Taylor v Canterbury Municipal Council

[2000] NSWSC 1093

CITATION:	TAYLOR v CANTERBURY MUNICIPAL COUNCIL & ORS [2000] NSWSC 1093
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20387/98
HEARING DATE(S):	08/11/99, 09/11/99, 10/11/99, 11/11/99, 12/11/99, 15/11/99, 16/11/99, 17/11/99, 18/11/99, 19/11/99, 19/06/00, 20/06/00, 21/06/00, 22/06/00, 26/06/00, 27/06/00
JUDGMENT DATE:	22 December 2000
PARTIES :	William Roy Taylor - Plaintiff Canterbury Municipal Council - 1st Defendant Christopher John Keogh - 2nd Defendant New South Wales Touch Association - 3rd Defendant Karen Benedet as Executrix of the Estate of Franco Benedet - 4th Defendant Glen Trudgett - Cross-Defendant
JUDGMENT OF:	Barr J at 1

COUNSEL :	GB Hall QC / F Chan - Plaintiff G Little - 1st Defendant D Fagan SC - 2nd and 3rd Defendants R Tonner - 4th Defendant S Finnane - Cross-Defendant
SOLICITORS:	Makinson & d'Apice - Plaintiff Moray & Agnew - 1st Defendant Phillips Fox - 2nd and 3rd Defendants Bartier Perry - 4th Defendant Shaw McDonald - Cross-Defendant
CATCHWORDS:	Negligence - responsibility of Council for management of velodrome
CASES CITED:	Bunyan v Jordan (1936-1937) 57 CLR 1 Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Car and General Insurance Corporation Limited v Seymour [1956] 2 DLR 369 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 Jaensch v Coffey (1983-1984) 155 CLR 549 Havenaar v Havenaar [1982] 1 NSWLR 626 Morgan v Tame [2000] NSWCA 121 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Pyrenees Shire Council v Day (1998) 192 CLR 330 Newcastle Entertainment Security Pty Limited v Simpson [1999] NSWCA 351 Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424 Wilson v Darling Island Stevedoring Co (1955) 95 CLR 43
DECISION:	See paras 88, 95, 100, 105, 241, 242 and 243

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Friday, 22 December 2000

20387/98 - WILLIAM ROY TAYLOR v CANTERBURY MUNICIPAL COUNCIL & ORS

JUDGMENT
1   HIS HONOUR: The first defendant, Canterbury Municipal Council (the Council) owned a park called Tempe Velodrome consisting of a banked, concrete cycle track surrounding a level, grassed pitch marked out for touch football. There was a metal fence at the top of the bank on the outer edge of the cycle track but no fence or obstruction of any kind where the track adjoined the football pitch. On the western side of the track was a grandstand. It was possible to walk from behind the grandstand to the football pitch through a tunnel specially constructed for the purpose. It was also possible to walk from the grandstand to the football pitch by passing through a gate in the fence in front of the grandstand and crossing the track.

2   The council let to the third defendant, New South Wales Touch Association (the Touch Association) portion of the grandstand, which it used as offices. The Touch Association administered the sport of touch football in New South Wales as part of a national scheme. Individual touch football clubs within New South Wales were affiliated with it and paid fees. One such club was Canterbury Bankstown Touch Football Association, whose teams sometimes played at the Velodrome. The second defendant, Christopher John Keogh, was secretary of Canterbury Bankstown Touch Football Association.

3   There was a Sunday touch football competition and the 1990 season began on 29 April 1990. On the second Sunday of the season, 6 May 1990, one of the Canterbury Bankstown teams had a fixture to play a team from South Hurstville. During the first half of the match a group of cyclists, one of whom was the plaintiff, began to use the cycle track to perform what was called a “warm-up”, consisting of twenty laps during which the speed was steadily increased. Riders kept a tight formation in single file and the lead changed once on each lap. The riders were within two or three laps of the end of the warm-up when the first half of the football game ended and the players began to disperse. One of the members of the South Hurstville team, Mr Franco Benedet, stepped onto the track in front of the approaching cyclists. The lead rider, Mr Glen Trudgett, and the rider immediately behind him managed to avoid Mr Benedet, but the plaintiff, who was third in line, collided with him. Mr Benedet was knocked to the concrete surface and sustained head injuries from which he died on the following day. Mrs Karen Benedet, the legal personal representative of the estate of the late Mr Benedet, is the fourth defendant.

4   The plaintiff was thrown to the ground in the collision and sues for damages for the injuries he sustained and for the disabilities and loss which he says resulted. He says that each defendant breached in various ways a duty of care owed to him.

5   As well as denying any such breach of duty, each defendant has pleaded that any loss suffered by the plaintiff resulted from his own negligence. Each defendant also denies liability because, it is said, the plaintiff voluntarily assumed the risks associated with the activity he engaged in.

6   There are several cross-claims seeking contribution or indemnity: the Council has joined the remaining defendants; Mr Keogh and the Touch Association have joined the Council and Mrs Benedet and Mrs Benedet has joined all other defendants. In addition, all defendants except the Council have joined Mr Trudgett as a cross-defendant.

7   The issues raised make it necessary to inquire who was responsible on 6 May 1990 to determine who might enter and use the velodrome and on what conditions.

8   The velodrome was planned and designed in the late 1970s and built on land owned by the Council. It was opened in 1982. There are two cycling seasons in New South Wales, namely a track season which runs from December until about the end March and a road season, which occupies the winter months. It was no doubt in the expectation that the velodrome would not be used by cyclists during the winter months that the planners wanted it to have another use at that time, and that explains why the inner playing field was incorporated in the design.

9   Mr Garry Jenkins, a civil engineer employed by the Council, took part in the design and construction, representing the Council in collaboration with the project manager.

10 A management committee was formed, comprising representatives of the Council and sporting bodies. A written constitution was adopted. Mr Jenkins was secretary of the committee for a number of years after its inauguration. Following its amendment in 1984 the Constitution was as follows -

1. NAME -
The name of the facility shall be - “CANTERBURY VELODROME”
2. MANAGEMENT COMMITTEE -
2.1. The control and management of the Velodrome shall be vested in a Committee appointed by the Canterbury Municipal Council with delegated authority under Section 530 A of the Local Government Act, 1919 (as amended) -
2.2. The Committee shall consist of the following members -
Two (2) Aldermen from Canterbury Municipal Council.
One (1) Officer of Canterbury Municipal Council, nominated by the Town Clerk, together with one (1) substitute on the occasion of the nominee being unable to attend meetings.
One (1) person nominated by the N.S.W. Cyclists Union.
One (1) person nominated by the N.S.W. Touch Association.
One (1) person nominated by the Bankstown Sports Amateur Cycling Club.
2.3. The Officers of the Committee shall consist of a Chairman (who shall be appointed by the Canterbury Municipal Council for a period of twelve (12) months with all Committee Members retiring annually on the anniversary of the Council last elected or at the completion of the term of each Council - whichever is appropriate.
2.4. The Committee may be dissolved by the Council at any time.
2.5. Extraordinary vacancies on the Committee shall be filled by Council after considering recommendations by the Committee.
2.6. Members of the Management Committee shall cease to hold office -
i. If the Committee is dissolved by Council.
ii. By resignation in writing lodged with the Secretary.
iii. If absent without leave from four (4) consecutive meetings.
iv. If he holds any office of profit under or in the gift of the Velodrome.
v. If he is directly or indirectly interested in any contract individually or proposed contract with the Velodrome for the supply of goods, services or labour.

3. MEETINGS -
3.1. The Management Committee shall meet at least once each calendar month at a time and place mutually agreeable, on such regular days and at such regular times as the Committee may determine, and Special Meetings may be called by the Chairman, giving forty-eight (48) hours’ notice to members, in the event of urgent business arising.
3.2. The Chairman shall preside at all meetings of the Committee at which he/she present, and in his/her absence, the Vice-Chairman shall preside and, if he/she also be absent, the first business of every such meeting shall be to elect a Chairman to preside over such meeting and for the purpose of so presiding shall have the powers of the Chairman.
3.3. The Chairman shall, in the case of equality of voting at any such meeting of the Committee, have a casting vote.
3.4. At all meetings of the Management Committee, four (4) members present shall constitute a quorum.
3.5. Except as elsewhere provide therein, Special Meetings of the Management Committee shall be summoned by the Honorary Secretary on the call of the Chairman, or on a written requisition signed by not less then three (3) members of the Committee.
3.6. At all Special Meetings of the Committee, business other than that for which the meeting has been convened shall not be transacted unless all the members of the Committee are present and they unanimously consent to such other business being transacted.
3.7. The Honorary Secretary shall be responsible for recording the Minutes of all meetings, dealing with all records and correspondence of the Committee, and notifying all members of meetings, including details of agendas.
3.8. Voting shall be by a show of hands.

4. POWERS AND DUTIES OF MANAGEMENT COMMITTEE -
4.1. The Committee in accordance with Section 530A of the Local Government Act is authorised to exercise and perform on Council’s behalf the following powers, authorities, duties and functions in respect of the Velodrome -
i. To have the care, control and management of the premises.
ii. To recommend hire charges in respect of the premises and its Accountrements (sic): the Committee shall have no power to fix any charge or fee.
iii. Make recommendations in improvements to facilities.
iv. Provide a forum for users to express opinions on any matters relating to the Velodrome and to deal with complaints concerning the facility.
v. Receive information, minutes of Committee meetings and reports from relevant Officers.
vi. Prepare an annual budget for considerations by Council, setting out estimated income and expenditures for the following twelve (12) months.
vii. To arrange lettings and collect hire charges in accordance with the rates fixed by Council.
viii. The facilities of the Velodrome will be made available for community use on the recommendations of the committee and endorsement by Council.
4.2. The Council shall have the right to veto any decision of the Committee.
4.3. The Committee shall have power to make appeals for public subscriptions.
4.4. Any moneys received shall be covered by official receipt.
4.5. No payment shall be made to any Committee member shose (sic) services shall be Honorary. The principal accounting function of the Centre shall be maintained by the Canterbury Municipal Council.
4.6. The Minutes and other records of the Velodrome shall be available for inspection by any authorised servant of Council.
4.7. Members of the Committee shall not hinder any authorised servant of the Council in the performance of his duties on the Centre’s premises.
4.8. The Committee shall have the power to submit for the council’s consideration, recommendations on any aspect of the control and management of the premises or undertaking which is outside the scope of this Constitution and the Council’s decision thereon shall be final.
4.9. The operation of the Velodrome shall be as far as possible be conducted in a manner to ensure that the Velodrome is financially viable.

5. AMENDMENT OF CONSITUTION -
Any Amendment to the Constitution shall be subject to approval by Council and the Council shall have the power from time to time, to amend the Constitution in such way as it thinks fit.

11   Notwithstanding the provision for the committee to meet at least once each month the evidence of Mr Jenkins, which I accept, shows that it met only at two-monthly or less frequent intervals when business justified it. For example, it would meet at the beginning of a season to consider who might be allowed to use the facilities for the season, what rights they might have and the like. It seems clear that the management committee made only broad decisions of that kind and then only with the knowledge and the approval of the Council.

12   The terms of the constitution demonstrate the Council’s intention to retain detailed control over the management of the velodrome. Even though the committee had the care, control and management, the Council could veto any committee decision and could if it wished dissolve the committee altogether.

13   What happened in practice confirms that intention. The Council was very much concerned with the day-to-day management of activities at the velodrome. It employed three rangers, twenty groundsmen and twenty other staff who were concerned with this and the other hundred or so sportsgrounds or parks within the municipality. The velodrome was set in a substantial playing area called Waterworth Park and two groundsmen were stationed there between Monday and Friday each week. Rangers would visit the premises intermittently at any time during a seven-day week.

14   Bookings for the use of the track or the playing field had to be made through the Council booking officer, Mr Warren Smails. His job was to receive applications for the use of the facilities and issue permits, which might be for single or multiple occasions. At least part of the reason for that, of course, was that the Council wanted to be paid by those using the velodrome so as to achieve the object of cl 4.9 of the constitution.

15   The Council made itself aware, through the knowledge of its rangers and groundsmen, of who was using the velodrome. Mr Jenkins said this -

Q. Prior to 6 May 1990, were you aware that cyclists frequently used the track for training without having any booking for that use?
A. Yes, I wouldn’t describe it as frequently.
Q. That information that such use was made came to you through the groundsmen, or from your own observation of going to the place?
A. Both.
Q. Were you also aware that there was use made of the inner field from time to time by other people on a casual basis without any booking?
A. No, I’m not.
Q. And I don’t mean necessarily for an organised game or competition, or just children looking for somewhere to play or adults looking for somewhere to kick a football, just making casual use?
A. I am not aware.
Q. Did you not receive reports from groundsmen of that occurring?
A. One.

