[2001] NSWSC 278 Reported Decision : [2001] ACL Rep 135 NSW 23 [2001] ACL Rep 300 NSW 31 New South Wales Supreme Court CITATION : Beck v State of NSW & Anor [2001] NSWSC 278 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC NR600015/98 HEARING DATE(S) : 30-31 January, 1-13 February 2001 JUDGMENT DATE : 18 April 2001 David Robert Beck (Plaintiff) PARTIES : State of New South Wales (1st Defendant) Perisher Blue Pty Limited (2nd Defendant) JUDGMENT OF : Studdert J D. Wheelahan QC/G. Radburn (Plaintiff) COUNSEL : J. Maconachie QC/G. Laughton (1st Defendant) D. Nock SC/R. Beasley (2nd Defendant) Baker Mannering & Hart (Plaintiff) SOLICITORS : I.V. Knight (1st Defendant) Colin Biggers & Paisley (2nd Defendant) CATCHWORDS : NEGLIGENCE - plaintiff injured in activity in snowfield - first defendant in charge of excursion of school children and plaintiff a trainee teacher engaged to assist in caring for children - whether first defendant owed duty of care to plaintiff and, if so, whether breach of duty causing harm - defences of volenti non fit injuria and of contributory negligence. NEGLIGENCE - second defendant lessee or licensee of area where injuries suffered - whether second defendant owed plaintiff duty of care and, if so, whether breach of duty causing harm - defences of volenti non fit injuria and of contributory negligence. DAMAGES - injuries resulting in quadraplegia - consideration of relevant heads of damage. Motor Accidents Act LEGISLATION CITED : Workers' Compensation Act Law Reform (Miscellaneous Provisions) Act Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Barisic v Devenport (1978) 2 NSWLR 111 Burnicle v Cutelli (1982) 2 NSWLR 26 Fitzgerald v Lane (1989) 1 AC 328 CASES CITED : Halsbury's Laws of Australia (1994) Vol 19 at 300-140 Insurance Commissioner v Joyce (1948-49) 77 CLR 39 Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 Roggenkamp v Bennett (1949-50) 80 CLR 292 Sullivan v Gordon [1999] NSWCA 338 Sutherland Shire Council v Heyman (1984-85) 157 CLR 424 DECISION : See para 308 INDEX Paragraph number The circumstances of the accident 6 The case against the first defendant 22 The case against the second defendant 42 The plaintiff's conduct The defence of voluntary assumption of risk 59 Contributory negligence 86 Apportionment of fault 90 Damages 100 Allowance for non economic aspects - general damages 116 Interest on past allowance 118 The plaintiff's life expectancy 120 Loss of earnings and loss of earning capacity - Past: As a teacher 133 As a tennis coach 141 Future: As a teacher 145 As a tennis coach 157 Interest on the claim for past economic loss 160 Fox v Wood 162 Lost superannuation benefits 163 Future loss of long service leave entitlement 165 Out of pocket expenses 167 Claim for past gratuitous assistance 168 Interest on allowance for past services 181 Future care provision 182 The cost of a motor vehicle 198 Provision of a mobile phone 210 Cost of future medical treatment 213 General practitioner 214 Spinal injury specialist 215 Paragraph number Renal ultrasound 217 Intravenous pyelogram 218 Specialist urologist 219 Occupational therapy 220 Uro-dynamic studies 221 Hospital admissions 222 Pressure sores 223 Spinal cord procedures 224 Urological procedures 225 Acupuncture 227 Provision for future medication and pharmaceutical requirements 229 Future cost of Baclofen pump surgery 230 Future cost of child care 233 Future cost of a computer 242 The claim for increased holiday costs 249 Claim for future cost of equipment 256 Provision of an assistance dog 260 Future cost of housing 271 Summary of assessment 301 Payments made by the first defendant 302 The plaintiff's entitlement 304 The cross claims 305 Costs 307 Formal orders 308 -------------- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Wednesday 18 April 2001 600015/98 DAVID ROBERT BECK v STATE OF NEW SOUTH WALES & ANOR JUDGMENT 1 HIS HONOUR: David Robert Beck was the victim of a tragic accident on 2 September 1995 at a time when he was twenty-one years of age. He suffered a fracture of the fifth cervical vertebra and severe spinal cord injury in an accident on a snow covered mountain slope near the Blue Cow Mountain ski centre in the Kosciuszko National Park. The plaintiff was then a trainee primary school teacher, in his third and final year of a course of study at the Southern Cross University at Lismore. He was gaining practical experience at Ballina Primary School and he accepted the opportunity of accompanying two teachers employed at that school, two parents and fifty-six children on an excursion that eventually led to the group's presence on the mountain side where the plaintiff was injured. 2 The plaintiff has sued the State of New South Wales as first defendant and Perisher Blue Pty Limited as second defendant, alleging that company to be the lessee, or, alternatively, the licensee, of the area where the accident occurred. Each defendant has been sued in negligence. Against the first defendant, the plaintiff has alleged the existence of a duty of care arising by reason of the circumstances of the plaintiff's participation in the excursion and a breach of that duty in the circumstances in which the injuries were sustained. 