26 l.45).
His intention had been, it seems, to dive as close to the north bank as he could, consistent with diving into the channel, climb out, walk over the rocks and up onto the footpath on the bridge to collect his belongings and resume his walk into Burleigh Heads.
The plaintiff said he did not dive straight down into the water but out on an angle. He recalls “a big bang” on his head and thought he might have either hit something on the bottom “whether it was the shore or a rock ...”, (t/s 27 l.40). Subsequently the plaintiff was found to have scabs towards the back of his head consistent with striking a hard or sharp object other than sand (which would tend to cause bruising) and which would have occurred if he had dropped his head whilst diving. The precise mechanism of his dive need not be established to resolve the issues of liability in this case. According to Dr Davies it is unlikely that the plaintiff’s injury occurred other than by hitting the bottom or some object in the water which resulted in a compressive force to the top of his head. Dr Davies said that there was much less chance of spinal injury by jumping feet first than by diving head first into the water. Although he agreed that logically the higher the start of the dive the harder the impact, he seemed to suggest that the difference in height between the top of the guardrail and the deck of the bridge on the speed and force of impact would be negligible (t/s 174 l.44 et seq.). This is borne out by the diving studies discussed in Dr Grigg’s report (exhibit 31) where a diver’s technique was isolated as the overriding factor in determining whether a diver would impact with the pool bottom with sufficient velocity to cause cervical spine injury (p.11 of the report).
The plaintiff floated to the top of the water face down, opened his eyes and was unable to move his limbs. Just as he was taking in water an unidentified bystander entered the water and turned him over. The plaintiff said he gave instructions to remain cradled in the water pending the arrival of an ambulance because he knew he had “done some sort of damage to myself”, (t/s 27 1.32).
Dr D Grant, a psychiatrist, saw the plaintiff on 2 September 1993. He gave evidence from the notes which he took on that occasion which were consistent with what appeared in his report and was unchallenged.
“He told me that the accident occurred on 24 September 1990 and that he was in the habit of jumping or diving off the bridge at Tallebudgera into the creek, that he had done that on many occasions in the past, that on this occasion he dived into the creek, but didn’t dive straight into the deep channel, went to one side and hit a rock underwater. (t/s 311 l.40 et seq).
The plaintiff must have made some error of judgment in carrying the planned dive into execution. One factor it has been submitted would have impacted upon the plaintiff’s dive. Either the night before he was injured or the night previous to that he admitted that he had been drinking heavily and smoking marijuana. When he was admitted to hospital he was found to have alcohol in his blood. It seems likely that this excess occurred the night before because of the blood alcohol on admission to hospital and the plaintiff ’s recollection that he was not hung over that morning because he had had a good sleep and a big breakfast. He had consumed a dozen or so drinks of bourbon and coke followed by a shared half-size bottle of spirits and had had 4-6 cones of marijuana through the evening. The residual affect of this ingestion, the defendants submitted, would have been likely to have impacted adversely on his judgment in carrying out the dive. See also Blanksby et ál (1997) Aetiology and Occurrence of Diving Injuries - A Review of Diving Safety, in Sports Medium 1997 April 23(4) pp. 228-246 quoted by Dr Grigg at p.11 of his report. The plaintiff suggested, as best his answer can be understood, that he was not “blotto” after his “big” night, (t/s 49, l.45). The plaintiff’s mother said she thought that he was not the sort of person who would be likely to put himself at risk if he perceived a danger but this maternal insight must be set alongside his excessive consumption of alcohol, tobacco, marijuana, amphetamines and LSD from an early age and his recorded driving whilst under the influence of alcohol.
(d) Knowledge of the Defendants about the Recreational Use of the Bridge
The property in the bridge was vested in the Commissioner of Main Roads and/or the Director General of the Department of Transport at the relevant time. The Tallebudgera Creek at that point was the responsibility of the Department of Transport (exhibit 48). There was no evidence of any injury to any person prior to the plaintiff’s injury resulting from jumping or diving from the bridge apart from Dr Davies’ evidence about “the third person” which I have already mentioned. Officers of Queensland Transport engaged in computer and manual searches through its records and found no reference to any complaints or concerns about the practice of diving or jumping from the bridge into the creek other than the letter from Mrs Ganim MLA (exhibit 30) in 1994, to which I have referred. It must be inferred, however, that the Commissioner through the officers of the Department, for example Mr Cameron, knew or ought to have known of the recreational use that was made of the bridge.
The Council similarly had no knowledge of any incident involving a person being injured as a result of jumping or diving from the bridge prior to the plaintiff’s injury but it may also be inferred that through its employees it knew of that activity.
Liability
The case for the plaintiff against both defendants is based on two omissions and one positive act, namely, a failure to erect signs warning of the danger of or prohibiting diving from the top horizontal rail of the bridge to the creek; and/or having a guardrail of insufficient height to deter or prevent persons from climbing onto the horizontal rail; and/or having the top rail of such a design as to provide a natural platform from which to dive. In order to succeed the plaintiff must prove, apart from an obligation to take care, and breach of that obligation that more probably than not if a sign had been erected warning about or prohibiting diving, or had a higher guardrail and/or a different top rail been erected, he would not have suffered the loss which he has, Hallmark-Mitex Pty Ltd v. Rybarczyk C.A. 11009 of 1997 per Chesterman J at p.10 of his Honour’s reasons.
The defendants maintain that whether signs had been erected or a higher guardrail installed the plaintiff would have been undeterred since he had determined to enter the water from the bridge. It is convenient to deal with the factual bases for those submissions now and to come to some conclusion before embarking on the question of whether the defendants or either of them owed the plaintiff a duty of care and if so whether they breached their obligation by omitting to erect signs, heighten the guardrail or having in place the top of the guardrail as a platform. Dr Ian Lynagh, a psychologist, and Dr Grant took an extensive pre-injury history from the plaintiff concerning behavioural and social matters. The plaintiff frankly accepted his past when giving his evidence and did not challenge the doctors’ recital of the history given to them. He gave the appearance, when giving his evidence, of being an easygoing and fairly open young man. His credit as far as his evidence was concerned was not greatly challenged.
The plaintiff’s parents separated when he was about ten or eleven and this had a very adverse effect on him leading to serious behavioural problems. He told Dr Lynagh that this resulted in him being “shuttled back and forth between parents” (exhibit 7, p.2) but his mother was his main carer. She had remarried and there was no evidence of undue conflict with his stepfather. The plaintiff is the eldest of one sister and two brothers who, so far as the limited evidence went, did not seem to be as affected by the parental separation. He said he was “in and out of home” from 16 years and that he “was kicked out” of home. He was in that state when he sustained his injury, and had spent the intervening years living with a girlfriend and travelling north to Port Douglas with friends. He regularly truanted from the several schools which he attended leaving part-way through Grade 9 for good. His parents sought the assistance of the Juvenile Aid Bureau and the Child Guidance Clinic to deal with his truancy and behavioural problems. The plaintiff said he did not like school and rebelled against all authority figures. He told Dr Lynagh that “I was a problem child ... I could never take discipline off anyone”, ibid.
He started smoking cigarettes at the age of twelve and was a consistent user of alcohol from about the age of fourteen. He told Dr Grant that he had memory blackouts as a consequence of heavy drinking. He was a heavy user of marijuana, used methyl amphetamines intravenously and “a lot” of LSD but stopped when he “had a bad paranoia trip”, (t/s 78 l.12).
The plaintiff had a quite extensive criminal history as a juvenile. He was presented as an uncontrollable child on an application for care and control when he was twelve. At thirteen and fourteen he was dealt with in the Children’s Court for stealing, unlawful use of a motor vehicle and receiving stolen property. When he was fifteen he was dealt with for stealing and breaking and entering. He has an extensive criminal history as an adult. In July 1988 he was convicted at the Mossman Magistrates Court of stealing and false pretences with respect to the theft of a friend’s video recorder and pawning of it in Rockhampton. He was placed on probation for six months and ordered to pay restitution. He moved from Rockhampton to Port Douglas and whilst there committed four break and enter offences even though he was then in employment. He failed to appear in the Mount Isa Magistrates Court in respect of those charges and a warrant was issued for his arrest. On 1 March 1989 he was dealt with in the Beenleigh Magistrates Court for breach of his probation and for failing to appear in the Mount Isa Magistrates Court. On 9 June 1989 he appeared in the Brisbane District Court in respect of the four charges of breaking and entering which he had committed in Port Douglas. He was placed on probation for a further 18 months, ordered to perform 100 hours unpaid community service and to pay restitution. He was dealt with in the Beenleigh Magistrates Court shortly afterwards for breach of the probation imposed in the Mossman Magistrates Court a year earlier.