16   The velodrome was surrounded by a steel post and mesh fence topped with barbed wire, which if maintained would be enough to keep out persons wanting casually to enter. Adjacent to the grandstand approaches was a gate which was padlocked when the velodrome was not in use. The Touch Association had to open that gate so that it and its visitors could have access to its offices in the grandstand.

17   The Council issued keys for the padlocked gate. They were of a kind that could not be duplicated in the ordinary way. According to Mr Jenkins, keys were issued initially to the Touch Association, the New South Wales Cycling Federation, the Canterbury Bankstown Sports Cycle Club and perhaps others. Mr Keogh had a key as secretary of the Canterbury Bankstown Touch Association and said that that Association had at least two copies.

18   I am satisfied on the evidence of Mr Jenkins that the Council knew that unauthorised persons used the cycle track from time to time and that on least one occasion there had been unauthorised use of the inner field.

19   The perimeter gate had to be open during the business hours of the Touch Association and the Council knew that anyone could enter through the gate at such times and gain access to any part of the stadium.

20   Of course, the Touch Association had no right or obligation generally to keep anyone out of the velodrome. Unless it had a booking it had no right itself to occupy the track, the field or any part of the velodrome other than the portion let to it and such other parts of the velodrome it was necessary to use in order to gain access to its offices.

21   Whenever touch football games were organised either on the inner field or on the surrounding fields of Waterworth Park, it was necessary for the stadium to be opened, because matches were timed by means of equipment situated within the stadium.

22   I accept the evidence of Mr Jenkins that the Council was aware of the risk of accident if the cycle track was used when a game was being played in the centre field.

23   Although it was never the intention of the Council to permit multiple use of the velodrome, it is clear that it knew that such use did take place. In a memorandum written on 8 May 1990 Mr Smail wrote -

With the practice of issuing keys to the various cycling organisations and Touch Associations it is difficult to police the unauthorised use of the amenity by these organisations.

24   Mr Smail agreed in evidence that he had been aware for some time before 6 May 1990 that it was difficult to police the unauthorised use of the velodrome because Council had issued “so many keys to various people”.

25   By May 1990 the plaintiff had been riding cycles competitively for a number of years. He had trained at the velodrome on Tuesdays and Thursdays for about two years. Usually he and a coach and one other cyclist were present on such occasions. Early in 1990 he began to attend on weekends, sometimes on Saturday and sometimes on Sunday. Usually there were four or five cyclists in a group. If the gate were not open they would wait until the groundsman arrived and let them in.

26   About one month before May 1990 the plaintiff was placed tenth in the sprint event in the Australian Cycling Championships in Adelaide, and as a result was invited to join the New South Wales training squad. As a result, he attended the velodrome on a number of occasions, including 29 April and 6 May, in the company of cyclists, some of whom had greater experience and qualifications than he.

27   Up until two weeks before the day on which the plaintiff and Mr Benedet collided, the plaintiff attended the velodrome as a member of a group of riders who were training as a regular part of their track cycling season. However, the season ended towards the end of April 1990. As the plaintiff conceded in cross-examination, although he and his colleagues continued to train during the weekends of 29 April and 6 May 1990, the training on those days was not done as part of the track season. The plaintiff gave this evidence in answer to questions asked by counsel for the Council -

Q. … In New South Wales is it fair to say that the season would normally run to about the last weekend in April?
A. Yes.
Q. And then unofficially people who wish to keep fit or want to participate overseas can carry on with their training and preparation for that on a sort of unofficial or individual basis. Is that a fair way to put it?
A. They can.
Q. What I’m suggesting to you is that up until the week before this accident, the times you had attended at the velodrome had been part of the official cycling season?
A. Yes.
Q. And it was only the two weeks that you were there when the touch football was being played on the arena both times, that, were after the completion of the official season and you were there on a more unofficial basis. Is that fair to say?
A. That we are there without the knowledge of the New South Wales Cycling Federation, yes.

28   The plaintiff and his colleagues might well have known from their experience during the previous two years that the touch football season began when the track cycling season ended. If they did not, the fact must have been obvious to them when they attended on 29 April 1990 because footballers were then present, using the inner field. On that occasion the plaintiff and a professional cyclist, Geoffrey Stoker, attended, among others. According to the evidence of Mr Keogh, whom I accept as a reliable witness, the winter touch football competition commenced on that day and he attended. Touch football games were held between 8am and 11am. During the play, cyclists were using the track. There was a collision or a near miss between a cyclist and someone walking on the track. Mr Keogh went and spoke to the cyclists. He told them that they should not be there and that the Touch Association had the ground booked, that it was not to be used for cycling but only for touch football. He said that although the Touch Association had the ground booked for the whole day, the cyclists were quite welcome to use it after the games came to an end. The attitude of the cyclists was that this was a velodrome and that the footballers should not be there at all. The conversation became heated.

29   In fact Mr Keogh was mistaken and the Touch Association had overlooked booking the velodrome and Waterworth Park for the season. But as I shall explain, it was a mere formality that was lacking, and the Council and the Touch Association were of a mind that the Touch Association should have exclusive use of the velodrome on 29 April and on subsequent weekends during the touch football season. On the other hand, Mr Stoker and his colleagues knew that their season had come to an end. They knew that they had no booking and I think that they must have known that they needed a booking before they could use the velodrome.

30   They must also have known of the risk of injury which would result from cyclists and footballers single-mindedly following their pursuits side by side. Mr Stoker gave this evidence.

Q. Weren’t you concerned about the risks of a football accidentally being thrown onto the track, or kicked onto the track, or something?
A. Well, in touch football I don’t think they kick the ball.
Q. I suppose they drop passes or miss passes, weren’t you concerned about that?
A. Mildly, yes.
Q. Well, I take it that at fifty-five kilometres an hour ( there was evidence that the cyclists reached such speeds ) you wouldn’t want to suddenly find a football bouncing around the front of your wheel, would you?
A. No.
Q. But nevertheless you decided it was not sufficient risk to prevent you doing practice?
A. It wasn’t really my decision, but we went on and did it anyway.
Q. It was a group decision to go on and do it, was it, or did you always just get on your bikes and get on the track?
A. From my memory we had discussed with the footballers that were playing on the inside of the track, and maybe we were subconsciously thinking maybe they will have a bit of consideration for us as well as us for them.
…
Q. Were the other members of your informal group present while this discussion took place with the touch footballers?
A. Yes, where we used to sit at the track the touch footballers would have walked right past our group while we were sitting there and I think the discussions would have taken place right in that area so everyone would have heard the same discussion.

31   Mr Stoker was a professional cyclist and a man of some consequence in the group. I think that he must have been engaged in the conversation which Mr Keogh had with the cyclists. It seems possible from his evidence, however, that he may have had words with individual footballers as well.

32   The plaintiff was asked about any conversation that took place on 29 April. He said that he had been present but that he was not aware that there had been an altercation or dispute between the touch footballers and the cyclists on that occasion. He said that he did not recall if touch football was being played. He said that he had been training with Mr Stoker. There were these questions and answers -

Q. Had you been training with him the previous weekend?
A. Yes.
Q. Did you not see him the previous weekend having a discussion with members of the touch football team?
A. He may have.
Q. You didn’t see it?
A. I didn’t see any altercation. He may have been speaking to someone, I’m not sure.

33   I think that the collision or near miss on 29 April and the discussion or discussions which followed, which I think were heated in their nature, were probably apparent to all the members of Mr Stoker’s team. Although the plaintiff may not, by the time he gave evidence, have remembered such events, I think that he must have known about them on 29 April and on the following Sunday. Although the plaintiff might not remember touch football being played, the fact must have been obvious to him at the time.

34   Mr Keogh arrived at the velodrome a little after 7am on 6 May 1990 and set up markers on the inner field of the velodrome and on pitches in Waterworth Park. He had finished doing those duties on the inner field by 7.30 or 7.45am. The cyclists had not yet arrived. He normally refereed on such occasions. The first match started at 8am and it seems likely that he went to referee one of the matches in Waterworth Park, commencing at that time. He was part way through refereeing a 9 o’clock match when he learned of the collision between the plaintiff and Mr Benedet.

35   The plaintiff arrived with his father (Mr Taylor) between 8 and 8.30am. Mr Taylor left him there and went away for a short time. The plaintiff assembled his cycle and went onto the track. Other riders were there, including Mr Stoker, Mr Trudgett, a man called Bird, one other man and a woman. Also present was Mr Kenneth Graham, an employee of the New South Wales Institute of Sport. He was an expert who was advising Mr Stoker and Mr Trudgett about their training.

36   An issue arises whether there was a sign at or near the entrance to the velodrome. The plaintiff said that there was such a sign but could not remember what it said. Mr Graham said that he believed that he saw a sign at the left or the right-hand side at the top of the ramp which said “Track open, field closed”. Mr Graham had not been asked until many years after these events to record his recollection of them in preparation for giving evidence. I thought him tentative during his examination in chief. When he was cross-examined, however, he appeared to gain confidence and ended up by saying that the existence of the sign was the reason why the cyclists decided to train, and the implication was that but for the sign they would not have gone onto the track. I think this quite unlikely in view of Mr Stoker’s uncompromising attitude that he and his colleagues had the right to use the velodrome because it had been built for cyclists like themselves.

37   Mr Graham had attended at the velodrome on a number of occasions during the track cycling season, when the football season was closed, and may also have attended on occasions after 6 May 1990. I am not satisfied that the sign he spoke about existed on 6 May 1990. He may well have been mistaken about the particular day upon which he saw such a sign. Accordingly, though I think that he was doing his best to tell the truth, I do not think that I can treat him as a reliable witness in this respect.

38   I prefer the evidence of Mr Keogh, a witness who attended on 29 April and on 6 May 1990 and had special reasons to remember the events of both days. I found him an honest witness. I think that his evidence denying that there was such a sign on 6 May 1990 is reliable, and I find that there was no such sign.

39   The cycle track consisted of a banked concrete surface which fell towards the centre. The higher, outer edges of the track were fenced. The track ran around a level, grassed area, which I have previously referred to as the inner field. The sides of the track were parallel and joined by semi-circular ends which were banked more steeply than the sides.

40   A single touch football pitch was marked on the inner field. It was rectangular and its longer sides were parallel to the straight sides of the cycle track. It is not possible to be certain about the dimensions of the pitch which was marked on 6 May 1990, but it seems reasonable to suppose that they were not significantly differently from those shown in photographs taken recently and tendered in evidence. I think that the edges of the marked pitch must have come to within about two metres of the inner edge of the cycle track.

41   The border between the cycle track and the grass was not fenced.

42   6 May 1990 was the second day of the winter touch football season. On each of a number of pitches in Waterworth Park and on the pitch marked on the inner field of the velodrome three matches took place, one starting at 8am, one at 9am and the last at 10am. The starting and finishing times of each period of play were marked by a siren timed and operated from within the premises of the Touch Association or close to those premises. The matches were formal competition matches between teams each of seven players. Each side had up to six reserve players and there were frequent changes of players in order to ensure that players performed to the best of their ability, particularly as to speed of running. Players not taking part in the play from time to time waited on the sidelines. Each match was managed by a referee who used a whistle to control play.

43   The cyclists’ “warm-up” was carried out according to this pattern. Four, perhaps five, riders would ride in single file. The leader would set the pace. Every lap of the track the lead would change. The leading rider would swing up the bank and return to the back of the line. Each cyclist following another rode as closely as possible to that other and it was usual to maintain a distance of between six and eight inches between the front wheel of the following cycle and the rear wheel of the cycle in front. Such a following rider no doubt had to concentrate a great deal of attention on keeping an appropriate distance from the cycle in front and there must have been little if any opportunity for any such rider to observe the track ahead. Even if such a rider were to look up, the body of the rider in front would prevent much from being seen. It was understood that it was the job of the leading rider to keep a lookout. Travelling in this manner, the team gradually built up speed until they reached a maximum speed of fifty-five kilometres per hour or more.

44   Early on the morning of 6 May 1990, probably close to 9am, two groups of cyclists were using the track. So was an elderly, lone cyclist. However, I think that at the time of the events which led to the death of Mr Benedet only one team of cyclists was using the track.

45   That team, which included the plaintiff, Mr Stoker and Mr Trudgett, had been riding between ten and fifteen minutes before the collision occurred. They must therefore have been well into their exercise and travelling at close to their maximum speed.

46   The cycles had no bells or warning devices and carried no brakes. It could take a rider half a lap or more to stop, depending on the speed travelled at the time. The cycles made very little sound.