3 In the statement of claim the plaintiff also alleged negligence against the first defendant by reason of the alleged breach of duty of the New South Wales National Parks and Wildlife Service, but this claim was not pursued. The plaintiff alleged that the second defendant owed to him a duty of care by reason of its occupation and control of the Blue Cow ski centre area and of the accident area and a breach of such duty in the circumstances of the plaintiff's accident. 4 Each defendant has denied negligence and has raised the issue of contributory negligence as well as a complete defence based upon the alleged voluntary assumption of risk by the plaintiff. A further issue raised on the pleadings by the second defendant was the exclusion of liability under the conditions of entry stated on the second defendant's form of ticket for Blue Cow, but this issue was not pursued. 5 The defendants cross claimed against each other and it will be necessary to consider these cross claims later. THE CIRCUMSTANCES OF THE ACCIDENT 6 The teachers who participated in the excursion were Messrs Bryan Lyndon and Ross Atkins. The parents were Mrs Lynette MacDonald and Mrs Nancy Milne. Mr Lyndon gave evidence and so too did Mrs MacDonald but neither Mr Atkins nor Mrs Milne did so. None of the children who participated in the excursion was called as a witness. 7 It was the plaintiff's evidence that he was not exposed to any expense in respect of his participation in the excursion which took the party to various places and eventually to the place where the accident occurred. Accommodation, meals and the price of entry to exhibitions from the time that the party left Ballina were provided to the plaintiff without cost. He said he did not pay to enter the snow fields and he was provided without charge with snow gear, being a waterproof jacket and pants. He said, and I accept, that the two teachers were in charge of the excursion. 8 The plaintiff said that on the way to Blue Cow the party stayed at a motel at Berridale where an earlier excursion group from the same school had stayed. That group had left behind a number of real estate "For Sale" notices, one of which was tendered as an exhibit. The exhibit is unremarkable, being of typical polished cardboard or plastic fabrication. The various notices were placed in the bus used by the excursion group and were conveyed to the ski fields to be used as toboggans. When the bus arrived at Bullock Flat all, or nearly all, the school children in the party were issued with notices and the plaintiff and the teachers had notices as well. These notices were carried on to the train that took the party to the station at Blue Cow. (Exhibit O depicts several of the children in the train and part of two of the notices I am satisfied were typical of those taken to the mountain.) The notices were carried from the train at the station at Blue Cow and the party proceeded by stairway to the upper of the two levels there. Then the party went out on to the snow and eventually to the location where the plaintiff was injured. The plaintiff said that there was a fresh cover of snow on the ground and that this cover was ankle deep. I accept the evidence that the plaintiff gave as to all of the above matters I have reviewed. 9 The plaintiff said that Bryan Lyndon pointed out to him where on an excursion the previous year tobogganing had occurred and he told the plaintiff that "We are going to ride the signs down the side there." The group headed to that place which the plaintiff said involved a walk of approximately one hundred to two hundred metres across a level area, although he later agreed with Mr Nock after being shown certain photographs that the distance was much further. The evidence satisfies me that the plaintiff's concession was correct. The second defendant's Exhibit 1 is a photo showing the area where the accident happened and I am satisfied from what Mr Lyndon said and on the whole of the evidence that this area was approximately one kilometre away from the tube station. 10 The plaintiff said that Mr Lyndon and himself were at the head of the group when they reached the area where Mr Lyndon pointed out the slope and the take-off point, which was then above them. The plaintiff agreed in cross examination that this slope was a moderate one. Many photographs were introduced in evidence depicting the slope in question and features of it. The first defendant's Exhibits 1B, 1C and 1D show the slope, and so too do the second defendant's Exhibits 1, 2, 3 and 4. Mr Buckland's report, Exhibit B, also has a number of photographs of the slope attached to it, although these were taken in the month of October 1996 and I am not satisfied that they afford an appreciation of the extent of the snow cover in early September of the previous year. Whether the balance of the photographs to which I have referred present a completely accurate picture of the cover when the plaintiff was injured I am unable to determine. Mr Lyndon thought the snow cover was different (T250). The photos he was shown were taken the day after the accident, and it is possible therefore that conditions had altered somewhat by then. However I treat the photos as affording some sort of guide to conditions on the previous day. 11 The plaintiff said that it was necessary to walk up to the take-off spot