The plaintiff was summonsed to appear in the Brisbane District Court in September 1989 for failure to pay the earlier restitution ordered by that court but failed to appear and a bench warrant was issued for his arrest. On 27 October 1989 the matter of his failure to report for community service was to be dealt with by the Beenleigh Magistrates Court but he failed to appear and another warrant was issued for his arrest. In November he was dealt with for two breaches of the Bail Act relating to two charges of driving under the influence of liquor and being an unlicensed driver. In March 1990 he was dealt with in the Beenleigh Magistrates Court for breach of his community service order which was revoked. The plaintiff was again summonsed to appear before the Brisbane District Court on 16 May 1990 for failure to pay restitution and a warrant was issued for his arrest for failure to appear.
It is a fair summary, as Mr Williams QC for the first defendant has submitted, that the plaintiff had been on probation for most of his adult life. His performance of the community based orders was very poor. He committed further offences whilst on probation. He had not paid any of the restitution sums or fines which had been imposed upon him and apparently had made no attempt to pay them and did not intend to do so. He regularly failed to appear in court when ordered to do so.
The plaintiff was cross-examined about an incident in July 1989 involving the attempted forceful recovery of a sum of money provided to another person to purchase drugs. The plaintiff accompanied a friend who had provided the money and who was armed with pick-axe handle to be a helper if required. In the ensuing confrontation the friend was shot dead.
The plaintiff received verbal warnings about his failure to attend to his community service and failure to report to his probation officer. Mr Williams asked him:
“You had a long history of ignoring warnings, didn’t you? --Sounds like it.
You just did what suited you, didn’t you? --Yes, it sounds like it. Well, that rebellious streak you had from when you were a 12 year old child had continued into your early adulthood. If you wanted to do something, you did it regardless of the consequences. Isn’t that right? --Yeah, I suppose.” (t/s 89 l.29)
The plaintiff’s employment history, which will be discussed in detail later, suggests a person who had difficulty in responding to discipline. He was dismissed from his first job after some months. He took factory jobs one of which lasted one day, he told Dr Lynagh, because he did not like it. He did not enjoy working indoors. He undertook itinerant labouring jobs but told Dr Lynagh and confirmed in evidence that he liked big breaks especially in the summer because he could not handle the heat.
Dr Lynagh undertook psychometric testing of the plaintiff over some four visits. He concluded “Behaviourally, he lacks self discipline and is inclined to be expedient, to disregard rules and act without restraint,” (exhibit 7, p. 4).
(a)Would a Sign Have Made a Difference?
As has been mentioned there is little basis for concluding that there were signs warning of the dangers of diving or prohibiting diving from the bridge prior to the plaintiff sustaining his injury. Mrs Browning recalled signs but could not say when, where located or their content. Nothing was revealed from the first or second defendants’ disclosure of documents. Since Mrs Browning said that the bridge was “out of bounds” for the members of her lifesaving club it may have been that the signs she recalls, if her recollection is accurate, were associated with the club. Curiously, the written submissions of the first defendant state “it is conceded that such signs were erected”, p.29. The plaintiff said that he saw none.
The most relevant study about warnings in Dr Grigg’s report appears at para 6.2:
“6.2Warning Signs
Wogalter et al (Reference 2) examined the factors governing the effectiveness of warning signs, through a series of controlled laboratory experiments, rating experiments and field studies. They found:
i)For greatest perceived effectiveness a warning should consist of:
(a)Signal Word (e.g. DANGER)
(b)Hazard statement (e.g. High Voltage Wires)
(c)Consequences (e.g. Can Kill)
(d) Instruction (e.g. Stay away)
ii)A low cost of compliance adds to a warning’s effectiveness. That is, if compliance with the warning is not too difficult or requires little effort, people are more likely to comply.
iii)Salience (or flamboyance) adds to a warning’s effectiveness.
iv)“...the greater the hazard, the greater the perceived effectiveness of the sign. Perhaps people are more motivated to comply with warnings that concern very serious hazards.”
v)“Even if a warning is salient, informative, and concise, it will not necessarily be effective. People may see a warning, read it, and yet not comply with it.”
No warning signs used in the experiments discussed in this paper were 100% effective.”
The only evidence advanced on behalf of the plaintiff as to the content of a warning so as to operate upon his mind and dissuade him from diving was from the following question from Mr Dutney:
“If there had been a sign, for example, saying “Warning - you could be killed or seriously injured diving off this bridge”, or something of that order would that have had any impact on you? --Yes ... well I obviously wouldn’t have dived off there or jumped off there”, (t/s 29. l.1).
The plaintiff said in cross-examination by Mr Morris QC who appeared for the Council that he would have heeded a warning which said “no diving” because “there was obviously a danger”, t/s 140 l.50. Whilst it was not submitted that the plaintiff was deliberately dishonest in his answers, they were given with all the knowledge of hindsight and the serious nature of his disability. The weight to be given to those answers must be assessed against the kind of person the plaintiff was at the time he dived. There was no evidence about where a sign or signs ought to have been placed to have the desired effect. Dr Grigg, an engineer, whose report has been referred to and which was tendered on behalf of the plaintiff was not called. He undertook an inspection of the Tallebudgera bridge and other bridges, took the measurements to which reference has been made, and photographs, discussed other barriers and studies relating to the dynamics of diving and warnings.
There was no direct evidence given about the signs which have since been placed by Queensland Transport on the bridge prohibiting diving, but one photograph (no.10) in Dr Grigg’s report (exhibit 31) shows a sign fixed to a light pole facing inwards at about double the height of the top of the guardrail. The photographs were taken in May 1998. It depicts a red circle with a red slash across it and a stylized depiction of a figure bending forward in a recognisable static racing diving position. Underneath in black block letters is written “NO DIVING”. It appears from a number of other photographs (exhibit 31 nos. 1, 4, 5, 6, 8 & 9 and exhibit 44) that the sign has been placed on most of the other light poles.
The defendants submit that the plaintiff’s personal history of defiance of authority and lawlessness together with the impetuous nature of his decision to dive off the bridge when he was walking across it militate against any conclusion that more probably than not he would not have dived from the top rail of the bridge.
As Demack J (dissenting) observed in Hornberg v Horrobin, CA No. 10477 of 1997 unreported decision of 18 September 1998, at p.12 of his reasons, the difficulty in a failure to warn case is that a significant event which “should” have happened in the past did not happen.
Had a sign been erected, of whatever content, on the bridge but only after the plaintiff had spent years as a youth jumping and diving from the bridge it is highly unlikely that he would have taken any notice at all. He had jumped or dived many, many times in complete safety and was familiar with the terrain and would have scorned a warning or prohibition. Had signs been erected many years past but generally disregarded then again it is unlikely that the plaintiff with his background would have taken any notice.
It was not the plaintiff’s case that there was any obligation on the part of either defendant to patrol the bridge to ensure that no diving occurred. Although the plaintiff said that he did not think that it was a dangerous activity at the time, nonetheless he said that he would not have engaged in it had his mother been watching and conceded that it was, on reflection, a silly thing to do (t/s 69). I think it more probable than not that had a sign, even with as dramatic a content as was put to the plaintiff by Mr Dutney, been erected on every lamp pole the bridge it would not have deterred the plaintiff from diving into the water from the railing on the bridge on 25 September.
(b)Would a Higher Guardrail Have Made a Difference?