47   Mr David Ryan was playing in the same match. He had crossed the track before the game began and had almost collided with the elderly cyclist, so he was very much aware of those using the track. He estimated that the sideline was four feet from the track. His evidence included these questions and answers -

Q. Did you notice that they were getting faster and faster?
A. Yes.
Q. But you even spoke to one of the touch players about the fact these people from tearing around?
A. I spoke to one fellow about the near miss that I had but during the course of the game I mentioned in general conversation to whoever was in earshot of me saying it, “Jeez, they’re going quickly” and I was very aware of it, probably because of the earlier one and the closeness with which we were to the track. You have no idea how close it was and we were standing there like that and seen. The time when I was on the sideline I actually stood on the field watching them coming because I was aware when they were going around because I was worried. I get a bit excited when I am watching a game and I was worried about stepping back on to it because it was not far so I stood there, and the track, and they were coming this way. I stood this way watching. From there so if I stepped back anywhere it was on to grass.

48   Mr Trudgett was the leader of the group on the lap in which Mr Benedet was struck. As Mr Trudgett rode along the straight on the grandstand side of the track he noticed Mr Benedet slowly walking backwards onto the track. He shouted to warn him and began to head up the track and so avoided colliding with him. The second rider also avoided Mr Benedet. The plaintiff was the third rider.

49   Each half of a football game lasted twenty-five minutes and began as soon after the siren as the referee blew the whistle. It ended as soon after the closing siren as the referee blew the whistle. The siren for the commencement of each half sounded on the hour and the half hour. Half time in each game lasted about five minutes.

50   Mr Paul Judge was the manager and captain of the team for which Mr Benedet was playing. He played in the match with Mr Benedet. The team normally got together during the half time interval to discuss the match and Mr Judge called the players over to him. Although the members of the team were close to the cycle track - he estimated two metres - he was not intending to take the team across the track into the grandstand. Mr Benedet walked towards him but continued past him, out of his sight. Mr Judge did not see him again until he heard a shout and then he turned and saw Mr Benedet perhaps a metre and a half onto the cycle track.

51   Mr Ryan, too, heard the shout and looked towards the track. Mr Benedet was standing at or by the track as the group of players congregated. He was very close to the track and turned to the track. His right foot turned to the left as though he had pivoted off that foot onto his left. He was on the track and was struck. He may have stepped two steps, but he did not move very far.

52   Mr Graham thought that he stepped backwards onto the track.

53   The point at which Mr Benedet was struck was about fifteen metres short of a marked finish line. Not far from that line, on the outer side of the track, was the gate by which access could be obtained from the track to the grandstand. One of the witnesses surmised that Mr Benedet might have been intending to cross the track in order to speak to his wife and child, who were then in the grandstand. I do not think that that was Mr Benedet’s intention. First, there was little time in which to do so and the team captain wanted to speak to the members of the team. Secondly, although there is no uniform description of what he did, the preponderance of the evidence suggests that he was not moving as though purposefully to cross the track and go to the grandstand. He seems rather to have stepped backwards or perhaps sideways onto the track, oblivious not only of the near presence of the approaching riders but also of just where he was standing. I think that his attention was distracted because he was having a conversation with one or more of the other players.

54   At the beginning of 1990 Mr Keogh spoke to Mr Smail and I accept that he told him that for the forthcoming touch football season he desired on behalf of Canterbury Bankstown Touch Football Association to book all the fields in the Tempe area, that is, the inner field of the velodrome and the pitches in Waterworth Park. Mr Smail said in evidence that he thought that there was such a conversation. Mr Smail’s system in such a case was to issue permits once the person booking had confirmed the dates required, provided there were no clash with other bookings. Mr Smail issued permits dated 2 May 1990, but they permitted use only of grounds in Waterworth Park. Mr Keogh did not inspect the permits until he learned of the collision with Mr Benedet. When he did so, he realised that the permits were not as he had expected and told Mr Smail that his organisation had used the inner field on 29 April and 6 May and that permission was required. Mr Smail referred the matter to Council and in due course issued permits dated 10 May 1990 authorising the use of the inner field on the days I have mentioned.

55   Mr Smail was asked in evidence whether, before the issue of the permits on 10 May, he had authorised the use of the velodrome on 29 April and 6 May and said that he had not. I accept his evidence only insofar as it deals with the issue of written permits. I am satisfied that the Council was well aware, following the conversation between Mr Keogh and Mr Smail early in 1990, that touch football matches were intended to be played on the inner field on and after 29 April 1990.

56   The evidence of Mr Keogh was that after his conversation with Mr Smail early in 1990 he believed that he had done all that was necessary to make the bookings, and I think, in view of Mr Smail’s system, that that belief was a reasonable one. In my opinion the lack of formal permission was the Council’s error. In my opinion Mr Keogh and the organisation he represented was entitled to use the inner field on 29 April and 6 May 1990 as though Council had observed the formalities.

The case against the Council

57   The plaintiff has particularised his case against the Council in a number of ways, but essentially it is that the Council failed to prevent dual use of the velodrome and the risk of danger to users, including the plaintiff, that thereby arose. The direct result of its failure to control use of the stadium was the obvious risk that a cyclist using the track might be injured as a result of an incident of the simultaneous conduct of a touch football match on a pitch close to the track.

58   The risk of injury arising out of the dual use of the stadium was obvious and foreseeable. The Council did not submit otherwise. Instead, Mr Little, for the Council, submitted first that any duty of the Council towards persons using the velodrome was a delegable one. He referred to Newcastle Entertainment Security Pty Limited v Simpson [1999] NSWCA 351 and Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520. I think that the submission was well made and that the risk of injury arising from the simultaneous dual use of the velodrome was not one of those in respect of which it could be said that the Council’s duty to take reasonable care should be replaced by a duty to ensure that reasonable care was taken.

59   Mr Little went on to submit that in order to succeed the plaintiff had to establish that the Council was vicariously liable for the failure of Mr Keogh either to terminate the touch football games or to advise the Council that uninvited cyclists were insisting on using the track whilst touch football games were being played. Alternatively, but more faintly, it was submitted that the Council had delegated its duty to the management committee.

60   I do not accept these submissions. I do not think that the Council, by permitting Mr Keogh and his organisation to occupy the inner field on 29 April and 6 May, became thereby entitled to have him discharge its duty of care to ensure that dual simultaneous use did not take place. There was no formal or informal arrangement by which that should happen and I do not think that the circumstances imply or require that any such thing should have happened. No doubt Mr Keogh, in remonstrating with the cyclists on 29 April, did what he could to remove a danger which was obvious to him, but his duty was to himself and to the organisation he represented.

61   Quite apart from that, Mr Keogh must have left the velodrome itself before 8 o’clock so as to referee a match on one of the Waterworth Park pitches. I accept that he never saw cyclists there on that day. They arrived later on, probably not before 8.30am. The collision took place, of course, after the half-way point of the 9 o’clock match.

62   For reasons which I have already explained, I am satisfied that there was no delegation by the Council to the management committee of its duty to act reasonably towards users of the velodrome, especially where they encountered the danger of injury because of simultaneous dual use. The committee had no authority to manage events, for example, by erecting signs and barriers and directing the movement of people. It had no authority to commit the Council to spending money on measures of control.

63   Mr Little’s next submission was that the Council was not aware of the dual use of the velodrome. I do not accept that submission, though it would have been a complete answer to it to observe that the Council ought to have been aware. It seems clear to me that the Council became aware early in 1990, following the conversation between Mr Keogh and Mr Smail, that the Canterbury Bankstown Touch Association would be holding its matches at Tempe, including on the inner field, from the commencement of the forthcoming season.

64   Although Council must also have known that the cycle track season would have ended by that time, it was also aware that there was frequent unauthorised use of the cycle track. Mr Jenkins knew that cyclists often used the track and that on any given day it was highly probably that one or more cyclists would be using the ground for training. He was aware of the danger of dual use. The Council had a policy against it. He went on to say, however, that the track was generally locked at weekends and used only by persons who had booked.

65   In fact there was no requirement for cyclists to book casual use of the cycle track out of season and it was not until 11 October 1990 that the Council resolved to restrict access to the track to riders registered with the Australian Cycling Federation and to charge a fee for use.

66   In my opinion the Council must have realised that, though it might permit only one use of the stadium at a time, there was a constant risk of dual use in practice by the entry by unauthorised persons. The Council knew that whenever the gate was open, such a thing could happen and was likely to happen. I think that the Council did know of the risk.

67   Then it was submitted that the only liability of the Council was towards persons who were not able to take care of themselves, people with particular vulnerability to injury. Reliance was placed upon the judgment of McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 and to problems of management by local councils of public space such as beaches, where more than one activity might take place simultaneously, giving rise to the risk of injury to some participants who were unable to protect themselves in all the circumstances.

68   Any view the law might take about the liability of a public authority whose duty is to manage such a public space will not in my opinion determine the liability of the Council in the present case. I think that the guiding principle is as was stated by Mason J in Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424 at 459-461. Having discussed breach by a public authority of a statutory duty, his Honour continued -

Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so: see Revesz v. The Commonwealth (1951) 51 S.R. (N.S.W.) 63 . But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning: see, e.g. Barnes v. Irwell Valley Water Board [1939] 1 K.B. 21 ; Knight v. Sheffield Corporation[1942] 2 All E.R. 411 ; Fisher v. Ruislip-Northwood Urban District Council [1945] K.B. 584 ; Bird v. Pearce; Ex parte Somerset County Council (1979) 77 L.G.R. 753 .
…
There are other situations in which an authority’s occupation of premises ( Voli (19630 110 C.L.R. 74 ) or its ownership or control of a structure in a highway or of a public place ( Buckle v. Bayswater Road Board (1936) 57 C.L.R. 259, at pp. 286-287 ; Aiken v. Kingborough Corporation (1939) 62 C.L.R. 179 ) attracts to it a duty of care. In these cases the statute facilitates the existence of a common law duty of care.
…
And then there are situations in which a public authority, not otherwise under a relevant duty, may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action. Such a relationship has been held to arise where a person, by practice or past conduct upon which other persons come to rely, creates a self-imposed duty to take positive action to protect the safety or interests of another or at least to warn him that he or his interests are at risk: Mercer v. South Eastern & Chatham Railway Companies’ Managing Committee [1922] 2 K.B. 549 ; Morash v. Lockhart & Ritchie Ltd. (1978) 95 D.L.R. (3d) 647 ; cf. Pennant Hills Restaurants Pty. Ltd. v. Barrell Insurances Pty. Ltd. (1981) 145 C.L.R. 625.

69   The Council was conducting a sporting facility which in many ways was not unlike a commercial business carried out for the same purpose. Its purpose, apart from promoting the sports which might be carried on there, was to derive income from the facility. It encouraged members of the public to use it. It knew or ought to have known that if it failed to control the use of the velodrome and thereby allow cycling and touch football to proceed simultaneously there would be a risk of harm to those engaged in those sports. In my opinion the Council had a duty to prevent that harm. Parramatta City Council v Lutz (1988) 12 NSWLR 293; Pyrenees Shire Council v Day (1998) 192 CLR 330.

70   Then it was submitted that the Council could in any event have done nothing to prevent dual use, given the attitude of the cyclists as displayed by Mr Stoker during his conversation with Mr Keogh on 29 April. It was submitted that they would have done what they wanted to do, come what may.

71   I do not accept this submission. There were a number of simple and inexpensive measures which the Council could have taken to prevent dual use. Signs could have been erected. Barriers could have been placed across the cycle track. Rangers or other employees could have attended. It was submitted on behalf of the Council that it occupied one hundred or so sports grounds of which this was only one and that the cost of having a person on duty would have been so great as to make it impracticable to do so. That submission, I think, overlooked the fact that this was a special facility, the dual use of which gave rise to a peculiar danger which was unlikely to exist at an ordinary sports field. I think that special measures were justified in the circumstances.

72   Only a few days after the events the Council erected substantial fencing, which allowed visitors to enter the Touch Association’s premises in the grandstand but which cut off access to the cycle track.

73   In my opinion the Council failed to control the use of the stadium by any of these measures and thereby fell into breach of its duty towards persons such as the plaintiff who might use the velodrome during times of dual simultaneous use.

74   It was submitted on behalf of the defendants that no duty of care was owed to the plaintiff insofar as the injuries he suffered were psychiatric, because a person of normal fortitude would not have suffered psychiatric injury in the circumstances that befell the plaintiff. Reference was made to Jaensch v Coffey (1983-1984) 155 CLR 549 and Morgan v Tame [2000] NSWCA 121. See also Bunyan v Jordan (1936-1937) 57 CLR 1.

75   I think that any person of normal fortitude occupying the plaintiff’s position, seeing Mr Benedet in terminal distress and realising that his imminent death, and later his death, were caused by the collision would probably have suffered psychiatric injury. In the circumstances the plaintiff’s peculiar susceptibility to psychiatric injury does not prevent his recovering damages. Havenaar v Havenaar [1982] 1 NSWLR 626; Morgan v Tame.

76   The tunnel under the cycle track was approached from outside the track by a ramp which led from a path near the western side of the rear of the grandstand. A ramp at the inner end of the tunnel led up to the western side of the velodrome, inside the cycle track not far from the western edge and not far from the marked touch football pitch.