pointed out by Mr Lyndon. The plaintiff said that he did this and he used the "toboggan" he had with him, a "toboggan" that had no rope or attachment to it, and he proceeded on it head first down the slope. He said that the snow was quite thick to start with but, as more passages were completed through this snow by the plaintiff and other members of the party, the track became faster as the snow compacted. The plaintiff said that the children were going down the track and then walking back up the slope in Indian file and that this went on for twenty minutes. The plaintiff estimated the slope as one of about twenty metres, although photographs introduced later in cross examination would suggest that the length of the slope was greater. After some twenty minutes, one of the children went over to another take-off spot one to two metres further to the left looking down from the top of the slope. The plaintiff said he was with this child and decided to go down first. He said that this new track had more fresh snow on it at the take-off point and was probably a touch steeper. Looking down the intended track, there was to be a point at which it would join the track earlier used so as to create in effect a Y intersection. 12 The plaintiff said that he went down this track, joining the old track after a passage of about three or four metres. His evidence, which I accept (T34), was as follows: "Well I went down, pretty much joined back on to the other track. It was quite icy and I started to skewer towards the right. As I skewered towards the right I could see a tiny shrub, I was heading for that and trying to move the sign to steer away and it didn't work. All that was very quick. A branch, I tried to duck my head, hit my head, tumbled over a few times and that was it. I couldn't move. I knew straight away with the pins and needles I couldn't move." 13 The plaintiff went on to say that he travelled "a fair way" beyond the Y junction after rejoining the original track but "gradually started skewing towards the right…" 14 Bryan Lyndon gave evidence that he and Mr Atkins were in charge of the excursion. He defined the plaintiff's role as being that of "a parent helper to help supervise the children and help out with any other duties." He agreed that he pointed out to the plaintiff where they had gone the previous year and that he said "Let's go over to that slope." His evidence was that the group did have the estate agent signs, and he said that the school first came into possession of them a year before, when they were left in the snow by a group of students from another school. The signs were used by Mr Lyndon's group in a similar excursion to Blue Cow in 1994 and they had been used at Blue Cow by another group from the same school the week before the plaintiff's accident. That group was also supervised by teachers from Ballina Primary School. Mr Lyndon said that he slid down the slope on a sign, as did the students and the plaintiff. He said "It seemed a nice slope to be sliding down." He estimated the length of the slide as being forty metres and I prefer that estimate to the one given by the plaintiff and referred to earlier. 15 Mr Lyndon said that it was after ten to fifteen minutes that there was a change in the route down the hill. He said that a student moved across but the plaintiff in fact was the one to go down the new route. Mr Lyndon placed the take-off point as "a little bit steeper" and it "joined on to the other track" . It did so after a couple of metres. According to Mr Lyndon the plaintiff travelled down the second track twice, the first time without mishap and he, Mr Lyndon, also travelled down the second track, doing so safely. It was then that Mr Lyndon said the plaintiff had his accident. Mr Lyndon was asked these questions and gave these answers (T227-228): "Q. What then happened to the activity, to your observation? A. I was at the bottom of the slope. He took off from the same point. Joined onto the other track, went down the slope a little bit further and slid sideways. Q. And slid sideways, in which direction apropos the earlier track? A. To the right. Q. That from his perspective or yours? A. His perspective. Q. What did you notice then about him, or what happened to him? A. To the side of the slope there looked like a small bush and David went towards it. He ducked his head to go under it, I assume, and he rolled away from the bush. Q. And I think your initial reaction was he was skylarking, rolling away? A. At first. Q. That didn't last for long though? A. No, couple of seconds. Q. Then you realised he had been injured, and seriously so? A. Injured, yes." 16 It is to be observed that Mr Lyndon's account as to the circumstances in which the plaintiff was injured accords in material respects with the plaintiff's account and I am satisfied that the plaintiff did sustain his serious injuries when he struck a rock positioned behind a small bush as shown in the first defendant's photos Exhibits 1B and 1C. The obstruction is circled in the photographs. Where Mr Lyndon's account differs from that of the plaintiff is in the number of slides undertaken from the second position. 