The plaintiff said that the guardrail was roughly around his chest in height or a bit below. In order to climb it he said “I am pretty sure I just stand on the bridge itself and just grab the top and just jimmy myself up, you know, just swing up on it”, (t/s 29 l.24). He was asked in evidence in chief (to resolve a transcript problem from the previous day at t/s 291.34, pp. 63-4)
“Now, I asked you a question yesterday about what difference it might have made on the particular day you suffered the injury if the fence had been higher? --Yes.
Say, for example, shoulder height, or head height, or some higher height than the height you describe? --Uh uh.
Can you tell me again what difference, if any, that would have made? --Well, if it was, say, head height, it would have made me - would have made it a bit harder to get over or to get up on top.
What impact would that have had on your decision to dive on this occasion? --It might have deterred me a bit too, you know, to get up.
Why is that? --Well, just being a lot higher it would have possibly stopped me from wanting to stand up actually on the railing system, sort of thing.
So what would you have done, not dived or dived off - climbed over and dived or just kept walking? What impact do you think it might have had? --I mightn’t have made the effort to go for a jump or a dive off at all.
... Is there some reason why you say you might not have made the effort? --I can’t think at the moment, sorry”, (t/s 68).
In cross-examination by Mr Morris the plaintiff conceded that although it was probably a bit of a struggle to climb to the top or over the guardrail when he was a 13 or 14 year old it did not deter him from jumping or diving off the rail. The following exchange then took place:
“And exactly the same situation applied when you were 21, that if there had been a fence that was actual shoulder height or your chin height or your head height, that wouldn’t have deterred you from doing what you wanted to do? --I don’t know. When you are a kid it is all part of the fun, I think.
But you had no reason to be doing this when you were 21, it was just part of the fun as well, wasn’t it? --On other occasions, you know, it might, or something - you know, was all fun and that, but when I decided to dive at the time I did and done me injury, you know, I wasn’t, I was just doing what I said I was doing [cleaning the sand and suntan lotion from his body].
... I suggest to you that when you think about it, when you think of the bother that you went to dive into the water, when you think of the effort that you took and the circumstances that you were in at the time, if you had had to climb a fence that was somewhat higher than the fence that was there, it wouldn’t have made any difference at all? --I suppose it might not have” t/s 139.
In fairness to the plaintiff I thought that he seemed to be tiring by this time. He had given evidence during the previous day and answered these questions on the afternoon of the second day having been under cross-examination in the morning and may have been agreeing with Mr Morris out of fatigue. I do not wish to imply by this observation that Mr Morris cross-examined the plaintiff inappropriately. That was not the case at all.
The plaintiff had determined upon diving into the water to cleanse himself. He might not have done so had it involved too much inconvenience and difficulty for him but he liked doing it and said that it was fun. It was to him a more attractive means of achieving his object than walking around the bridge and slipping into the water from the rocks.
Had a 1.8 metre high (head high) guardrail been erected at the time when the bridge was first built it would have cost approximately $42,000. To do so at the present time would cost approximately $100,000.
There was evidence from the engineers about particular bridges where higher than the standard railings had been installed. None of them was a pedestrian-access bridge over water. The Gateway Bridge, not having pedestrian access, had originally been erected without any guardrails above a low concrete barrier. Because of a number of suicides from the bridge, railings were added of a height that was thought to deter such activity (exhibit 31, photographs 11-13). Even so, determined would-be suicides have climbed onto the roof of parked cars to gain access to the top of the railing. The Gateway Bridge has an extension mesh guard extending out from the ends of the guardrail to prevent access along the outer edge (exhibit 31, photograph 12). Higher railings have also been erected on some pedestrian walkways over railway bridges and freeway over-pass bridges, presumably to prevent objects being thrown below. There was no evidence of any more restrictive guardrail on any bridge in Queensland over a watercourse than in conformity with the Australian Roads Bridge Design Code.
Mr K Ross, an engineer with Kinhill Pty Ltd with an extensive experience in designing bridges, described the Tallebudgera Creek bridge as different from “all other bridges in the State” in that it was near a popular recreational area situated at diving height above an inviting swimming location. He was unable to say that in his experience any other bridge in the world which was used by vehicular traffic and pedestrians to cross water like this bridge had any higher barrier than a standard barrier to deter recreational diving or jumping.
Mr Cameron had investigated bridges extensively in Australia and overseas but apart from bridges with an attraction for suicides and risks of objects being thrown onto railway lines and highways he was unaware of any practice of designing bridges over watercourses with high fences and barricades at the ends to prevent recreational diving, jumping or fishing.
The engineers did not avert to any engineering difficulty in erecting a higher guardrail but they conceded that nothing would prevent a determined person from getting over a railing which was headhigh. It was accepted that children as young as nine were able easily to scale the existing guard rail of 1.140 metres which would be similar to a headhigh railing for a fully grown adult. A guardrail which would be effective to prevent a person from climbing over it would be constructed of chain wire with strands of barbed wire or razor wire at the top similar to a prison fence with extruding barriers at each end. Other possibilities included welding spikes on top of the existing rails and inclined extensions from the top railing. Risks of falling backwards onto the bridge or associated with an uncontrolled dive into the water were not accepted as significant if a higher guardrail were erected.
The evidence revealed that Queensland Transport’s responsibilities extended to 2,559 bridges over declared roads in Queensland with a total length of 140 kilometres. Of those bridges 2,175 were on declared roads over watercourses with a total length of 126 kilometres. As a matter of practical inference there must be other bridges over waterways of a divable height apart from the Tallebudgera Creek bridge which would be attractive. In evidence the Southport Bridge and the Hornibrook Highway Bridge were mentioned. To erect barriers of sufficient deterrence would be costly. The amenity to other users of the bridge - pedestrian and those in vehicles - would be affected. The pleasure associated with walking across the bridge would be substantially reduced if any of the deterring guardrails mentioned were implemented. Visibility from cars would be significantly reduced.
I conclude that a guardrail could have been installed which more probably than not would have deterred the plaintiff from diving in on 25 September. Of course the mere fact that a precaution probably would have saved an injured person from injury does not constitute its omission a negligent act, Commissioner for Railways v Hanna (1954) 28 ALJ 656 at 658 and this will be further discussed below.
(c)The Top of the Guardrail as a Natural Platform
The particular of negligence challenging the design defect of the top railing can be put to one side. It measured 30mm x 50mm. As can be seen in photograph 6 in Dr Grigg’s report (exhibit 31) and photograph 5 of exhibit 1, it could not be described as a natural platform. Indeed the plaintiff said that he needed the support of a lamp pole for balance. The description of the top of the rail as “a natural platform from which to dive ...” appears to owe more to Nagle v. Rottnest Island Authority (1992-1993) 177 CLR 423 than to a practical appreciation of the railing.
(d)The Statutory Functions and Powers of the First Defendant
There have been numerous statutory changes relating to transport infrastructure and roads in Queensland since 1990 when the plaintiff was injured. It is unnecessary to trace those changes. Queensland Transport admits that it was and is responsible for the erection and maintenance of all signage relating to the bridge and that the bridge was and is located on a declared road and thereby under the jurisdiction of that department, exhibit 48.
The governing legislation at the time of the plaintiff’s injury was the Main Roads Act 1920, s.17 of which provided:
“The absolute property and the land over which any and every declared road is proclaimed shall be vested in the Crown.”
Property in fences, posts and erections placed upon a declared road belonged to the Commissioner of Main Roads. By s.9B of the Main Roads Act the Commissioner was empowered inter alia to compile, maintain and amend a Manual of Uniform Traffic Control Devices and to arrange for the installation of official traffic signs on any road, to publish information concerning the safe use of roads by pedestrians and generally to take steps to regulate traffic.
The Manual of Uniform Traffic Control Devices had the same meaning under the Main Roads Act as under the Traffic Act 1949. “Official traffic sign” derived its meaning from the Traffic Act 1949:
“... any sign, signal, marking, light or device, not inconsistent with this Act, placed or erected for the purpose of regulating, warning or guiding traffic the design of which and methods, standards and procedures in relation to which -
(a)are contained in the Manual of Uniform Traffic Control Devices;
or
(b)are approved by the chief executive.”