77   The plaintiff pleaded several particulars of negligence, the substance of which was the Council’s failure to stop Mr Benedet crossing the cycle track and make him use the tunnel in order to get from the inner field to the grandstand. All those particulars assume that Mr Benedet was crossing the track in order to get to the grandstand when he was struck. I have explained why I am not satisfied that that is what Mr Benedet was doing. The Council’s negligence has not been made out in the manner particularised.

The plaintiff’s voluntary assumption of risk and negligence

78   Mr Little submitted that the plaintiff voluntarily assumed the risks inherent in carrying on his pursuit of cycling and, alternatively, that he himself was negligent. It is convenient to deal with these matters together.

79   The plaintiff was born on 24 March 1973 and was seventeen years old at the time of the collision. Mr Taylor is a cycling enthusiast and was for many years a competitive cyclist in club and State titles. Eventually he was appointed a State commissaire, a title given to those who are placed in charge of race meetings. The plaintiff was thus introduced to cycling at an early age and began to enter children’s races in 1978, when he was five years of age. Exhibit L is a list of medals and trophies awarded by the New South Wales Cycling Federation and junior cycling institutions. It shows that the plaintiff had a good deal of ability as a child and as a junior amateur cyclist. Between 1984 and 1989 he was awarded eight gold medals, six silver medals and five bronze medals by the New South Wales Cycling Federation in sub-juvenile and juvenile road and track events. In 1985, when a sub-juvenile, he was named cyclist of the year. His ambition was to become a professional cyclist and to compete in the Olympic Games.

80   By 1990 the plaintiff was well experienced in road and track riding. As would be expected of a person with such experience, he had had a number of accidents and falls and had injured himself on a number of occasions. Some of the accidents involved collisions with other cycles. At least one involved a collision with a road vehicle and at least one involved a fall when the plaintiff negotiating a road bend in wet weather. He was well aware of the techniques used in team racing and of the need to concentrate hard on the rear of the cycle in front because of the small separation between cycles. He used to devote his whole attention to that aspect of the race.

81   The plaintiff said in evidence that he commenced cycling at between 8 and 8.30am, but he had told the police in a statement not long after the event that he began at about 9.30am. I think it probable, because of the evidence of Mr Judge and Mr Ryan, that following a warm up of a few minutes, the cyclists began to ride seriously and competitively at about 9.25am, about ten minutes before the close of the first half of the touch football match. The plaintiff told police in his statement that he saw that there was a touch football game being played on the centre field. In his evidence he said that that was less accurate than what he then said, namely that although he was aware that there were footballers on the field, he did not know whether they were playing a game. He said that his statement had meant to convey that he assumed that there was a game going on.

82   Given that the game was an official club fixture, that the players were wearing bright yellow and green uniforms, that the referee used a whistle to control play and that the end of the first half was timed by reference to a loud siren, I think that it must have been obvious to the plaintiff that touch footballers were seriously engaged in a match on the inner field. Moreover, he had been present on the Sunday before and had seen touch footballers playing on that occasion as well. He knew that he was there unofficially without the knowledge or approval of his cycling body.

83   Mr Taylor said in evidence that it had never been suggested to him that permission was needed to use the cycle track and that he had never seen documents that led him to believe that formal permission was needed. This evidence implied that Mr Taylor believed that the cyclists had the right to use the velodrome. I do not accept that that was his belief. He had been attending the velodrome for some years to observe or take part in training and competitive events. He knew that there was a track cycling season and must have known that there was a touch football season. He must also have known that when one began the other ended.

84   I think that it was obvious to the plaintiff that the cycling track season was over and the touch football season had begun. Any use of the track was therefore likely to give rise to quite different consequences because of the proximity of footballers who were likely to be giving their undivided attention to their sport in close proximity to the riders.

85   The plaintiff rode a number of laps solo before forming up with the other riders and for that reason alone had plenty of opportunity to observe what was happening on the inner field. I am satisfied that the touch football match was then in progress. He was asked about this and said that he would not have looked. He was well aware of the speeds he and his colleagues were likely to reach during the warm up, of the close proximity of his cycle to the next and of the limited opportunity he would have to observe events around him once the warm up started and the speed approached its maximum. If he had bothered to think about it, he would have realised what an extraordinarily pursuit he was undertaking given the proximity of the touch footballers.

86   I am satisfied that when Mr Benedet stepped onto the track Mr Trudget was the lead rider. I am satisfied that as soon as he saw Mr Benedet on the track he called out a warning and moved his cycle up the track in the appropriate manner. That warning was heard and heeded by the second cyclist in line. The fact that the plaintiff’s cycle collided with Mr Benedet does not of itself suggest to me that the plaintiff failed to do anything that he might reasonably have done and I think that it was probably impossible for him to avoid the collision. I do not think that his riding at that time was any more unreasonable than at any other part of the warm up. His negligence, for that is what it was, consisted in his undertaking the dangerous pursuit in the circumstances I have described.

87   It was submitted on his behalf that at seventeen years of age he should be regarded as a boy among men, taking his lead from his more experienced colleagues and that a finding a negligence on his part should therefore be less readily reached. I do not accept this submission. Notwithstanding his age, the plaintiff was highly experienced and was able easily to appreciate the dangers of participating in the warm up. He denied a suggestion that he was trying to impress his elite colleagues and I do not think that he was overborne by them.

88   I think that as between the plaintiff and the Council, the responsibility for the collision and its consequences is equal.

89   I do not think, however, that in the circumstances the plaintiff can be said by participating in the warm up voluntarily to have assumed the risk of injury. What the Council must show to establish such a defence is that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. The issue is not whether the plaintiff voluntarily and rashly exposed himself to the risk of injury, but whether he agreed that if injury befell him the loss should be on him and not on the defendant. Car and General Insurance Corporation Limited v Seymour [1956] 2 DLR 369 at 371-372; Wilson v Darling Island Stevedoring Co (1955) 95 CLR 43 at 82.

The case against Mr Keogh

90   The plaintiff particularises his claim against Mr Keogh in number of ways, and they may be broadly summarised thus: using the inner field without authority, holding a football match whilst cyclists were using the track, failing to control the footballers or the cyclists, failing to warn the plaintiff of the presence of Mr Benedet or stopping him from crossing, failing to obtain exclusive use of the velodrome, failing to abandon the football game when the cyclists began using the track and failing to erect signs, fencing, barricades or other means to stop people going onto the track and failing to advise users of the playing field not to cross the track and only to use the tunnel.

91   I am satisfied for the reasons I have explained that Mr Keogh booked the exclusive use of the inner field early in 1990 for the sole purpose of holding a touch football match and was entitled to expect that the teams rostered to play there would be able to do so without encountering the danger of cyclists using the cycle track. I am satisfied that when the Council subsequently issued written authority for that use on 29 April and 6 May it was doing no more than supplying written confirmation of permission already granted. Although Mr Keogh may well have had duties to control the footballers in the ordinary way in their use of the booked facilities, such duties would not extend to the plaintiff and his companions, who had no right to be present doing what they were doing. In warning off the cyclists on 29 April Mr Keogh was doing something that I think he was entitled to do, but that did not fix him with knowledge that the cyclists would be returning on the following Sunday or with any obligation to remain within the velodrome, rather than go about his duties in Waterworth Park, to guard against the possibility that they might return, contrary to the stern warning he had given.

92   I am satisfied that Mr Keogh left the inner field and went to referee a match in Waterworth Park no later than 8am and that he did not return to the inner field after that until he had been told about the collision. Thus he did not see the cyclists on 6 May and had no reason to believe that they were present.

93   The plaintiff’s case against Mr Keogh really assumes that he knew or ought to have known about the presence of the cyclists and ought to have exercised some control over the whole of the stadium, including the cycle track. Mr Keogh’s permission was restricted to the use of the inner field and such other use of the premises as was incidental thereto, but gave him no right to exercise general dominion over the cycle track.

94   I am satisfied that there was no negligence on the part of Mr Keogh in assigning a football match to the inner field. There was no negligence in his not remaining and watching over the game. He could not be said to be negligent in failing to call off the football match when the cyclists insisted on using the track, for he did not know of their presence. As I have already concluded, the failure to require or warn Mr Benedet or others to use the tunnel and the failure to prevent persons including Mr Benedet from crossing the track, if failure it was, has no causal connection with any injury suffered by the plaintiff, since Mr Benedet was not attempting to cross the track.

95   In the circumstances the plaintiff’s claim against the second defendant fails.

The case against the Touch Association

96   The plaintiff particularises his claim against the Touch Association in much the same way as I have summarised against Mr Keogh. In addition it is pleaded that the Touch Association wrongfully gave access keys to Mr Keogh and allowed him to use the inner field.

97   The case against the Touch Association is based upon a number of misconceptions. The Touch Association occupied only the portion of the grandstand let to it by the Council and had the right to occupy only that portion of the premises and such other portions as were necessary for it to gain access to it. It had no right to occupy the inner field or the cycle track or control any activity that went on in those parts of the stadium. It had no responsibility for holding football matches and played no part in organising the matches with which Mr Keogh was concerned. The Touch Association was not carrying on any activity at the velodrome on 6 May 1990, and could not therefore be fixed with any obligation to control events there.

98   Notwithstanding the submissions of the plaintiff and the Council, I am not satisfied that the Council delegated to the Touch Association any responsibility to manage the use of the stadium on 6 May 1990.

99   There was no evidence that the Touch Association provided Mr Keogh with a key to the premises.

100   The plaintiff’s claim against the Touch Association fails.

The case against Mrs Benedet

101   The plaintiff particularises his claim against the estate of Mr Benedet in the following manner -

(a) failing to keep a proper lookout;

(b) failing to warn the plaintiff of his existence on the bicycle track;

(c) failing to keep off the cycling track while it was being used by bicycle riders at speed;

(d) failing to proceed from the centre field of the velodrome to the grandstand via the tunnel provided; and

(e) failing to keep out of the way of the cyclists including the plaintiff.

102   Particular (d) fails because Mr Benedet was not crossing the track. The question arises, however, whether his estate should be held responsible for the consequences of what he did in all the circumstances.

103   Mr Benedet must have been on the inner field for at least half an hour before the collision. He had spent some parts of that period time playing football and others waiting as a substitute on the sideline and watching the play. During such time his attention would have been wholly or principally engaged on the play. After the first half of the match came to an end, he was engaged in conversation with at least one other player. Even so, he probably realised the presence of the cyclists on the track. They had been engaged in their warm up for about ten minutes - they were probably on about the twentieth lap and were lapping once every twenty-five seconds or so. The cyclists were going very fast, however, and gave no warning of their approach. Their cycles made no more noise than was made by the air they displaced. It is impossible to find how much time elapsed between Mr Benedet’s standing beside the track, moving onto it and then being hit, but it must have been very short. Whilst he was undoubtedly careless and inattentive, therefore, it is proper I think to regard his carelessness and inattentiveness as momentary. Immediately before he moved onto the track he appears to have been either standing facing away from the track or walking slowly backwards towards it. I think that he was not intent on moving in any particular direction or for any particular purpose and that he did not realise how close he was to the cycle track.

104   Having regard to the proximity in which events outside his control had placed him to the track and the speed with which the collision took place, one incident of which was the impracticality of Mr Trudget’s warning and the impossibility of Mr Benedet’s avoiding the collision, I think that he ought not to be held responsible for the collision or its consequences.

105   The plaintiff’s claim against his estate also fails.

Damages

106   The plaintiff claims to have been very badly affected by the collision. He puts his case this way. He fell onto the track and came to rest on the grass. He lost consciousness for a few minutes. When he came to he found himself lying near Mr Benedet, who was unconscious, bleeding profusely and having difficulty breathing. The plaintiff suffered some injuries. He grazed an arm and had a sore knee and hip and a bad headache. His neck and back were sore. He got up and walked to the top of the track. Mr Taylor, who had returned in the meantime to the velodrome, took him home. His headache had gone the next day. Within a day or so he attended the Cumberland Institute of Sport for physiotherapy and after a few weeks recovered from his physical injuries. However, he was having difficulty sleeping, a thing that had not previously troubled him, and always felt tired. He was having nightmares and shaking all the time. He had a bad dream every night or almost every night in which the subjects were violent and bloody. The frequency of those nightmares did not decline between June 1990 and November 1999, when he gave his evidence.

107   He became terribly depressed at the thought of Mr Benedet’s death and suffered frequent panic attacks. It was scarcely possible to communicate with him because he cried whenever he was spoken to. He was given counselling, which had been arranged by officials at the Coroner’s Court. He would not talk about the incident to anyone, even Mr Taylor.

108   Between two weeks and one month after the collision he went to the railway station and put his head on the tracks. He was frightened by a train coming in the opposite direction and abandoned the attempt at suicide.