17 Mr Lyndon was cross examined on the content of an interview, the transcript of which was admitted into evidence as second defendant's Exhibit 13, and on the content of a statement admitted into evidence as the second defendant's Exhibit 14. In the recorded interview conducted shortly after this accident, Mr Lyndon said that the plaintiff's accident occurred in effect on the third slide from the new position, the first and second slides having been conducted by the plaintiff and himself. In this respect that earlier account accords with the evidence the witness gave on the hearing. However at the recorded interview Mr Lyndon went on to say that when he was at the foot of the track he heard the plaintiff tell the child at the top of the slide that he was going to go down once more. As the witness acknowledged in Court, it would not have been possible for him to hear what the plaintiff was saying at the top of the slide when he was at the bottom of the slope. In that recorded interview Mr Lyndon also told the interviewer that the plaintiff had already said to the child he would go down from the new position first "just to check to see if it was sort of okay and safe" . Again, it does not seem to me that it would have been possible for Mr Lyndon to have heard that, and he acknowledged as much in his evidence. The statement, second defendant's Exhibit 14, reads in part: "At some stage one student wanted to go down from a steeper take off point. David was near that student who was Scott Frost. I saw David go from the new point and I went down from there, next. David and some of the children moved along the ridge of the slope and it was an area where the ride would have become slightly steeper and would have joined onto the track they had made by going down from the first position and was only a short distance from this position." 18 It was put to Mr Lyndon that he was conveying in the above passage that the plaintiff was injured after he took off from a third position but Mr Lyndon said that this was not what he was intending to convey. 19 In this one respect, namely how many slides were undertaken from the new position, I prefer the plaintiff's recollection, which I found to be convincing, to that of Mr Lyndon. I think it more probable than not that the plaintiff was injured on the first attempt to slide down the slope from the position to which the student had drawn the plaintiff. Whatever be the explanation for Mr Lyndon's differing account, I do not find such account to be correct. 20 Mrs MacDonald, the accompanying parent who gave evidence, said that there was on this expedition "practically one sign for each student" . I accept that this was so. Mrs MacDonald said that she was sitting on some rocks some distance away from where the signs were being used when the accident was reported to her and her evidence does not add to the evidence reviewed as to the circumstances in which the plaintiff was injured. The accident occurred at a position which Mrs MacDonald assessed to have been two hundred metres from where Mrs Milne and herself were sitting watching some of the children playing. 21 From the above review of the circumstances in which the plaintiff had his accident, I turn to consider the issue of liability. THE CASE AGAINST THE FIRST DEFENDANT 22 Mr Wheelahan submitted that the facts established the required proximity in the relationship between the plaintiff and the first defendant as to give rise to a duty of care by the first defendant towards the plaintiff. I was referred to the much cited statements of principle in the judgment of Deane J in Sutherland Shire Council v Heyman (1984-85) 157 CLR 424 at 497-498. I am satisfied by the evidence that the requisite proximity has been established, that the first defendant did owe to the plaintiff a duty of care and that it breached such duty. 23 The evidence establishes that the plaintiff was asked to participate in the excursion in the circumstances and for the purposes that emerge from the evidence earlier reviewed. The first defendant gave the plaintiff the incentives to attend the excursion by covering all his expenses, providing for his accommodation and snowfield clothing and by facilitating his absence from university to attend on the excursion. The plaintiff's presence was required so as to provide what those responsible for the conduct of the excursion perceived to be the requisite supervision of the children to be accompanied. As Mr Lyndon acknowledged, and as I find, Mr Lyndon and Mr Atkins were in charge of the excursion, and the plaintiff was called upon to accompany them to the accident site, and to assume a role in looking after the children in the activity for which the first defendant selected such site. I find he was encouraged, and indeed expected, to participate with the children in the activity on the slope, and for this activity he was provided with an advertising sign to be used as a makeshift toboggan. 24 The invitation to the plaintiff to participate in the excursion was perceived by him, in my view correctly, to be advantageous to him in the development of necessary professional skills. I refer to his evidence (T20-21): "Q. How did you regard it, that is, your attendance at the excursion, from the point of view of your career? A. I saw it as a great opportunity to attend, looking at it from an organisational point of view and just from working with the kids and just seeing what went on an excursion as such. Q. Did you foresee it as having any advantage to you? A. For sure. Q. What did you foresee as the advantage to you of going on the excursion? A. I think that potential employers could you see that I had been on the excursion and had been involved in the organising of the excursion." 