A road is defined in the Traffic Act to include a bridge, a footway “open to or for use by the public or to which the public have access ...”. Traffic is defined to include “the user by any person of any road ... or the presence thereon of any person.”
It is common ground that at the time when the plaintiff sustained his injuries the Manual contained no sign which would prohibit diving or warn of the dangers or risks of diving. The Commissioner had power to amend the Manual. Without elaborate argument, Mr Williams submitted that it is questionable whether the Commissioner had power to prohibit diving on a declared road. Although not at the forefront of the functions of the Commissioner, nonetheless, the wide definitions of road and traffic suggest that the Commissioner had power to warn of the dangers of or to prohibit diving. Without more I am not prepared to hold that the Commissioner did not have such power and am supported in that conclusion by the erection of “NO DIVING” signs at least from 1997 by the Chief Executive of Queensland Transport who seems to be the successor of the Commissioner. I do, however, accept the submission that the power to erect such a sign does not necessarily infer that Queensland Transport as a highway authority was to be likened to the statutory bodies in Nagle and Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208 whose functions were to manage and maintain recreational places and facilities.
(e)Statutory Powers of the Second Defendant
In 1990 when the plaintiff sustained his injuries s.12B of the Traffic Act 1949 provided:
“(1)Commissioner of Main Roads may install official traffic signs. The Commissioner of Main Roads may install on a road any official traffic sign and may remove from a road any official traffic sign.
(2)Local Authority may install official traffic signs. A local authority may install on a road in its Area which is not a declared road or on an off-street regulated parking area in its Area any official traffic sign and may remove from a road in its Area which is not a declared road or from an off-street regulated parking area in its Area any official traffic sign.”
The Local Government Act 1936 which was in force at the time when the plaintiff sustained his injuries provided in s.49E
“Official traffic signs and regulated parking.
(1)The Local Authority may, subject to “The Traffic Act 1949 to 1965,” install and remove official traffic signs and prohibit, regulate and control parking on any road or off-street regulated parking area in the Area.
(2)The Local Authority shall, subject to this Act, take all action necessary to give effect to the provisions of “The Traffic Act 1949 to 1965".”
Section 35 of the Main Roads Act 1920 provided:
“Saving powers of Local Authority. Save in so far as is inconsistent with this Act, every Local Authority shall have the same powers over the declared roads within its Area as it has over other roads within its Area.
A Local Authority shall not carry out any permanent works on any declared road or any works which are likely to affect the drainage, alignment or pavement of any declared road, unless it shall obtained the prior approval of the Commissioner to the execution of such works.”
Regulation 126 of the Main Road Regulations 1987 provided:
“Signs for the information of traffic. The Commissioner or a Local Authority at the request of the Commissioner may construct, remove, make, mark, place, erect, fix or paint in, into or on declared road signs which are for the information of traffic.”
At the time the plaintiff was injured “official traffic signs” as defined in the Traffic Act by incorporation in the Local Government Act, s.49E applied to a local authority.
I accept Mr Morris’s submission that the Council was limited to erecting official traffic signs on roads other than declared roads and on declared roads but only at the request of the Commissioner. The Council therefore had no lawful authority to erect warning or prohibitory signs of whatever content on the bridge or the road approaches to the bridge.
It is not the plaintiff’s case against the Council that it failed to request Queensland Transport to erect appropriate signs or failed to seek permission to do so itself or failed to request Queensland Transport to provide a higher guardrail on the bridge. The Council’s liability to the plaintiff falls to be considered by reference to any obligation it might have had to erect warning signs on land which it controlled adjacent to the bridge.
(f)Did the Defendants owe the Plaintiff a Duty of Care?
That there was a foreseeable risk of injury of the kind that occurred to the plaintiff from diving from the bridge cannot seriously be disputed. Those controlling the life saving club thought so, the plaintiff would not have done so in front of his mother and common sense would suggest so. The fact that there was no recalled case of injury of any kind over 50 to 60 years does not thereby mark out the risk as far fetched or fanciful, Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at p.47. It simply had never been realised. The foreseeability of injury does not answer the question whether the defendants owed a duty of care to the plaintiff by virtue of their control over the bridge in the case of the first defendant and control over recreational areas near its bridge, in the case of the second defendant. That will be resolved by the application of the ordinary principles of negligence, Hackshaw v Shaw (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. It is convenient to dispose of the liability of the second defendant first.
(g)Liability of the Second Defendant
The plaintiff places reliance upon Nagle v. Rottnest Island Authority in as much as the Council’s duty of care is said to flow from its encouragement to people to come to the area. There are features about Nagle which are quite different from the circumstances here which can be readily appreciated from this passage in the judgment of the majority (Mason CJ, Deane, Dawson and Gaudron JJ) at p.430:
“As stated earlier, the Board [the successor to the Authority] was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged.”
In Nagle the diving activity commenced within the Reserve and ended beyond the boundaries of the Reserve. The majority held that there was no reason why the Board could not erect signs on the main platform warning of the danger which existed immediately beyond the boundaries of the Reserve, that being a danger to which swimmers, encouraged by the Board, would be exposed, at p. 432.
Here the Council occupied and controlled land near the bridge. By the provision of services such as car parking and toilet and changing amenities it arguably encouraged members of the public to bathe from the recognisably safe sandy beach on the southern bank of the creek. But it cannot be said that it thereby encouraged members of the public to leave the beach, walk along a four lane highway bridge and dive from it into the creek, a place over which it had no control.
Even if it be accepted, which I do not, that the Council had some such obligation in law to the plaintiff of the kind alleged, at a practical level the evidence did not reveal that the plaintiff would have seen a sign had there been one. Randel v Brisbane City Council (No.2) [1990] 2 Qd R 440 at p.454. The evidence did not trace the plaintiff’s movements prior to going on the bridge except that he said he was staying at the “Palm Beach Caravan Park” (its location was not established) and after leaving the beach “went up to the main road”, (t/s 24, 1l.24,50). If it be assumed, as seems reasonable, that the visit to the beach was somewhere along the sandy southern bank of the creek seen in photograph 1 of exhibit 1, the plaintiff and his companion may well have walked along the edge of the water until they reached the bridge and not seen any sign erected on any land occupied or controlled by the Council. As mentioned above, even if there were a sign warning of the danger of diving from the bridge (there is no suggestion that the Council had power to prohibit that activity), which the plaintiff might have seen, I have concluded that he would have disregarded it, or, by the time he reached the point on the bridge where he decided to dive, he would have ceased to recall it.
The plaintiff does not succeed against the second defendant.
(h)Duty of Care of First Defendant
Mr Williams submitted that the Commissioner was not an occupier of the bridge and that the Commissioner’s role was limited to maintenance of the bridge and the regulation of traffic on it. The property in the bridge and all of its constituent parts was vested in the Commissioner by s.17 of the Main Roads Act. The absolute property in the land over which any declared road was proclaimed was vested in the Crown, ibid. Clearly the Commissioner exercised control over the bridge and pedestrians had the right to pass and repass over it subject to the exercise of any statutory rights of closure or exclusion. Brennan CJ observed in Romeo at p. 212:
“Neither possession or occupation of land is by itself a foundation for a duty of care owed to another who enters on land. The existence and extent of the duty of care depends upon the title of the other to be there, the object with which the other comes upon the land and the interest of the defendant in the other’s presence.”
In Hackshaw v. Shaw (1984) 155 CLR 614 Deane J stated at 663:
“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of whom the visitor is a member.”