109   He found himself unable to remain in any place where there were a lot of people and consequently saw less of his friends. He became more irritable and on occasions punched the wall or the window. On one occasion he punched Mr Taylor.

110   Although the plaintiff had substantial academic potential, he was underachieving in high school before the collision because of his love for cycling and the time he was devoting to it. After the collision his capacity to concentrate on homework was almost negligible. His parents tried in vain in get him to study. He completed the higher school certificate in 1990 and gained a Tertiary Entrance Rank of 41.3. But for the collision he would have done significantly better.

111   He enrolled at Charles Sturt University, Wagga Wagga, in a course which would have led to an associate diploma of applied science in viticulture. He arrived there in February and stayed with cycling friends of Mr Taylor’s in Wagga Wagga. He was drinking to excess because of the effects of the collision upon him: the nightmares and thoughts of death, blood and violence and the increased incidence of panic attacks. He used marijuana. He satisfactorily completed one subject but failed the others. He left in March. In September he applied to withdraw from another subject on the ground of what was called serious misadventure, saying that he had suffered from an asthma attack. He began studying at home but fell behind because the panic attacks were continuing and he was still drinking to excess. His application to withdraw from the subject was refused and he was registered as having failed. In the same month Mr Taylor persuaded him to withdraw from the course sent him to work on a property he had purchased in the Hunter Valley on which he intended to grow wine grapes. In October the applicant applied to withdraw from his studies at the university, stating that if he continued in the course he might lose his job.

112   The university excluded him as a student and he appealed. In February 1992 he was told that his appeal had been upheld and he was re-enrolled on probation. He attended the university for one or two weeks in July 1992.

113 At about the same time he was accepted into a traineeship in viticulture and entered a course at Kurri Kurri TAFE. He withdrew from his course at Charles Sturt University for that purpose and finished the TAFE course in May 1993. He completed a period of on-job training and obtained a certificate under the Industrial and Commercial Training Act to the effect that he had reached the required standard in Rural Operations.

114   The plaintiff remained living and ostensibly working on his father’s property but continued to be unable to cope. He continued to drink heavily. He was afraid to sleep because of nightmares. He stayed up late, and became tired and unable to work.

115   He joined the local bushfire brigade. During 1993 there was an occasion when he was called out to attend an emergency and he came upon the scene of a murder. He was so upset that he drank heavily and attempted suicide by shooting. During 1994 or 1995 his father took a shotgun from him when he threatened to harm himself.

116   During 1994 Mr Taylor was experiencing financial difficulties and asked him to return to Sydney. He did so and took a job at St Vincent’s Hospital. However, he left the job after six months for fear of having to attend the mortuary.

117   The plaintiff attempted to ride a bicycle again after the collision but found that he was shaky and very uncomfortable. Mr Taylor and another cycling colleague persuaded Mr Lionel Cox, a former Olympic cyclist who had coached the plaintiff in 1989, to devise routines and exercises for him. However, although he tried for about six to eight months, he was never able to reach the standard he had previously held. He has not ridden competitively since the collision and any aim he had of being a professional cyclist has now been abandoned.

118   The plaintiff’s most recent job was on the sales staff of a retail rural business. He lasted there only a couple of weeks and left because he suffered a panic attack.

119   His case is that he is unemployable and that but for the collision he would have earned wages appropriate to a viticulturist.

120   It is the plaintiff’s case that he is affected by three independent conditions. The first is that he is prone to suffer from panic attacks. The second is that he is epileptic and that his seizures have been made worse by the collision. The third is that he has a post traumatic stress disorder, or an adjustment order with depressed and anxious mood.

121   The plaintiff maintained a distinction in his evidence between epileptic activity and panic attacks. He said that since the collision he had suffered panic attacks at an average rate of two per week, compared to a handful per year before the collision. Before the collision he did not suffer nightmares. After the collision he had a nightmare every night.

122   In order to understand what effect if any the collision has had upon the plaintiff it is necessary to enquire into his pre-accident history and to gain some idea of what his course of development might have entailed but for the collision. That will require consideration of his state of health at the time of the collision.

123   The plaintiff suffered a number of symptoms during childhood which attracted medical intervention. He began suffering asthma before he was four years old. He is reported to have been shy, and as having had temper tantrums. He feared going to sleep. He was said to suffer from attention deficit syndrome and was prescribed a diet which excluded preservatives, flavours and colourings. He did not fare badly at school, however, and was only occasionally reported for misbehaviour. During 1981, when he was eight and a half years old, psychological tests were carried out, showing that his IQ was in the high average to above average range. It does not appear why it was necessary for those tests to be done.

124   There were tensions in the family in which he grew up. Mr and Mrs Taylor were both practising psychologists. Both did professional work at the college which the plaintiff attended upon his entry into high school. The plaintiff’s maternal grandmother was by all accounts a difficult person and called him evil. His mother called him naughty and uncontrollable. His parents had serious disagreements which manifested themselves in the presence of the plaintiff and his sisters and which eventually resulted in the marriage coming to an end in an unpleasant way in the early 1990s. His mother attempted or threatened to commit suicide on a number of occasions in the presence of members of the family, including the plaintiff. The plaintiff believed at the time that his mother was serious. She accused Mr Taylor of having had an affair with a patient. Mr Taylor later told the plaintiff that the marriage had been over for sixteen years and that his mother had had an affair with a Christian brother at the plaintiff’s college. These events must, I think, have had a significant effect on a young man who had already manifested fragility of temperament and health sufficient to justify his being referred to a number of medical practitioners.

125   During his study, training and the practice of his profession, Mr Taylor had come to know a number of medical and other practitioners specialising in various disciplines. He was understandably very concerned about the health of the plaintiff and I think that it must have been he who saw to it that the plaintiff was seen professionally by a substantial number of such practitioners over the years. Among others, the plaintiff was referred to a series of neurologists and psychiatrists.

126   When he was ten or eleven years old the plaintiff began to experience what came to be called panic attacks. They do not seem to have been precipitated by any particular event. His hands would begin to shake and his heart rate would increase. He would hyperventilate. There was no loss of consciousness.

127   During 1985 the plaintiff entered Year 7 in high school. During the school holidays, when he was twelve years old, he suffered a nasty collision. He lost control of his bicycle at sixty kilometres per hour and ran into a rock face.

128   The plaintiff’s shaking, hyperventilating attacks continued. An electroencephalogram carried out during 1985 showed epileptic activity, though Dr Corbett, neurologist, thought that the plaintiff’s symptoms were likely to prove to be due to a combination of anxiety attacks and hyperventilation. At least part of the reason for Dr Corbett’s opinion appears to have been that the plaintiff was able to continue cycling during these attacks.

129   On 17 February 1986 the plaintiff had what was described as an episode and was late for school. A week later another EEG was carried out and there was, according to Dr Corbett, no suggestion of epilepsy. By the following month the hyperventilation attacks had ceased.

130   In January or February 1987 the plaintiff experienced shaking prior to the commencement of a championship race at the velodrome. He recovered and took part in the race.

131   In March 1987 Dr Surgeon, the plaintiff’s general practitioner, referred him to Dr Hansen, psychiatrist, who remarked on the plaintiff’s mother’s phobic anxiety with panic and observed that that might be a familial disorder. He mentioned that the plaintiff had a mild degree of dyslexia and that that “as well as a few difficulties” had set him back at school. He thought the plaintiff ambitious in the work he was undertaking and noted that a recent cycling accident of Mr Taylor’s seemed to have triggered an exacerbation of the plaintiff’s panic disorder.

132   In August 1987 the plaintiff was found in the toilet, with his pants down. The significance of that is that the plaintiff has told practitioners that one of the feelings he has with the onset of an episode of shaking is of a need to empty his bowels. He was shaking and saliva and blood were coming from the mouth. Presumably he had bitten his tongue. He was initially incoherent and confused and a had a lump on the head. He was referred to Dr Terenty, neurologist, who thought that he had had an unequivocal generalised epileptic seizure and commenced him on Tegretol.

133   In July 1988 the plaintiff’s general practitioner, Dr Surgeon, noted that he had suffered drowsiness and dizziness off and on for five weeks, but thought that that might have been due to the Tegretol.

134   Dr Terenty saw the plaintiff again in August 1988. His EEG showed bilateral spike and wave complexes and sharp wave activity in the right frontal region. She felt that the shaking turns might be epileptic.

135   She saw him again in February 1989. He had been under stress in the preceding week because of his selection for the National Cycling trials and because of some disagreements at home and he told Dr Terenty that his behaviour had been abnormal in a way he was not able to define well. He had awoken that morning with a twitching of his body and felt anxious and slightly nauseated. His parents had given him Valium orally but that had produced no effect. He had been admitted to hospital and had suffered an epileptic attack lasting seventeen hours.

136   On examination he was anxious and “rather inaccessible”. He had tachycardia and there was a fine twitching that shifted from side to side. An EEG showed almost continuous generalised fast spike and wave activity and Dr Terenty and her neurologist partner Dr Cant agreed that this indicated that he was in petit mal status. He was given intravenous Valium and his twitching stopped and the epileptiform activity disappeared from the EEG. When he awoke the next morning his symptoms had abated and his EEG was normal. He was commenced on Epilim. Dr Terenty thought it possible that there had been a severe panic attack which had induced hyperventilation which had precipitated petit mal status.

137   In a letter to Dr Surgeon written on 27 February 1989 Dr Cant said that it was apparent that psychological factors were playing a significant role in the control of the plaintiff’s epilepsy and that that had been discussed with his parents.

138   The plaintiff continued generally under the care of Dr Terenty or Dr Cant and continued to take Epilim. Dr Cant wrote on 24 August 1989 that he had been free of all seizures since the one of February that year.

139   The plaintiff wanted to obtain a driver’s licence but Dr Cant advised him to wait at least a year.

140   Notes of Dr Surgeon, probably made in about January 1990, record that up to that time the plaintiff had suffered four falls from his bicycle during road work but that the plaintiff did not think that he had lost consciousness in any of them.

141   Between 1990 and 1994 the plaintiff continued on Epilim. For most of the time he was living on Mr Taylor’s farm. I am satisfied that he was drinking heavily during that time, one result of which was that his epilepsy was poorly controlled. Not surprisingly, he suffered epileptic symptoms, including one apparently serious seizure in April 1993.

142   In March 1994 Dr Barclay, psychiatrist, saw the plaintiff at Mr Taylor’s request. In July Dr Barclay referred him to Dr Warren Kidson, an endocrinologist, who noted his long history of complex epilepsy and that he had been off alcohol for eight months. He concluded after tests that the plaintiff had mild diabetes with reactive hypoglycaemia. The plaintiff was grossly overweight at one hundred and seventeen kilograms.

143   In August 1994 the plaintiff started seeing Dr Robert Hampshire, psychiatrist. Dr Hampshire diagnosed his epileptic episodes as panic attacks and took him off Epilim. He treated him with Valium regularly and with EMDR.

144   The plaintiff took an overdose of Valium whilst under Dr Hampshire’s treatment. In October 1994, having returned to Mr Taylor’s farm, he went to Singleton hospital with his old symptoms, including shaking. In December 1994 he was taken to the same hospital with a panic attack and there suffered a major tonic/clonic seizure with loss of consciousness.

145   In January 1995 he began seeing Dr Kevin Vaughan, psychiatrist, and spoke about severe episodes of intense discomfort, characterised by sudden palpitations and shaking in arms and legs, associated with feelings through his body “like an electric shock”. He was getting these feelings up to ten times a day. He complained of nightmares as well.

146   On 9 February 1995 Dr O’Sullivan saw the plaintiff and thought it unlikely that he had true epilepsy. He thought the history more consistent with panic attacks.

147   Early in 1995 the plaintiff began riding a motorcycle.

148   In March 1995 Dr Terenty again put the plaintiff on Epilim and expressed the view that there was no doubt that the plaintiff had epilepsy.

149   In March 1995 the plaintiff was admitted to Hornsby hospital having punched through a glass window after an argument.

150   In May 1995 the plaintiff was taken to Hornsby hospital after “fitting”. Mr Taylor told staff that he had drunk three-quarters of a bottle of vodka. The seizures were described as “generalised” with tremors in all limbs and eyes rolling back, followed by stiffness.

151   In August 1995 the plaintiff was admitted to Hornsby hospital and was discharged following forty-eight hours of acute anxiety, pulling his hair, pinching himself and being generally greatly distressed. The only trigger that could be identified was his having ceased smoking three days earlier.

152   By February 1996 the plaintiff was still complaining to Dr Vaughan of periods of anxiety, but said that his distressing dreams had become less intense. Dr Vaughan thought that the plaintiff had suffered from post traumatic stress disorder but that treatment and antidepressant medication had improved him to the extent that he no longer satisfied the criteria for that diagnosis.