25 It was the first defendant which selected the location and the activity which took the plaintiff to the place where his accident occurred, and it was the first defendant which provided the sign to be used in the activity. 26 Expert evidence was introduced from two sources directed to the issue of liability. This evidence was provided by Mr Buckland and by Mr Gow. 27 Mr Buckland, an engineer qualified by the plaintiff, prepared a report, Exhibit B1, and he also gave evidence on the hearing. Mr Buckland, who visited the accident site in October 1996 when he took the photos to which I referred earlier, did not have the opportunity of seeing the area in the precise condition that presented when the plaintiff was injured, but he had the opportunity of seeing the slope and the hazards which rocks and trees presented there. At its narrowest point the tobogganing slope was measured by him to be 8.5 metres in width and it widened to twelve metres. Mr Buckland's report highlights the dangers associated with tobogganing in general and in particular with the use of make-shift devices such as those provided by the first defendant. On p 10 of his report of 7 April 1997, Mr Buckland stated: "…the dangers inherent in tobogganing stem from the lack of directional or steering control available and also the lack of braking available. A flat bottomed mat or toboggan, such as the signs used in this instance, will inevitably follow the steepest fall line down a slope, descending under the influence of gravity. It may, however, be caused to veer or bounce off course on bumps or undulations that cannot be avoided due to the lack of steering, but it could generally be expected to hit whatever it was aimed at on the way down the slope." 28 Mr Buckland was critical of the slope chosen for the activity and wrote at p 12 of his report: "…the slope chosen and used by the school excursion party was unsuitable for tobogganing activities. There were visible obstructions in the form of trees and rocks in the run-out area at the bottom of the slope, as well as large rocks on either side and the small tree and rock struck by the plaintiff. In addition, the icy conditions that are said to have been revealed on the tobogganing track, once the fresh snow had been worn from that surface, would have increased the speed of descent for the riders and also the risk of injury when hitting an obstruction." 29 The second defendant tendered a report from Mr Gow, who has thirty-four years experience in the ski industry. The report was admitted as the second defendant's Exhibit 12 and the author was not ultimately required for cross examination. Mr Gow visited the accident scene on 30 September 2000. He reported that he was led to believe that no modification to the terrain had taken place, although, of course, the snow conditions would in all probability have been different on the occasion of his visit. However, it was not suggested that the terrain had changed over the years since the accident and the assumption upon which Mr Gow reported was not challenged. 30 Mr Gow said this in his report dated 27 November 2000: "Should one plan to toboggan or otherwise slide on snow, the choice of slope is paramount to maintain the least possible hazard to participants. A sliding slope should be: i) Open and clear of obstructions ii) No more than 15 to 20 meters of vertical drop iii) A gradient of 10 to 50% (4.5 to 22.5 degrees). Pitches over 25% (11.5 degrees) should be of short duration iv) Leading onto a long flat or upsloping runout, also clear of any obstructions v) Wide enough to provide a dedicated ascent route vi) Under the supervision of a person knowledgeable in snow based recreation It is notable that the slope on 5 September 1998 met none of the above criteria. In contrast, it had: i) Many visible rocks, boulders and snow gum trees both on and adjacent to the slope ii) A vertical drop in excess of 25 meters iii) Slope angles of up to 100%, and sustained slope angles of approximately 58% iv) No runout area v) Insufficient width for a dedicated ascent route vi) No supervision by a person knowledgeable in snow based recreation" 31 As to the use of the signs, Mr Gow opined: "Without handles or ropes, the participants found it necessary to lay prone, head forward, in order to grip the front of the sign and to keep the leading edge from digging into the snow. This is an extremely hazardous position as the risk of serious head or spinal injury is obviously much greater in the event of collision with other people, objects or obstructions. Sliders in this position will find it very difficult to maintain a proper view forward, as it is necessary to crane one's neck back in an uncomfortable position. It is impossible to influence the direction of travel of a flat plastic sheet once sliding. It will travel straight down the fall line, with no question of manoeuvrability. The only