The reasonable foreseeability of a real risk of injury may be sufficient to create a special relationship between the defendant in occupation or control of the place where the injury was sustained and a lawful entrant. See the concerns expressed about the failure of this area of the law to provide predictable outcomes detailed by Kirby J in Romeo at pp.225 to 226. The plaintiff as a member of the public was entitled to exercise his right to walk along the footpath or, it might be inferred, to lean upon the guardrail and look at the view. Without more, it might be assumed, the Commissioner’s obligation was confined to keeping the footpath free of hazards and the guardrail in repair. The plaintiff, literally, stepped outside this relationship when he climbed the fence and dived from it. The Commissioner gave the plaintiff no encouragement to engage in this activity and had this dive been an isolated or infrequent occurrence, in my view, no relationship giving rise to an obligation to take care for the plaintiff’s well-being would have come into being. This was not a place provided for recreation and takes the matter factually outside the situation in, for example, Nagle, Saroukas v Sutherland Shire Council (1992) Aust Torts Reports 81-149, Northern Territory v Shoesmith (1996) 132 FLR 138 and Romeo. However, the additional factor which, in my view, supplies the requisite degree of proximity and thereby gives rise to a duty of care was the longstanding practice, known to the defendant, over many years, for children, teenagers and young adults in significant numbers to use the bridge as a facility for entering the waters of Tallebudgera Creek. Notwithstanding that hundreds of safe dives had occurred over many years the potential for serious injury of the kind which occurred to the plaintiff was reasonably foreseeable. If the test enunciated by Dixon J in Aiken v Kingborough Corporation (1939) 62 CLR 179 at 210 in respect of the liability of statutory authorities to entrants and favoured by Brennan CJ in Romeo at p.215 were to be applied then a different result would, I think in this case, ensue. But the other members of the court made it plain that the approach of the majority in Nagle is the modern exposition of the law in this area.
The question then is what is the measure of care which the Commissioner ought to have accorded the plaintiff?
What Ought to Have Been the First Defendant’s Response?
The plaintiff was quite familiar with the topography of the channel, the sandy bank, the rocky northern bank and the fluctuations of the tide. He had dived into the channel from the bridge in previous days and was thus very recently familiar with it. He was almost 21 years of age and although his criminal, employment and educational history must suggest a degree of immaturity nonetheless it must be supposed that he brought to this activity the “experience, understanding of causes and effects,” McHale v. Watson 115 CLR 199 per Kitto J at p.213 of a physically and mentally competent 21 year old. Nothing was suggested that would cause him to be judged by any lower or different standard.
Perhaps in light of strong criticism of the perceived extension of obligations on providers of public recreational facilities, for example, the members of the New South Wales Court of Appeal in Inverell Municipal Council v Pennington (1993) Aust Torts Reports 81 - 234, and the references in Kirby J’s judgment in Romeo at p.226, in Romeo some members of the Court were at pains to emphasise that the duty is not of an insurer but to act reasonably, per Toohey and Gummow JJ at p. 220, per Kirby J at p. 234 and per Hayne J at p.240.
Toohey and Gummow JJ expressed the content of the duty in Romeo at p.220 as follows:
“Whether there was a breach of the duty of care owed by the respondent to those who came on to the Reserve depended on “the action that a reasonable person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which existed” (Nagle (1993) 177 CLR 423 at 431) An assessment of that action must be on the footing that the respondent had to take into account “the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety”. (Nagle at 431) But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming on to the Reserve would not suffer injury by ignoring an obvious danger.”
Kirby J noted at p. 235:
“Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be “balanced out” before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that would put a break on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. ... Precautions need only be taken when that course is required by the standard of reasonableness (Phillis v Daly (1988) 15 NSWLR 65 at 73, per Mahoney JA). Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier’s assessment that the risks of harm were negligible.”
And at p.237 his Honour said:
“In judging both the need for, and possible effect of, a sign or other precaution, a court is entitled to take into account the plaintiff’s own knowledge of the site and understanding of the risks involved as well as its own commonsense.”
Hayne J noted at p.240:
“What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration.”
I am persuaded that the extent of the first defendant’s obligation to a person in the position of the plaintiff would be discharged by the erection on the bridge of signs prohibiting diving as presently appears on the bridge and described at p.17 perhaps with the addition of the word “DANGER”. Such a sign would remind those who had been diving from the bridge without incident in the past and/or who had seen others doing it, or those contemplating doing so for the first time, that it was an activity that ought not be engaged in.
Erecting a sign would not deter the more disobedient or adventurous of children and teenagers and young people generally. It would probably only be effective if patrols were maintained on the bridge at least during the summer months. There was no pleading calling for such a requirement and no evidence about it but it might be assumed to be unreasonable to require it. It would be expensive and the experience with public swimming pools, for example, Hornberg v Horrobin, would suggest not always effective. See also Randall v. Brisbane City Council (No 2) at p.453.
As I have concluded above, even had there been a sign of the kind described by Mr Dutney to the plaintiff or as presently appears on the light poles on the bridge, the plaintiff would have disregarded it. The plaintiff does not succeed against the first defendant.
I am by no means persuaded that erecting higher barrier railings is a reasonable response to the risk. Factors such as cost, bearing in mind the first defendant’s responsibility for other relevant bridges which may attract swimmers throughout the State, that there had been no known injuries over decades of the activity, and the obviousness of the risk of injury for at least any adult contemplating diving, lead to this conclusion. There are other factors of amenity to bear in mind. Whilst the bridge itself is not a place of scenic beauty nonetheless it spans a particularly charming waterway and to have a high cage-like, climb-proof fence erected would destroy the pleasure and refreshment of pedestrians using the bridge and, presumably, interfere with the view from motor cars passing and re-passing over the bridge. This kind of bridge would be the only reasonably effective barrier. A head high guardrail would not deter the determined and I would include the plaintiff among that class on the 25 September 1990.
Volenti Non Fit Injuria
The first defendant has pleaded volenti in paragraph 9 of its amended defence. In order to succeed a defendant must establish that the plaintiff had knowledge of all the facts creating the risk, that he understood and appreciated the risk created by the particular facts and voluntarily undertook to run any risk associated with the activity which gave rise to the injury. In light of the conclusion reached on liability for negligence it is unnecessary to this defence, but I would think without reaching any firm conclusion that the facts are insufficient to support the defence.
Contributory Negligence
Issues of contributory negligence are particularly difficult to assess in cases where the basis of liability is an omission to do something and even more so where the omission is a failure to warn. Saroukas is a case in point. I have concluded as a matter of causation, that no warning which it was reasonable for the first defendant to give would have been effective to prevent the plaintiff’s injury. Had I not reached that conclusion there was one matter that might have called for consideration. The plaintiff said he deliberately angled his dive towards the rocks to shorten the period of time that he would be in the water. Further, he undertook the dive when, on my findings, he was, more likely than not, still affected by the ingestion of drugs and alcohol so as to affect his judgment. Had it been necessary to do so, I would have apportioned 35% of the liability to the plaintiff for failing to have regard for his own safety.
Quantum
The plaintiff sustained a fracture of the fifth cervical vertebra with extensive fragmentation when he hit his head after diving from the bridge. A diagnosis of complete tetraplegia below the sixth cervical neurological segment was made. This resulted in paralysis of his hands, trunk and lower limbs. The plaintiff is presently in receipt of a disability support pension from the Commonwealth Department of Social Security. He lives in a house rented from the Housing Commission built for him as for a person who is wheel chair bound. He is provided with a carer for five hours a day for seven days a week by the Department of Families, Youth and Community Care.
The plaintiff was first admitted to the Southport Hospital on 25 September 1990 and then transferred to the Princess Alexandra Hospital’s Spinal Injuries Unit where he remained for about twelve months. His initial treatment was neck traction through scull tongs on a tilting and turning bed. An in-dwelling urethral catheter was inserted which he continues to use to the present. He was sedated initially and has no clear recollection of the first few weeks in hospital. Thereafter he found the traction uncomfortable and the tilting bed distressing. The plaintiff had eight weeks of immobility and was then placed on a program of physiotherapy and occupational therapy. On 11 June 1991 a C4-5 vertebrectomy was performed to excise the damaged vertebra. Post-operatively he was again placed in traction which he said was worse than on the first occasion.
Once the plaintiff was mobilised into a chair he became something of a discipline problem in the Spinal Unit and despite the Unit’s rules being brought to his attention regularly he broke them repeatedly by consuming alcohol, smoking marijuana and by abusing the hospital staff particularly using foul language to them. The alcohol and marijuana, I infer, were brought in for him by his brother, a friend or obtained from other patients on occasions. Dr Davies recalled him as a patient about whom “there was a fair amount of static” (t/s 175 l.8).