153   In June 1996 the plaintiff consulted another psychiatrist, Dr Canaris, and gave a history and range of symptoms, including descriptions of flashbacks and episodes of the same anxiety and dissociation. In September 1996 Dr Canaris recorded the recurrence of nightmares and depressed mood. The plaintiff was then under pressure from his father about his performance in the vineyard and was subject to the additional stress which his forthcoming marriage had placed upon him. Dr Canaris noted marked mood swings.

154   He last saw the plaintiff in October 1996 after he had been on his honeymoon. He was again becoming anxious and depressed, with episodes of flashbacks and unpleasant thoughts and Dr Canaris formed the view that the major stressor was the approaching litigation. The plaintiff was facing the prospect of not only of this case but was being sued by Mr Benedet’s family.

155   Dr Canaris was of the firm view that the plaintiff had post traumatic stress disorder and thought that the mood swings were characteristic of that disorder.

156   The plaintiff has been treated by a psychologist, Dr Walker, since April 1996. Dr Walker is acquainted with the plaintiff’s parents and first saw him, I think, at the request of Mr Taylor. She has seen him once per month or more frequently ever since April 1996, in sessions ranging between one and one and a half hours. She has administered psychological tests. She has treated the plaintiff with hypnosis. She has made extensive notes of their conversations.

157   She said that in April 1996 the plaintiff fulfilled all the criteria for post traumatic stress disorder. She thought that the plaintiff was also suffering from panic disorder, and that was the problem she first addressed in therapy. He was concurrently suffering major depression with sporadic very strong suicidal impulse.

158   In a report dated 27 October 1997 Dr Walker expressed the opinion that the plaintiff had shown significant improvement, though he still experienced some of the symptoms of post traumatic stress disorder when confronting the prospect of the court hearing. She thought that although he had made significant headway he still suffered significant vulnerability, depression and panic proneness as a direct result of the collision.

159   When the plaintiff commenced this action in 1998 the latest neurological opinion was that of Dr O’Sullivan, who had seen and advised the plaintiff from 1995 onwards. He was aware that the opinion had been expressed that the plaintiff had epilepsy but concluded after further investigations and assessment that he did not. In a report of 29 April 1997 he expressed that conclusion to have been confirmed by the fact that the plaintiff was not on anti-convulsants, had had no turns and that his panic attacks were being controlled by drugs not ordinarily administered for epilepsy.

160   Dr Walker has always held the view that the plaintiff has suffered from epilepsy, having witnessed him during a major seizure. She is also of the view, however, that the shaking which affects the plaintiff on more frequent occasions is not epileptic in origin but is associated with high levels of anxiety. She and the plaintiff agree that the occasions of that shaking may properly be called panic attacks.

161   According to Dr Walker, the plaintiff’s anxiety levels and frequency of panic attacks increased during the second half of 1998. The approach of his court case contributed. His drinking continued.

162   In December there was a fight at his wife’s parents’ house and she left him. She obtained an Apprehended Violence Order. He decided to commit suicide and told Dr Walker so on the telephone. Dr Walker managed to have a message sent to Mr Taylor and police and an ambulance were sent to the plaintiff. He was admitted to Maitland hospital overnight, having apparently overdosed on Xanax and alcohol. He was allowed to leave on the following day but again became very drunk. Somehow the house on the Hunter Valley property burned down. Again the plaintiff was admitted to Maitland hospital and during the next five days underwent numerous seizures. Their precipitation was put down to withdrawal from Valium and alcohol.

163   The plaintiff attended Dr Walker’s rooms at the end of January 1999, suffering what she called panic attacks. Whilst Dr Walker was out of the room for a moment the plaintiff fitted and was found semi-conscious under a table. Dr Walker doubted the correctness of the diagnosis made at Maitland and observed that the plaintiff’s drinking was sporadic rather than continuous.

164   Dr Walker’s opinion is that the plaintiff suffers from post traumatic stress disorder and has suffered variable depression, at times severe with strong suicidal impulse, panic disorder and epilepsy. She draws attention to the seriousness of the collision itself and to the plaintiff’s feelings of fear, helplessness and horror on regaining consciousness, to the recurrent recollections with dissociative symptoms, disturbing dreams, distress at recurring memories and reminders, to his persistent avoidance of stimulated associated with trauma, particularly his resistance to treatment, his inability to express loving feelings, his low libido and his feeling of having no personal future, to his difficulty in sleeping and to the long time the symptoms have persisted since the collision.

165   Dr Andrew Bleasel, a neurologist specialising in epilepsy, saw the plaintiff for treatment in December 1998. The plaintiff told him that since the collision his panic attacks had become worse and that there were two types. The new one was associated with confusion and lasted for some hours or days, always ending with a generalised convulsive seizure and loss of consciousness. He suffered two or three of those attacks per year. The usual type of attack, without confusion, continued to occur weekly. The EEG confirmed a non-convulsive status epilepticus with a right frontal prominence of the epileptiform activity. The plaintiff improved on Valium and Dilantin. It was not clear to Dr Bleasel or to his colleague Dr Schultze whether the longstanding panic attacks also represented partial seizures or whether they were a symptom of an independent psychiatric disorder.

166   A further EEG was done on 23 March 1999. There was bi-frontal epileptiform activity but no sign of the non-convulsive status seen in the previous EEG. Dr Bleasel diagnosed frontal lobe epilepsy, with the possibility of a partially treated idiopathic generalised epilepsy.

167   In a report of 17 April 1999 Dr Bleasel recorded that he had again seen the plaintiff on that day. He had not had any of his typical “panic attacks” but over the past two months had experienced what he described as the beginning of a panic attack. He had a sense of his heart beating and of a desire to open his bowels but it did not progress further and disappeared. Dr Bleasel came to the view that it was likely that the plaintiff had frontal lobe epilepsy, which had begun in adolescence, and that the so-called “panic attacks” were in fact frontal lobe seizures. Their duration was an unusual feature, but since Dr Bleasel had recorded an episode of non-convulsive status epilepticus he thought it possible that the prolonged episodes reported by the plaintiff were in fact the same thing.

168   Dr Bleasel was unsure why they should have become worse after the collision. He thought it intriguing. It was possible, he said, that the plaintiff had suffered some minor head trauma that had worsened the epilepsy. Another possibility was that his excessive alcohol consumption in the months and years following the accident had worsened the control of his seizures.

169   Dr Bleasel thinks that the plaintiff had had epilepsy since the age of eleven or twelve and that the chances of a remission to a point where he no longer needed to take medicine was extremely unlikely. He thinks that the chances of the plaintiff’s becoming seizure-free was relatively small, less than ten or twenty per cent, and that the plaintiff would probably require different medications. He thinks that reduction in stress and an abstinence from alcohol might lead to a fifty per cent chance of improvement. It is possible that the incidence of attacks might increase with sleep deprivation, stress or overindulgence in alcohol. He observes that the plaintiff has quite an unusual epilepsy to be mistaken as panic attacks. These manifestations that have been so described could, he said, go on for some days without ending in a convulsion. They seem to last hours in a day.

170   Dr Bleasel was asked about the opinion of Dr Terenty that a panic attack might have induced hyperventilation which in turn led to petit mal status. Dr Bleasel disagreed with that reasoning and suggested that there was one problem only, that of epilepsy. The panic attacks had been misdiagnosed as panic attacks and were epileptic seizures. However, he conceded that it was possible for an anxiety attack and an epileptic seizure to happen at the same time.

171   Dr O’Sullivan has changed his opinion and now agrees with Dr Bleasel.

172   I think that the opinions of Dr Bleasel and Dr O’Sullivan should be preferred to that of Dr Walker. I am satisfied that the plaintiff has been epileptic from the age of ten or eleven years and that the symptoms of periodic or occasional attacks which I have summarised, including those which he calls “panic attacks”, result from his frontal lobe epilepsy.

173   The plaintiff asserts that he has been and will continue to be more seriously affected by his epileptic condition because of the direct and indirect effects of the collision upon him. Dr Bleasel and the other neurological experts who have given evidence appear to agree that stress which leads to sleep deprivation will in turn lead to an increased susceptibility to epileptic seizures and that alcohol taken in excess may inhibit the effect of anti-convulsive drugs and render the patient likely to an increased frequency of seizures. Head injury might have the same effect.

174   It is the plaintiff’s case that his epilepsy has been worse since the collision for these reasons. His grand mal seizures have been few in number and are well documented. The difficulty lies in knowing whether the lesser seizures, during any of which the plaintiff would have remained conscious and able to function to some degree, have increased in frequency.

175   It was put on behalf of the defendants that the plaintiff had exaggerated his symptoms. The case was put by counsel for Mr Keogh and the Touch Association in the following passage of cross-examination of Dr Walker, the psychologist who has been treating the plaintiff since 1996 -

Q. Isn’t it a most reasonable analysis of what has happened to the plaintiff that following the accident he has gone along satisfactorily from 1990 through until sometime in the latter half of 1994 and then has been taken off Epilim by Dr Hampshire and having ceased anti-epileptic medications, has succumbed again to the effects of that disease and that his subsequent anxiety and distress are associated with that mistreatment of his underlying organic problem?
A. The problem is that I thought the history didn’t show that he coped adequately after leaving school.
Q. When you refer to the history for that, Doctor, you are talking about what he told you?
A. What he told me yes.
Q. As recorded in those notes?
A. Yes, that’s right.

176   The reference to “those notes” is to extensive notes taken by Dr Walker during many consultations with the plaintiff.

177   Dr Bleasel refers to the plaintiff’s “panic attacks” as a prodrome, an epileptic stupor which, notwithstanding the suggestion in the name itself, may not lead on to any other form of epileptic activity. Symptoms often stop there. There is no objective sign by which the frequency of occurrence of such epileptic activity can be measured. None of the expert witnesses has been in a position to observe the plaintiff for long enough to draw any conclusion about that. The evidence for increased frequency comes only from the plaintiff himself and, to a more limited extent, from Mr Taylor.

178   The plaintiff was attacked as being an unreliable witness. It was put that following the treatment of the plaintiff by Dr Terenty and Dr Cant in 1989 and the administration of Tegretol and then Epilim it was quite obvious to the plaintiff and Mr Taylor that the plaintiff was suffering from and was being treated for epilepsy. Yet, it was submitted, the plaintiff had been at pains to put across to experts who were likely to give evidence that there was some doubt about that. According to Dr Westmore, a psychiatrist called on his behalf, the plaintiff told him that in October 1999 that epilepsy had only recently been diagnosed. The plaintiff’s explanation was to say that what he had said to Dr Westmore was that it had only recently been confirmed, leaving the impression that Dr Westmore had made a mistake. It will be recalled, however, that the plaintiff personally has always believed that his panic attacks are not epileptic in origin.

179   It was submitted that, against Dr Cant’s advice, the plaintiff had applied for a learner driver’s permit. Records produced by the Roads and Traffic Authority show that a learner’s permit was issued to the plaintiff on 1 June 1990 and that a provisional licence was issued on 2 July 1990. An unrestricted licence followed on 4 June 1991. The plaintiff was asked about this and said that Dr Surgeon had given him a letter to give to the Authority. The records of the Authority were produced to the Court on subpoena but no letter was contained in or referred to in them. The first mention in the records of epilepsy is an entry on 14 May 1991. The first mention of any nervous disorder is on 26 September 1994.

180   It was put that the plaintiff had not been frank with the authorities at Charles Sturt University. When applying to withdraw from a subject in September 1991 he said that he had suffered from an asthma attack. In fact that was not the reason at all and, as he told Dr Walker, he had been drinking excessively during his time in Wagga Wagga. His father had removed him from the university at the end of the first term, having travelled to Wagga and found him drunk, having vomited into a bucket in his room. It was put that his use of alcohol had not materially changed during the intervening months and it was not because of asthma but because of the plaintiff’s continued excessive use of alcohol that he desired to withdraw from the subject again in September.

181   Secondly, in October 1991 he wrote a letter to the university stating that he had been requested by his employer to withdraw from his then current study of viticulture because the work on the vineyard had become rather intense and that he was needed to work, and that if he could not do so his job would be terminated. That, it was submitted, was untrue.

182   It was submitted that there was a conflict between the evidence of the plaintiff and Mr Taylor about the reason why the plaintiff returned to Sydney from his work at the vineyard. The plaintiff told the Court that it was because Mr Taylor was in financial difficulties whereas Mr Taylor said that the plaintiff could not do the work.

183   Then it was submitted that the plaintiff had failed to seek treatment following the asserted dramatic increase in the incidence of attacks. It was pointed out that there was no remarkable seizure until the plaintiff was taken off Epilim in 1994.

184   A letter was written by Dr Surgeon on 29 October 1990, stating that the plaintiff had been under Dr Surgeon’s care for five years and referring to the collision on 6 May 1990. It said that since then the plaintiff had refused to talk to his family about the incident and had refused all professional counselling offers. His relationships at home and school had suffered severely and that that would certainly have greatly affected his ability to study and to do his higher school certificate. The letter concluded with the observation that the fact that the plaintiff could not bring himself to talk about the matter underlined the distress it had caused him.