possible way of avoiding obstacles or hazards below is to choose a line at the outset which will not lead you to them, or to bail out prior to reaching them. The sliding devices commercially available for sale and hire at the time were of a plastic dish design on which the participant would sit feet forward, upright in the back. With this design, proper visibility is maintained and one's feet are ahead. These sleds have moulded runners in their sliding surface which may provide some directional stability. It was both inappropriate and dangerous to provide real estate agents signs to children and others for the purposes of sliding on snow." 32 I accept what Mr Buckland and Mr Gow have stated in the passages above recorded. Their evidence satisfies me on the balance of probabilities that the area to which Mr Lyndon and Mr Atkins took the excursion party was not suitable for tobogganing and that the use of the signs as make-shift toboggans was altogether inappropriate for the reasons identified by Mr Buckland and by Mr Gow. Further, the evidence satisfies me that the plaintiff was given no instruction or warning concerning the activity upon which the party engaged upon the mountainside. I am also satisfied that the first defendant failed to provide the knowledgeable supervision identified by Mr Gow as being required. 33 One of the photographs annexed to Mr Buckland's report, Exhibit B1, shows a sign which, according to the evidence, was located on the lower level of the Blue Cow ski centre to which the train took the party. The sign reads: "Toboggans strictly prohibited at Blue Cow Mountain. Toboggan slopes located at Perisher and Smiggins." 34 That this sign was present on the lower level of the centre at the relevant time was admitted by the second defendant on the pleadings and the hearing proceeded upon this basis. 35 There was no such sign on the upper level of the centre to which the party proceeded immediately after leaving the train. I accept that neither Mr Lyndon nor the plaintiff was aware of the sign displayed at the lower level. I accept the evidence that Mr Lyndon gave that had he seen a sign prohibiting tobogganing he would not have permitted the activity to occur and I am satisfied that had he seen the notice which was displayed he would not have allowed the use of the signs in the manner in which they were used. 36 Neither Mr Lyndon nor Mr Atkins had skiing experience. I refer to the following questions and answers in the course of the evidence of Mr Lyndon (T246): "Q. Just while we are dealing with that, did you yourself, have any experience in the snow fields? A. A little. Q. Was that gained on the other excursions you had had with the school? A. Yes. Q. You were not a skier? A. No. Q. Had you ever tobogganed before? A. No… Q. Did you have any idea at all, when you went down to the snow fields for instance, as to how these real estate agents signs would behave on the snow fields? A. Only from observation the year before. Q. Only from what you had seen the year before. That right? A. Yes. Q. Did you have any idea for instance, how you could steer these boards? A. I'm not sure. Q. You are not sure. Did you have any idea about how you actually physically for instance, put yourself on the board? A. Yes. Q. How did you do that? A. You lay on it. Q. Yeah, prone. That's face down? A. That's one way. Q. How had you found that out? A. Observation the year before and when we partook in it the year before. Q. Nobody had said anything to you about it at all? A. No. Q. Tell me, were you aware whether Mr Atkins had any experience in the snow? A. Only from previous excursions." 37 Accepting as I do the evidence recorded above, it seems to me that Mr Lyndon lacked the necessary experience to appreciate the risks associated with the activity initiated by him. Mr Lyndon's evidence suggests that Mr Atkins was no better qualified to consider such risks. 38 Cross examined (T252) as to his appreciation of any risk of sliding from the higher point from which the plaintiff eventually proceeded, Mr Lyndon gave the following responses to the following questions: "Q. Just let me suggest to you this Mr Lyndon, standing where the photographer was standing, in the large photograph that you have. Can you look at the photograph and the slope of the land. Do you say that you didn't have to be careful about what you were going to do down that slope? A. No. Q. Do you say that there was nothing in that slope, looking at the photograph there, that posed any sort of danger to anybody? You are shaking your head. You have got to answer. A. No. Q. Did you recognise any danger there at all? A. No. Q. After the accident, did you think again about that? A. Yes. Q. There was a danger wasn't there? A. I didn't think so." 39 I find that the failure of the witness to appreciate the risks resulted from Mr Lyndon's lack of relevant knowledge and experience and the failure to follow departmental protocol as to the requirements for excursions. Departmental protocol was prescribed in a memorandum addressed to school principals dated 23 February 1995 and tendered as second defendant's Exhibit 7. In relation to excursions, that protocol included the following requirements: "1.3 Conduct of Excursions (3) Supervision Before the planned excursion is undertaken principals are to ensure that precautions are taken in relation to the safety of the participants and that supervision will be adequate in relation to the number of students, their maturity, anticipated behaviour and the activities planned… Where it is considered necessary, the site of the proposed excursion should be assessed beforehand to identify potential problems or dangers and to determine the level of supervision necessary to avoid the risk of injury." 