The plaintiff’s family visited extensively at the Princess Alexandra Hospital until his discharge on 6 September 1991. He lived with his father and brother after discharge in a house partly modified for a wheelchair. He needed and still needs care with most aspects of daily living. He was and is unable to effect a transfer in/out of his wheelchair and cannot, accordingly, get himself into or out of bed. He needs assistance in dressing and undressing and in his bowel and bladder care. He can partially wash himself but needs assistance with other parts of his body. He can propel himself by hand in his wheelchair on flat, smooth surfaces. He is able to clean his teeth, sign his name and make a simple meal such as a sandwich if the makings are accessible and he uses modified cutlery. The plaintiff has little wrist extension function which could be observed when he drank water from a mug when giving evidence.
The plaintiff experiences pain in his arms and chest and through his legs which he describes as “very annoying”. He used to smoke marijuana to relieve his pain on a daily basis after leaving hospital but tapered off his consumption towards the beginning of this year and uses it now only occasionally.
In 1992 he developed a significant depressive illness and was treated by a psychiatrist with counselling and anti-depressant medication. The symptoms took the form of panic attacks and involved suicidal thoughts and poor sleep patterns. He told Dr C Grey, the consultant psychiatrist at the Princess Alexandra Hospital who treated him, of family conflicts and boredom. The plaintiff has taken his anti-depressant medication intermittently giving it up when he feels better and returning to it when he feels unwell. He was described by Dr Grey as often non-compliant with respect to his medication and from time to time with follow-up visits at outpatients. His depression is well managed with medication and Dr Grey thought that his pattern for the future would be as in the past with periods of abstinence followed by a return to treatment when he felt sufficiently unwell.
The plaintiff had two admissions to the Princess Alexandra Hospital since his discharge in September 1991, on 24 February and 23 June 1992 respectively . The first related to urinary tract and upper respiratory tract infections and required four days’ hospitalisation. The second was for a urinary tract infection and associated problems which required two days’ hospitalisation. Although the plaintiff has been resistant to accepting medical advice that he have the indwelling catheter removed, Dr Davies concedes that the plaintiff has had, apart from the mentioned episodes, very few infections from that source. He does not wish to have the catheter removed because he does not want a urine collection bag or the operative procedure. Dr Davies said that this was a not unusual reaction in male patients and the risk of infection continued with a collection bag.
The plaintiff has a risk of developing pressure sores but has had good care. His major risk appears to be associated with his lungs. He smokes 10-20 cigarettes a day and this, according to Dr Davies, compromises his lung function and increases the risk of frequency and risk of upper respiratory infections becoming lung infections. Dr Davies estimated a loss of expectation of life for the plaintiff of 10-15 years but opted for the higher figure on the plaintiff’s history of infection and his continued cigarette smoking.
The plaintiff was cared for by his father and brother at his father’s house with second daily assistance from the Blue Nurses for about two years. His father had given up work to look after him. The plaintiff had had visits to his father’s house for weekends whilst he was in the Spinal Unit. He moved into his present Housing Commission accommodation after he left his father’s house and which was purpose-built for the plaintiff as a wheelchair occupant. The plaintiff does not like it and complaints that it is not a level site and that he cannot access the back garden either by going from the front or through the back doors. This latter problem is largely due, it seems, to the treads on the sliding doors which prevent his wheelchair exiting. He does not have an electric wheelchair but must propel himself or be pushed. He presently lives in this house with his sister and her boyfriend, their child, and his mother. When his sister left after a year or so his brother and his girlfriend came for a few months then other family members and a friend.
About eighteen months after discharge from the Hospital the plaintiff received funding for a carer whilst still living at his father’s house, for an initial period of three hours per day which has been increased to five hours a day for seven days a week. This care is now provided by Audrey Wilson who comes in for four hours in the morning and his sister’s boyfriend, David Dugler who lives in the house, who does an hour at night. Audrey Wilson assists the plaintiff to get up, bath and dress, do his exercises, his shopping and getting him a meal. The plaintiff’s mother who suffers from a back condition is generally at home and undertakes housekeeping duties but is unable to lift the plaintiff.
Apart from the significant and serious disabilities associated with his injury the plaintiff’s major problem seems to be boredom. He has had little formal education and tested with Dr Lynagh at a low-average general intelligence with basic literary skills. He said he would like a computer to access the Internet because it would take up a lot of his time. His social activities involve being taken by his brother to the local pub, betting on the horses, taking the dog for a walk and going to some rugby games. It seems that his family and pub acquaintances constitute the bulk of his social interaction. He goes shopping with his carer from time to time. The plaintiff on testing demonstrated deficiency in future planning and direction.
In the year after discharge the plaintiff attended the sporting wheelies gymnasium at Newstead with a friend but once the friend stopped going the plaintiff said he could no longer afford the taxi fares by himself. He then did some limited weights exercises at home. He participated in a university program at home last year which he says helped to motivate him back to exercising.
The plaintiff uses taxis to get around to engagements and appointments. He would like a greater choice of activities and the ability to access places he cannot go with his wheelchair. He would like an adapted van which someone could drive for him as he would be unable to drive it even if adapted because of his weak wrists.
The plaintiff would have liked to visit England where he was born and where his more distant relatives live had he not been injured. He also has an interest in taking a holiday to Asian countries.
As to his future accommodation, the plaintiff says that he would like to live on flat land of some acres developed so that he could get around in an electric wheelchair and keep dogs. He would like a wheelchair which enabled him to go “off road”.
The plaintiff wishes to father a child. He has had relationships prior to his injury two of which resulted in pregnancies, one of which was certainly terminated. He is not sure about the other. He does not presently have a special relationship with any woman but has been close to one or two since his injury. Dr D Molloy, a gynaecologist specialising in infertility and reproductive medicine, said that the plaintiff’s condition is such that he is unable to achieve sexual intercourse. Since he has a positive fertility history the normal method for achieving parenthood would be by electro-ejaculation and artificial insemination. If this did not work then resort would need to be had to an IVF program.
The plaintiff claims numerous aids and much equipment to alleviate his condition and its symptoms. Much of it is not contested by the defendants and those items which are will be considered in detail.
The plaintiff’s evidence about his pre-injury employment was most unsatisfactory. He had retained no tax returns. No application to the deputy commissioner was made until after his records had been destroyed after the usual lapse of time. He and/or his advisors had not contacted past employers for any supporting evidence about his employment with them. His mother gave some assistance in evidence as she had, on occasions, obtained work for him and/or driven him to his employment. In his statement of loss and damage the following appears:
“Details of my employment and income during the three years prior to the accident giving rise to this claim are as follows:-
During this period I undertook employment with several employers as a trades assistant and a bricklayer’s assistant. I am unable to recall the exact periods of such employment or my exact income, however I am able to recall some details of my employment. The following details relate to my employment during the period from 1 July 1986 until the date of the accident giving rise to my claim. I also undertook additional employment but am unable to recall the names of my employers, the periods of employment or my income from such employment.” (exhibit 36).
The plaintiff then sets out some ten employers with approximate periods of employment and approximate income.
Some of the particulars of employment given in the plaintiff’s statement of loss and damage are not consistent with histories given to, for example, Doctors Lynagh and Grant, Ms L Stephenson and Mrs H Coles, occupational therapists, as to the duration of employment and the names of employers. The plaintiff did not have the benefit of any documentary material to refresh his memory. As a consequence, the defendants were embarrassed in their efforts to investigate the plaintiff’s particulars in his statement of loss and damage. The plaintiff expressed some surprise that of those past employers nominated only one could be traced who had any record of the plaintiff. The plaintiff’s estimates as to the duration of his employment were quite often inaccurate. In evidence in chief he had estimated that he worked “6, 8, 9 months or so” per year and that the longest period of unemployment was “6 months or so”, t/s 32 l.35 et seq. His explanation was that he did not like working indoors, did not like working in the heat and did not care to work during the hotter months.
An alpha bed is claimed but since the plaintiff is to be provided with an electric bed the basis for this has not been established and is not allowed.