185   It was submitted that the remarkable omission from the letter was any mention of increased frequency of shaking attacks. Neither was there any mention of symptoms of anxiety or of panic attacks in Dr Surgeon’s notes from July to December 1990.

186   On 2 November 1990 Mr Khoury, the Year 12 co-ordinator of the plaintiff’s college, wrote -

Earlier in the year I was informed by Roy’s father that Roy was involved in an accident while on his bicycle and that a man died. Since that accident, in my capacity as Year 12 co-ordinator, I have observed a change in Roy’s overall manner. Immediately following the accident, Roy was visibly quiet and withdrawn. He became unusually inactive and did not involve himself a great deal in classroom or discussion. He seemed lethargic and disinterested (sic).
There has been some progress and improvement in Roy’s attitude in the past months. However, I have no doubt that his studies and his overall academic development were greatly disadvantaged by the bicycle accident. This is compounded by the fact that Roy is a competitive cyclist and loves the sport. He has been adversely affected both academically and socially.

187   The implied criticism was that the omission from that report of any mention of shaking was remarkable.

188   Mr Taylor was asked about the condition of the plaintiff after the collision. He said that he screamed and had bad nightmares every night and could not talk about the accident. He rejected the idea of treatment. He tried to avoid sleep and was always tired. Mr Taylor was asked how often after the accident he would see the plaintiff with an anxiety attack, as it was termed, and said that such attacks were ten times as frequent as before, were very much more severe and would last longer. One would occasionally run into another. He said that by two or three months after the collision it seemed as though they were happening almost every week.

189   It was submitted on behalf of the defendants that Mr Taylor should not be accepted in this evidence.

190   Of course, the plaintiff has an interest in exaggerating his symptoms, and I think that some of the criticisms of him that I have summarised show that he is not always truthful in describing important events and may be inaccurate. I am not prepared to accept on his evidence alone that the panic attacks, which I think are epileptic in origin, occur as frequently or last as long or are as debilitating as he would have the Court accept. On the other hand, I think that the evidence of Mr Taylor is reliable in this respect. I am satisfied on his evidence that there was a substantial increase in the incidence of shaking and in the intensity and duration of attacks after the collision.

191   I do not think that the plaintiff’s fall can itself account for the increase in epileptic symptoms. It is said that after he fell to the track he lay unconscious for about ten minutes, but all the accounts of the period of unconsciousness come from medical reports, which must in turn have derived from whatever the plaintiff himself said about the matter. He cannot have known how long he was unconscious and must have been relying on what somebody else told him. When he came to, the plaintiff began, with help, to walk on the track and although he complained of a bad headache his main concern was to get his sore muscles moving again. When his father returned he did not complain of head injury. He had been wearing a helmet, of course. As a trained psychologist having a detailed knowledge of the plaintiff’s medical history, including Dr Terenty’s diagnosis of epilepsy and prescription of anti-convulsant drugs, Mr Taylor would, I think, have been alert for signs of head injury and any possible epileptic signs. In deciding to take the plaintiff home rather than to hospital he must have had no concerns in that regard. This may be said with some confidence in view of the readiness with which Mr Taylor has been prepared over the years to refer the plaintiff to medical practitioners when appropriate. In view of this and in the absence of evidence of head injury or of unconsciousness for any substantial period I think it unlikely that head trauma had any part to play in the exacerbation of epileptic symptoms.

192   I accept the evidence of Mr Taylor that for a substantial time after the collision the plaintiff slept badly, either because he stayed awake so as to avoid nightmares or because he was woken by them, and I think that such a serious interference with his sleep must have led to increased frequency, intensity and duration of his epileptic seizures. However, I do not think that those effects of the collision have lasted indefinitely. I find it difficult to accept the plaintiff’s evidence that the frequency of his nightmares has not declined in the ten years since the collision. Although he may well still have nightmares, I do not think that after this length of time they can be attributed to the collision. The plaintiff’s pre-accident history shows that from an early age he suffered indifferent health and was subject to psychological upsets. For reasons which I shall explain, I think that the various effects of the collision on the plaintiff have by now been subsumed by the effects of other events and activities in the life of the plaintiff.

193   The management of the plaintiff’s epilepsy has been attended by a number of difficulties, first because his symptoms are so unusual that for some time treating practitioners doubted whether the plaintiff was epileptic. An important feature of the plaintiff’s medical history has been the recurrence or exacerbation of what are now known to be epileptic symptoms under the influence of temporary stress. After he was put onto Tegretol he continued to experience epileptic symptoms under the stresses of his forthcoming selection for the National Cycling trials and of the unpleasant atmosphere at home.

194   After the collision but before sitting for the Higher School Certificate the plaintiff began to drink alcohol to excess. Since then he has regularly resorted to the abuse of alcohol. On some occasions his drinking has been a reaction to the stress he has been under, but there is no reason to think that that is the only reason why he drinks to excess, and I think that he is prone to the overuse of alcohol independently of stress. I do not think, however, that his use of marijuana at Wagga Wagga was significant.

195   There is no doubt that the plaintiff was badly affected by the collision. The very fact that he could not seriously apply himself again to cycling demonstrates that. I accept that the collision was responsible for the exacerbation of the plaintiff’s epileptic symptoms in that the plaintiff responded by drinking to excess, so inhibiting effects of the anti-convulsive drugs he was taking, but I think that that effect, like the deprivation of sleep, has by now run its course.

196   Because of his fragile personality the plaintiff was liable to react badly to stress. It seems possible that stress produced whatever symptoms caused Mr Taylor to have the plaintiff seen by medical specialists when he was very young. The stress of imminent trials, selection and races was likely to exacerbate his symptoms. I do not doubt that the approach of the higher school certificate examinations would have had the same effect.

197   Since the collision there have been numerous substantial occasions of stress. The plaintiff has responded by resorting to the use of alcohol and, whether because of its effects upon his drug regime or because he was deprived of sleep or for other reasons, he suffered epileptic symptoms of the greater or the lesser kind. Whilst he was living in the Hunter Valley from June 1991 onwards he made two and perhaps three suicide attempts in response to stressful situations. He was concerned when police executed a search warrant at the vineyard, suggesting some impropriety on the part of Mr Taylor. His parents’ marriage came to a bitter end in the early 1990s. He gave up football because of the stress of seeing a colleague injured in a tackle.

198   He married in September 1996. He was still drinking and trying to hide the fact from his wife. He continued to drink to excess until the end of 1998. In April 1998 he had to be admitted to Maitland hospital having witnessed a fatal semi trailer accident. In December 1998 there was a fight at the home of his wife’s parents and his wife took out an apprehended violence order against him.

199   Individually and in combination these circumstances were serious. The plaintiff’s personality was such that they would have had the same effect upon him whether or not he had been involved in the collision.

200   A further independent exacerbation of his condition took place late in 1994 when Dr Hampshire took him off Epilim and he began to suffer grand mal seizures.

201   Dr Vaughan and Dr Canaris, who saw the plaintiff in 1995 and 1996 respectively, noted a history of periodic nightmares, anxiety, depression and mood swings and considered him to be suffering from post traumatic stress disorder. However, Dr Vaughan also considered that he suffered from panic disorder, a diagnosis that must be doubted in the face of Dr Bleasel’s evidence.

202   Dr Vaughan thought that by March 1996, after treatment and anti-depressant medication, the plaintiff’s symptoms had improved to the extent that he no longer satisfied the criteria for post traumatic stress disorder. The plaintiff saw Dr Canaris, who does not appear to have been informed of the part played by Dr Vaughan or of his opinion. Dr Canaris saw the plaintiff seven times between June and October 1996. The plaintiff told him of flashbacks, visualising the deceased under his wheel and of episodes of severe anxiety and dissociation. Dr Canaris noted a recurrence of nightmares with depressed mood when he saw him again at the end of September 1996. That had occurred in the context of some pressure from Mr Taylor, whose expectations the plaintiff was having trouble in meeting. There was the additional stress of the plaintiff’s impending marriage. Dr Canaris came to the view that he was suffering from post traumatic stress disorder.

203   Dr Westmore, psychiatrist, has not treated the plaintiff but has provided reports for the Court and has given evidence. He was supplied with a copy of Dr Walker’s report in which she stated that she had been treating the plaintiff for chronic post traumatic stress disorder, depression and panic disorder. Dr Walker considers the post traumatic stress disorder chronic and is not confident about the prognosis for his other conditions. She observes that they continue despite anti-depressant and anti-epileptic medication and the fact that the plaintiff has given up benzodiazapines and alcohol, substances proved by experience to exacerbate his symptoms.

204   Dr Westmore is of the view that the plaintiff’s problems were becoming worse and observed what to him appeared to be a progressive decline in his level of functioning, psychologically, socially and occupationally.

205   He believes that the plaintiff suffered an adjustment disorder with depression and anxiety as a result of the collision and that that disorder has in turn adversely affected his marriage, his family relationships, his career and his abuse of alcohol. He thought that although there might be some genetic vulnerability to misuse of drugs and alcohol it was more likely that the plaintiff’s depression was linked to his alcohol and drug abuse.

206   Two very extensive reports were written by Dr Smith, psychiatrist, who gave evidence on behalf of the Council. Dr Smith conducted a wide ranging review of the many medical reports and notes and his principal concern appears to have been to gather evidence and draw conclusions as to the lack of candour of the plaintiff, resulting in a tentative conclusion that he was feigning his symptoms, rather than to offer a psychiatric diagnosis based upon assumed facts. I am ultimately unable to place much weight on Dr Smith’s opinion because I disagree with his contention that by and large the plaintiff is feigning his symptoms. The reason why he lacks reliability is that he attributes to the collision symptoms that are explicable in other ways.

207   The plaintiff has given many accounts to many medical practitioners and psychologists over many years. It would be surprising if he were universally consistent in his histories. Dr Smith gives the plaintiff no credit for the countless times he has given consistent accounts but draws attention to every occasion upon which he can find that the plaintiff has given an apparently inconsistent account. On some of those Dr Smith is mistaken. For example, he makes much of a report by Dr O’Sullivan to the effect that the plaintiff told him that he started drinking in 1989, that is, before the collision. Dr Smith places some weight on that report, because if true it would bear upon the aetiology of the plaintiff’s post-collision symptoms and might show that the plaintiff was putting forward at the hearing a version about his drinking which was false and which he knew or believed favoured his case. The plaintiff was asked about this and denied telling Dr O’Sullivan any such thing. The implication was that Dr O’Sullivan had made a simple misrecording of fact. That is what I think must have happened.

208   Dr Smith is of the view that the documentary evidence suggests that at the most the plaintiff suffered an adjustment reaction to the collision, with social withdrawal, that was resolving within six months of the event. He placed some weight on the fact that Dr Surgeon saw the plaintiff on six occasions between 27 July and 9 December 1990, yet made no mention in his notes of any anxiety symptoms, stress symptoms or panic attacks associated with any of the visits. In fact, although the notes commence in 1985 they make very little reference to shaking. A possible innocent explanation for the absence of any relevant note after May 1990 is that, as Mr Taylor says, the plaintiff was resisting all attempts to have him treated for the effects the collision was having upon him.

209   Dr Roldan, a clinical psychologist, provided a lengthy report and gave evidence also on behalf of the Council. Like Dr Smith, Dr Roldan took the view that the plaintiff was intent on distorting his history so as to play down non-compensable aspects, including pre-accident interpersonal problems at school and at home, a high level of instability within the home environment and family conflict and psychosocial disruption. The plaintiff was also intent on denying any post-accident history of unrelated stressors, such as unresolved issues about his disrupted upbringing, ongoing family conflict and other issues. He thinks that the plaintiff exhibits characteristics consistent with a diagnosis of personality disorder of the borderline type. He notes that it might be argued that that disorder may have arisen as a consequence of allegedly chronic post-traumatic stress disorder, but he doubts whether the plaintiff suffers from that disorder.

210   He thinks that a diagnosis of post traumatic stress disorder does not fully explain the plaintiff’s presentation and history and that the plaintiff is likely to have a longstanding and unrelated history of personality disorder, and that that may go a long way towards explaining his life difficulties, including, at least in part, alcohol abuse, episodic depression and suicidal gestures. He is also of the view that there is a longstanding and accident-unrelated history of frontal lobe epilepsy as well as a form of panic attacks.

211   It is not unusual to find a difference of expert opinion, but the dichotomy of view about what I might call the plaintiff’s psychological condition and the extent of any contribution to it by the collision is remarkable. I have found none of the expert witnesses in this field acceptable in every respect.