An intercom system initially costing $299 has been claimed, but since the plaintiff is provided with a vital call there appears to be no basis for this item.
The plaintiff claims the cost of a computer and upgrading it each 2 years. The defendants submit that this is merely recreation equipment and ought not to be allowed. The plaintiff found his recreation in outdoor activity prior to his injury. Gibbs and Stephen JJ observed in Sharman v Evans (1977) 138 CLR 563 at p. 578:
“... when damages for the loss of amenities come to be considered regard must be had to such pleasures as the plaintiff is capable of enjoying and which are made possible by the total damages which she receives ...”.
The provision of a computer is of that kind and although an allowance could be made within the plaintiff’s general damages, it seems more appropriate to identify it and make a specific allowance for it.
An amount of $263,676.59 using the 5% tables over 33 years is allowed for future costs of aids and equipment. See schedule attached to these reasons which sets out the details of the items and their cost.
Economic Loss
The plaintiff has based his claim for past economic loss on the Building Tradesman’s (Other than Plumbers) and Builders’ or Labourers’ Construction Award until 31 January 1994 and thereafter on the Building Construction Industry Award pursuant to the Bricklayers’ Labourer classification. To take account of the fact that the plaintiff was unemployed at the time of his injuries and had been unemployed for periods in the past, Mr Dutney proposed that the first 6 month period after the accident should be deducted and the balance of the figure to judgment based on the above award should be discounted by 15% for contingencies and rounding down. This would give a figure of $114,000 for the past.
The very limited evidence advanced on behalf of the plaintiff as to his pre-accident earnings makes the assessment of this head of damage difficult. What is known is that the plaintiff had several jobs as confirmed by his mother and exhibit 55. It is also clear that the plaintiff was a heavy user of drugs, including alcohol. His criminal activities were becoming less the rebelliousness of youth and more serious and I refer to the break and enter offences and his participation in the enterprise to recover drug money. The plaintiff was at risk of a term of imprisonment if convicted of further criminal conduct or for non-payment of his fines. The defendants submit that his ‘working’ life would have been punctuated by periods of imprisonment. This, I accept, was not unlikely. His personality profile reported by Dr Lyngah shows that the plaintiff lacks discipline, is inclined to be expedient and disregard rules and act without restraint. It would not, in my opinion, be unfair to the plaintiff to factor in a period which involved some unemployment due to imprisonment in the period to trial. Further, the plaintiff’s employment history shows that he did not regard working as a way of life with statutory holidays punctuated by occasional sick days off due to illness, but rather something which he would do from time to time and would cease when conditions did not suit him. Doing the best that can be achieved from the sparse evidence, the plaintiff seems to have been in employment between ½ and _ of the period to the date of the accident.
The award rate fixed upon by the plaintiff is appropriate given the nature of the plaintiff’s past employment but in my view it should be reduced by 50% to represent the matters which I have referred which gives an amount of $74,056.45, which I will allow.
The plaintiff claims interest on past economic loss. He has received approximately $70,000 in social security benefits according to the calculations made by the plaintiff which were not disputed brought up to date of judgment. The payment of interest is discretionary but ought not be awarded where the plaintiff has been in receipt of moneys to take the place of wages, Camm v Salter (1992) 2 Qld R 342. I will allow interest on $4,000 at 5% per annum for 421 weeks which is $1,619.23.
The plaintiff has approached his claim for loss of future of earning capacity on the basis of the Builders Labourers Construction Award of $369.50 nett per week. He claims that amount for 32 years to age 60 discounted on the 5% tables which gives a figure of $312,238.58. On his behalf it is submitted that only a minor rounding off to $300,000 ought to occur as his loss has been calculated to the age of 60 only without any allowance for overtime or above award payments.
In the plaintiff’s favour it may be assumed that as he matured he may have taken a more responsible attitude towards work and reduced his criminal activity. As has been mentioned, it was sought to draw analogy with the achievements of the plaintiff’s younger brothers to indicate what he may have managed by way of employment. Their record with respect to work seems to have been more responsible than the plaintiff’s at a similar age. Their illegal activity can more readily be seen as youthful offences. The plaintiff said that depending upon his health he probably would not have continued to work as a builder’s labourer or bricklayer’s assistant past the age of 50. His father had been a bricklayer. At the time of trial he was aged 49 and no longer working as a bricklayer but carrying out maintenance at a major shopping centre. Mr Dutney’s submission that the figure of $312,238.58 should be rounded down only to $300,000 fails to take account of the plaintiff’s past employment history and his personality profile. That history shows that the plaintiff had long periods of unemployment by choice and not economic circumstance. His criminal conduct prior to injury and an offence of theft from a shop some years after his injury suggests that he may have continued in that pattern into the future. I propose to discount the figure of $312,235.58 to $160,000.00.
(j)Past and Future Loss of Superannuation Benefits
Although Ms J Stoneham, an accountant, prepared a report calculating the plaintiff’s loss of past and future superannuation benefits (exhibit 19) the figures were dependent upon full employment at the award rate since the introduction of the levy from 1 July 1992. It is an artificial exercise because the plaintiff would have been in irregular employment and would have received some wages in cash (as he had in the past) which would attract no payment into a superannuation fund and this would be a likely pattern into the future. It is, I think, common knowledge that the amount of the employer levy has, in accordance with the legislation, increased each year since its introduction at 3% of the gross annual wages of an employee. There was no evidence of this since Ms Stoneham’s calculations were not set out in detail. She has assumed that the contributions would be paid into an accumulated fund such as Sunsuper which has achieved an average earnings rate after tax of 9.4% over the past five years. She has added a notional amount to represent these earnings to the contributions lost after tax for the past and for the future.
The defendants have challenged this approach as involving a “doubling up” of payments to the plaintiff. It gives on their argument the past lost benefit and the present value of the future lost benefit together with the assumed lost earnings on the fund to the plaintiff now. The policy of the legislation seems to be to invest in a fund which is added to throughout the employee’s working life which together with any earnings is received on retirement. This matter has been considered at some length by Ambrose J in Hornberg v Horrobin Nos. 836 of 1997 and 8196 of 1996 unreported decision of 24 October 1997 at pp. 93, 95-97, who has declined to provide for earnings in a fund in awarding an amount under this head. This subject has not, it seems, been the subject of consideration in the Court of Appeal. Mr Dutney referred to Hedge (Appellant) v Trenerry CA No. 4911 of 1996 judgment delivered 7 November 1997, but it is clear that the court did not deal with it in detail and the comment at p.11 that “It has become a common practice to allow 6% of the sum assessed for future economic loss as an appropriate sum for the future,” in respect of future superannuation benefits lost gives little indication of the basis on which the court proceeded. Any “doubling up factor can be avoided by awarding a present value of the putative, making appropriate reductions for contingencies such as failure of the funds or changes in legislation.
Doing the best I can with the available figures from exhibit 19, I would allow 50% of the amount calculated by Ms Stoneham for the past which is $3,755.00 (I have not brought her figures up to the date of judgment as it is small).
The plaintiff’s weekly gross salary loss is $459.80 which I have calculated to age 60, a period of 31 years. The earnings at 9.4% after tax over that period have been calculated at $390,597. The contributions less 15% tax are $55,796. Ms Stoneham has calculated the present value at 5% discount after deducting an eligible termination tax at $96,398. I would reduce that figure by half to reflect the plaintiff’s future employment prospects and further reduce it to reflet many contingencies such as the performance of the fund(s), casual cash employment and change in legislation. I would allow $30,000 for the loss of future superannuation benefits.
(k)Future Pharmaceutical Expenses
The evidence revealed that the plaintiff require a number of drugs for his well being namely warfarin, baclofen, dithropin, valium and anafranil. The cost on a weekly basis is $36.97. The evidence also establishes that the plaintiff ceases taking anafranil when he feels better and in the past did not use it for some months at a time. Dr Gray recommended that he should do this under the supervision of a psychiatrist but there was no indication that the plaintiff had done so in the past or would do so in the future. Mr Dutney has proposed that the amount claimed for anafranil be reduced to 60% to account for this intermittent use which I accept is a reasonable reduction. Using the 5% tables for a period of 33 years amounts to $23,514.32 which is allowed.