212   I am unable to accept unreservedly the opinion of Dr Walker, though she is the professional who knows the plaintiff best. The plaintiff plainly believes that all his symptoms stem from the collision and that if it had not happened he would have had a normal progression through tertiary education, leading to a satisfying life as a viticulturist and would have become a champion cyclist. Dr Walker has become convinced that the plaintiff’s view is correct. She has observed that the plaintiff was “clearly heading for Olympic standards” and that at school his grades were improving and that he had a secure concept of his future. This notwithstanding that the plaintiff told Dr Vaughan that he was struggling at school. She observed that “somewhat incredibly, Roy himself was not taken to hospital” after the collision. These statements and implications do not, I think, necessarily stand up to examination, and the impression that I have received having read Dr Walker’s reports and having seen and heard her examined and cross-examined at length is that she has to some degree made herself an advocate for the plaintiff.

213   I think that at the time of the collision the plaintiff was probably suffering from a personality disorder of the borderline type. I accept the evidence of Dr Roldan that such disorder is normally associated with inherent factors such as a dysfunctional early psychosocial environment affecting emotional and personality development and that it is known to become salient in late adolescence or early adulthood. Persons with personality disorder are known to have a lifelong pattern of emotional instability, detrimentally affecting relationships and general functioning. From his early years the plaintiff has exhibited hyperactivity and has been exposed to distressing behaviour on the part of his mother. He has also been exposed to substantial psychosocial tension and I think that the description of his family as dysfunctional is not inapt. His personality disorder may also have inherited elements, and a description of his mother’s behaviour suggests that there may be a genetic origin. It is possible also that the plaintiff’s frontal lobe epilepsy has played a role in the emergence of personality disorder.

214   I am satisfied that the plaintiff has suffered from post traumatic stress disorder and that its symptoms may have aggravated the plaintiff’s personality disorder.

215   I also think that at the time of the collision the plaintiff suffered a depressive illness which had a biological component. I think that the effect upon the plaintiff of the collision, particular the post traumatic disorder, has been to make his depression worse.

216   I think that he is still suffering from post traumatic stress disorder and depression. The post traumatic stress disorder is due to the collision. The duration and intensity of the plaintiff’s depression may also be said, though with less confidence, to have resulted from the collision.

217   The stressors which have affected the plaintiff since the collision have likewise had a significant effect upon the psychological health of the plaintiff. Most of them were unrelated to the collision and, I think, not made worse in their effect by the prior fact of the collision. I am thinking particularly about the suicide attempts, especially the recent one which followed the plaintiff’s wife’s leaving him, and a return to excessive consumption of alcohol.

218   If the collision had not occurred, the plaintiff would now be in better psychological health than he is, but he would not have been in good psychological health. By 1990 his psychological condition predisposed him to serious consequences from traumata which might not affect a psychologically healthy person. I think that his psychological health would probably have deteriorated if he had not been involved in the collision.

219   The prognosis for his post traumatic stress disorder is poor and I think that he will probably suffer from its symptoms for many years into the future. I think that the symptoms will not always be as bad as they are at present, however, provided he can follow a rehabilitation programme and get back into the work force and begin to lead a life which he himself regards as worthwhile.

220   The plaintiff’s achievement at school until Year 12 was average. At eight and a half years old his IQ was found to be in the high average to above average range, which has been said without challenge to indicate 110. In the school certificate he obtained grade 3 in English - the middle 40 per cent of performers from the thirtieth to the seventieth percentile - and grade A in intermediate mathematics. According to Associate Professor Athanasou those results indicate a pupil of average achievement.

221   In a Year 12 report of 27 April 1990, just before the collision, the summary comment was -

Roy is an affable young man. If he wishes to attain which reflect his ability, he will need to approach school and study more seriously than he is at present …

222   Following the collision the plaintiff returned to school and received this report in September -

Roy is a congenial young man who has made satisfactory progress this year. If he continues to apply himself to his studies before the HSC he should attain results which reflect his potential.

223   The plaintiff’s results in April and September 1990 were as follows -

Subject April September

Religion 33 30
English 54 45
Mathematics 47 50
Biology 65 61
Geography 59 68
Economics 51 39
General Studies 25 35

224   Professor Athanasou considers the plaintiff’s Tertiary Entrance Rank of 41.3 consistent with his performance in the school certificate. Then he compares the school assessment with the examination marks for the Higher School Certificate. They are as follows -

Subject School Assessment Examination
Mark Mark
English 63 56
Mathematics 53 57
Biology 61 59
Geography 75 62
Economics 60 61
General Studies 36 34

225   Professor Athanasou expresses the opinion, which I accept, that on the basis of this evidence the plaintiff’s performance at school was not affected by the collision. He did consider that the HSC results might have been affected, however, and observed that the examination marks when compared with the school assessment marks represented a drop of seventeen marks across eleven units of study, equivalent to about one-fifth of a standard deviation and about three points of IQ. Assuming a perfect relationship between school assessment and examination mark and extrapolating the difference of one-fifth of a standard deviation to the plaintiff’s Tertiary Entrance Rank, Professor Athanasou came to the view that the plaintiff should have gained a rank a little above 45 or at the most 50.

226   Associate Professor Athanasou did not take into account, because he was not told, that the plaintiff was epileptic and might suffer stress in the face of the higher school certificate examination. That is a factor that I must take into account and I think, therefore, that the plaintiff’s results might reasonably have been expected towards the bottom end of the range proposed by Associate Professor Athanasou.

227   Although the plaintiff and Mr Taylor had hopes that he might follow his father into the practice of psychology there was in my view no prospect that he would be able to do that.

228   The cut off mark for the degree of Bachelor of Applied Science (Wine Science) would have been 50.45, and the plaintiff would probably have achieved that mark. Unfortunately, however, the assumed knowledge for the course was 2 unit Chemistry, a subject the plaintiff did not take. He based his wage loss claim on the inability to complete the course he actually undertook, the Associate Diploma of Science in Viticulture at Charles Sturt University, and go on into employment in that industry. I think that it was because of the plaintiff’s over use of alcohol that he failed to make any satisfactory progress in the course at Charles Sturt University, and I think that the time was so proximate to the collision that that inability is fairly attributable to the effects of the collision. I think it very likely that if he had not responded by drinking alcohol in the way he did his post traumatic stress disorder might itself have seriously interfered with his progress in the course.

229   I think that but for the collision the plaintiff would have completed the course successfully and would have had a reasonable chance of making a career as a grower of wine grapes. I accept the evidence of Professor Athanasou that the plaintiff is suited to a restricted range of occupations from an unskilled to a semi-skilled level.

230   He has not made good his claim that he is unemployable and will continue so indefinitely. The effects upon him of his post traumatic stress disorder have not been uniform over time. Before he finished treating him in 1996 Dr Vaughan thought that he had improved to the point at which he no longer fulfilled the criteria for that disorder.

231   It was his and Mr Taylor’s evidence that he could not really cope with the work on the property. Whilst I am prepared to accept that the plaintiff was not free from difficulty from post traumatic stress disorder and from the stresses of other events that happened during that period, especially those which followed the unfortunate diagnosis of Dr Hampshire late in 1994, there are indications that the plaintiff was able to perform satisfactorily.

232   During the years of his residence in the Hunter Valley, the plaintiff came first in the twelve-month course at the Kurri Kurri TAFE. That course was apparently linked to a traineeship in viticulture and as part of the course the plaintiff’s supervisor was obliged to inquire into his progress on the job on his father’s property. His supervisor, Mr Bryan Hubbard, gave evidence and said that he taught the plaintiff for a short period. He saw him briefly on several occasions whilst the plaintiff was working on his father’s vineyard. He visited the vineyard for about an hour and a half on each of those occasions. He was not aware of the plaintiff’s accident or of any disability he claimed to have, either whilst he taught him or when he visited the vineyard. The plaintiff applied himself to his studies and from Mr Hubbard’s observation he believed that if the plaintiff had been able to continue to apply himself with that degree of commitment he would have had the capacity to complete the certificate course upon which he had embarked. Mr Hubbard never went to the vineyard except by arrangement. When they had a meeting there they would discuss the processes that needed to take place over the next three months just to confirm that the plaintiff was aware of what needed to be done. He never saw the plaintiff affected by alcohol. The plaintiff was the operator of the equipment at the vineyard, including tractors specially designed to travel between the vines. He did pruning, weed and pest control by spraying with equipment attached to the tractor power take off. He also carried out irrigation work, repairing or replacing equipment as needed.

233   It might be unsafe to draw from that evidence a conclusion that the plaintiff suffered no disability arising from the accident, particularly related to his post traumatic stress disorder, during the period that Mr Hubbard was acquainted with him. However, it by no means appears that the plaintiff was altogether unable to do the work at the vineyard. I think that he must by that time have recovered a significant proportion of his wage earning capacity in that occupation. The fact that things became worse later on, because of Mr Taylor’s financial difficulties, with the consequent requirement for the plaintiff to come to Sydney and obtain the job at St Vincent’s Hospital in 1994 and the disastrous results that followed his withdrawal from Epilim, had, of course, nothing to do with the collision.

234   The plaintiff’s most recent job ended in September or October 1999 because of what he called a panic attack, which must be taken to mean an epileptic seizure.

235   Whilst I accept that the plaintiff continues to suffer from a post traumatic stress disorder or an anxiety disorder it has to be recognised that although there is a causal relationship between the collision and those conditions, they exist and would have existed independently of the collision because of the fragile personality of the plaintiff before the collision and because of independent stresses which have since had a significant effect upon him. I think that because of those matters his ability to have a full and satisfying working career would always have been severely compromised. In one sense the effects of the collision upon him can be regarded as accelerating the effect of independent forces. I shall therefore apply a significant discount when assessing his economic loss.

236   I think that the plaintiff’s having given up serious cycling is a result solely of the collision. Although he might well have taken up the sport again more recently, the lay-off has been so long that there is no real prospect that he can attain his former fitness and competitiveness and realise his original potential. I shall take account of that in my assessment of his general damages.

237   It is a different thing, however, to say that he would have obtained selection at the Olympic Games, would have turned professional and would have earned substantial sums of money in that pursuit. He had finished in tenth place in the Australian Championships not long before the collision. He was the second-best sprinter in New South Wales. Mr Taylor spoke of him in glowing terms, but I think that he may not have been completely objective in this respect. Although the plaintiff was young and might have been expected to improve, the probable effects of his epilepsy upon him must be considered. Falling to the track or the road is a common hazard of cycling at that level and it seems to me that head injury represents a substantial risk of the sport. No doubt the use of helmets ordinarily provides protection, but the plaintiff was particularly vulnerable and at a consequent disadvantage when competing with others for places in teams and events and, ultimately, in the earning of income. In addition, the stress of major competition would have tended to precipitate the onset of epileptic symptoms.

238   Although there was evidence of very high sums of money earned by exceptional professional cyclists, I do not accept that the plaintiff had any chance of joining the ranks of such persons. Ultimately he put his wage loss claim by comparison with a viticulturist, and I think that that was a realistic approach to the case.

239   The schedule provided by the plaintiff shows that between 1993 and 2000, until he ceased work altogether, the plaintiff earned at a rate varying between just under one-half and about three-quarters of the wage of a viticulturist. His total net wage loss on that basis, calculated to the end of 2000, is $97,300, and I shall allow him that amount.

240   I shall allow him twenty years of wage loss for the future. I think that after twenty years he will have become rehabilitated, because I think that rehabilitation is possible, or would for independent causes have become practically unemployable. This will subsume any discount for vicissitudes. I allow him for that period the sum of $300 per week, which is approximately half the average net weekly earnings for full-time adult employees.

241   I assess the plaintiff’s damages as follows -

General damages

I assess general damages at $80,000. One-half of that figure will be attributable to the past and I allow interest on that component at two per cent for ten and a half years, which comes to $8,400.

Past economic loss

I allow past economic loss for the years 1993 to 2000 inclusive at $97,300. In addition I shall allow interest at half the Supreme Court rates for the whole of that period.

Future economic loss

I allow the plaintiff $300 per week for twenty years. Allowing three per cent on the fund, that requires a figure of $236,370.

Out-of-pocket expenses

The plaintiff’s claim for the past is $13,623, but I think that not all of this is attributable to the collision. I allow $8,000 including interest. For the future, I allow $25 per week for twenty years. This is intended to provide for medication and consultation with specialists, including counsellors, occupational therapists and rehabilitation therapists. Assuming earnings at three per cent, the figure required is approximately $20,000. I allow that amount.

Superannuation benefits

I assess loss for the past at seven per cent of the plaintiff’s past economic loss and for the future at eight per cent of his future economic loss.

Contributory negligence

242   The plaintiff’s damages will be reduced by fifty per cent for contributory negligence.

243   Counsel may bring in short minutes to give effect to these assessments. Subject to matters counsel wish to put to the contrary, the plaintiff should have his costs against the Council. All other defendants and cross-defendants should have verdicts and costs.

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Last Modified: 12/29/2000