(l)Fertility Program Costs
Dr Malloy’s evidence has ben discussed above. He has provided details of the costs associated with the plaintiff engaging in that treatment (exhibits 9 and 14). Dr Malloy said that there were 2 processes involved to achieve a pregnancy with a spinal injured male patient. The first involved artificial insemination which would take place over 6 female cycles and the other involved an IVF program for the would be parents. He thought that there were positive indicators for achieving a pregnancy from the artificial insemination methodology provided that the female partner had no fertility problems of her own. Its success otherwise depended upon the quality of the sperm which may have diminished significantly over the years since the accident for various reasons associated with the plaintiff’s condition.
If artificial insemination did not produce a pregnancy an IVF program would be instituted. Dr Molloy gave evidence of an overall pregnancy rate for spinal injured people seen in his clinic accessing treatment at over 70% using a variety of techniques over an ill defined time period.
The average cost of 1 cycle is $4,600 and if 6 cycles were required would be $27,600. The cost to achieve one pregnancy is approximately $27,680. The plaintiff has submitted that an allowance for 2 pregnancies should be made but that this should be discounted to take account of the fact that he may not avail himself of the program and it may be well into the future. A claim for $25,000 is made under this head.
Mr Williams has submitted that the claim should be heavily discounted since the plaintiff’s parenting is likely to be limited to 1 child and may be successful at the first stage. He submitted that an amount of $5,000 is appropriate.
Mr Morris submitted that it is a highly speculative prospect that the plaintiff would embark on such a program and that $20,000 would be an appropriate sum.
I accept that it is speculative whether this plaintiff would engage in such a program. He does not at present have a companion, still less one who has indicated a willingness to engage in this treatment. Even if commenced, the program may not be persevered with after 1 or 2 cycles. I propose to allow an amount of $15,000 for this claim.
(m)Future Hospitalisation Costs
Dr Davies recommended that an allowance of 1 to 1½ weeks per year for hospitalisation ought to be made in respect of the plaintiff (exhibit 8). He said that there was free hospitalisation available at the Princess Alexandra’s Spinal Injuries Unit to the plaintiff and that, in effect, the Unit would be the hospital of choice for the plaintiff should he have any need for hospitalisation. Dr Davies observed that the plaintiff was a person much concerned about his health and well being and that the Unit saw him as an out-patient quite regularly. More likely than not should the plaintiff require hospitalisation he will go to the Princess Alexandra Hospital.
The defendants submit that since he will not be charged for his hospitalisation at the hospital there ought to be no allowance for future hospitalisation.
The vicissitudes of political life and funding for hospitals is something that has only to be stated to be recognised. It is not Dr Davies who makes decisions about charging fees in public hospitals and he did not purport to say that he did. The Health Services Act 1991 in s.68 provides that the subject-matter of a regulation made under the Act may authorise the chief executive to waive fees. It cannot be assumed that for the duration of the plaintiff’s life or any part thereof that free public hospital treatment will continue to be available.
This plaintiff has had few periods of hospitalisation since his injury but Dr Davies commented that he is likely to have more problems as he gets older and his recommendation is reasonable. The cost per day for hospitalisation pursuant to the Health Services Regulation 1992 r.4(1)(h) is $611. For 33 years using the 5% tables amounts to $100,550 which is allowed.
(n)Future Medical Expenses
The plaintiff claims 6 visits to a general practitioner per year at $26.50 per visit (agreed), 1 ultra sound for his urinary tract, the cost of which is $220, and 1 consultation with a specialist in the amount of $168. That gives a total per annum cost of $547, calculated over 33 years using the 5% table results in an amount of $9,004.46. There is no basis for further discounting, indeed the plaintiff may need, as he grows older, to resort to more general practitioner and specialist visits. I will allow the amount of $9,000 under this head.
(o)Future Therapy Expenses
Ms Stephenson in her report (exhibit 16) said that the plaintiff would benefit from having consultation with a physiotherapist for advice on fitness, to review of his exercise program and to prevent deformity. She proposed that 6 to 12 consultations should be provided for per annum with a range of $40 - $70 per consultation. She also suggested that the plaintiff would benefit through advice on specialised equipment and adaption of equipment at intervals with an occupational therapist. She recommended an annual consultation costing between $80 and $120 per annum. The defendants submit that since Dr Davies gave no evidence about the plaintiff’s need for physiotherapy and occupational therapy it ought not be provided for. Ms Stephenson’s expertise was not challenged and I accept her assessment of the plaintiff’s needs and would allow the claimed amount of $9,800.
(p)Holiday Expenses
The plaintiff claims $20,000 for the additional costs to him of taking a holiday. Schedule G to the plaintiff’s submissions shows the current value of a range of holiday destinations each year from the Gold Coast to a 15 day tour of Europe. The costs are the extra costs which are involved for a person with a disability such as the plaintiff (exhibit 22). Prior to injury the plaintiff’s only holidays had been to Stradbroke Island and to the Gold Coast. Although he mentioned some aspirations to travel overseas, there was no suggestion that he was saving to that end. The plaintiff’s past employment record did not suggest that he would ever have been in a financially strong enough position to take, relatively speaking, expensive holidays to more distant places. It is likely that he would have travelled around the State and perhaps Australia financing his trip by obtaining labouring employment from time to time, which is what he did when he travelled north to Pt. Douglas. He has been deprived of that opportunity. There was no indication that he would ever have had sufficient funds or have been able to obtain a loan for outside Australia holidays of the type contemplated in the schedule. The costs for which the defendants are liable are governed by the principles in Sharman v Evans (1976) 138 CLR 563 at 573 per Gibbs and Stephen JJ:
“The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendants; as Barwick CJ put it in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, at p. 661 “The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent”, and see Chulcough v Holley, per Windeyer J (1968) 41 ALJR 336, at p. 338.”
An amount to reflect the extra cost to the plaintiff of an occasional holiday at the Gold Coast which he had previously enjoyed ought to be allowed. An amount of $7,000 based on the figures provided in schedule G is allowed.
(q)Cost of Fund Management
Initially the plaintiff claimed an amount of approximately $140,000 to obtain the assistance of a financial adviser to manage any award of damages which he might obtain. That claim is no longer pursued in light of the decision of the High Court in The Nominal Defendant v Gardikiots (1996) 186 CLR 49. The court held that the only amount which can be provided in relation to an expense incurred in managing verdict monies was an amount directly referrable to the physical impairment suffered as a result of the accident. The basis for the plaintiff’s claim for fund management is his want of intellectual and educational skills.
(r)Damages Summary
Had the plaintiff been successful on the question of liability, damages would have been awarded under the following heads:
Head
$ Amount
Pain and Suffering and Loss of the Amenities of Life Past and Future
180,000.00
Interest on past damages at 2% per annum ($60,000)
9,600.00
Loss of Expectation of Life
3,000.00
Special Damages
310,885.24
Interest on $16,267 at 5% per annum since 6 September 1991
5,815.00
Past Care
84,907.50
Interest thereon at 2% per annum for 421 weeks
13,748.48
Future Care
1,607,908.00
Past Loss of Wages
74,056.45
Interest on $4,000 at 5% per annum since 25 September 1990
1,619.23
Loss of Future Earning Capacity
160,000.00
Loss of Superannuation Benefits - Past and Future
33,755.00
Accommodation needs
30,000.00
Future recurring accommodation costs
40,000.00
Future Aids and Equipment
263,676.59
Future Pharmaceutical expenses
23,514.32
Fertility Costs
15,000.00
Future Hospitalisation
100,550.00
Future Medical Expenses
9,000.00
Future Therapy
9,800.00
Additional Holiday Expenses
7,000.00
Total
2,538,487.00
Conclusion
There will be judgment for the defendants against the plaintiff.
I will hear submissions as to costs.
SCHEDULE OF FUTURE NEED FOR
MEDICAL AIDS AND OTHER EQUIPMENT
6
8
0