40 Mr Campbell, who has been the overall principal of the school where Mr Lyndon was engaged, gave evidence that the above protocol would have been available to Mr Proudfoot, who was in de facto charge of the primary school in 1995 and who had the delegated responsibility to approve the excursion upon which the plaintiff was injured. The excursion should not have been undertaken without proper attention to the protocol requirements set out above and the assessment which the protocol required ought to have been conducted by a person or persons with appropriate expertise. Plainly, Mr Lyndon did not have the necessary expertise in the snowfield, and neither, it would appear, did Mr Atkins. This ought to have been apparent to Mr Proudfoot. I find that due inquiry and planning for the purposes of the excursion would have alerted the relevant school staff to the hazards associated with the activity on which the plaintiff was injured and that it is unlikely had there been the necessary inquiry and planning that the relevant activity would have taken place. Indeed, a simple telephone call to the second defendant would be likely to have alerted the school staff to the prohibition against tobogganing, and I accept Mr Lyndon's evidence previously referred to that had he been aware of the prohibition he would not have allowed the activity (T217). 41 For the reasons above stated, I am satisfied that the first defendant was negligent in circumstances in which it owed to the plaintiff a duty of care. I am also satisfied that such negligence was causative of the harm that befell the plaintiff. THE CASE AGAINST THE SECOND DEFENDANT 42 The second defendant was, at the time of this accident, the lessee of the Blue Cow Mountain ski centre and the area defined in a schedule to the lease which incorporated a plan defining the boundaries of the leased area. The lease became Exhibit L. In addition, the second defendant was the licensee of adjoining land being an access area between Blue Cow and Guthega ski resort areas. The licence agreement, described as a Link Management Unit Licence, became Exhibit M. An issue arose as to whether the plaintiff met with his accident in the area the subject of the lease or the area the subject of the licence. The area covered by the licence is described in the licence agreement as "J7", and the leased area has been described in evidence as "J6". 43 Mr Burns, a surveyor who made an inspection of the location of the accident, identified that spot sufficiently on the ground but was unable to determine where it occurred in relation to the boundary between J6 and J7. Fundamentally, the inability to do so arose from the fact that the plan attached to the lease defining the boundaries of J7 has such boundaries ill-defined because the definition lines placed on the plan are too thick. 44 Mr Burns gave evidence (T352) as follows: "Q. What does the boundary, as shown in Ex L, that is on plan A, translate to in terms of what you would find on the ground at Blue Cow Mountain? A. Very little, nothing. It is a statement of intention between the two parties to be followed up by putting pegs on the ground which would unambiguously define the boundaries of that agreement. Q. Looking at the western boundary of plan A locating the site of the accident, as you did, where were you left with regard to whether or not that site as located was within or without the boundary? A. As I mentioned earlier, unfortunately I consider that the site of the accident is either under the line or very close to it, and I don't think I have sufficient information from this plan to make a decision." 45 Mr Burns said that there is no rule of surveying protocol or practice that to determine the edge of the boundary one looks at the outside of the line drawn as indicative. The plan attached to this lease shows ill-defined boundaries, the location of which, according to Mr Burns, cannot be ascertained within 20-60 metres. 46 Viewed as a whole, Mr Burns' evidence does not permit a finding more precise than that the accident occurred in the leased area or somewhere within 20-60 metres of it, or "very close" to the boundary. 47 Mr Nock called a cartographer, Mr Hogg, whose report became the second defendant's Exhibit 10. Mr Hogg prepared his own map, having had resort to eight different maps for the purpose of doing so. He concluded, by a process described in his report and further explained in his evidence, that the plaintiff's accident happened at least sixteen metres west of the position of the thick "boundary" line in the plan attached to the lease. This would have placed the accident as occurring in the licensed area. 48 Having considered the evidence of these two witnesses, I am unable to determine with precision where the accident occurred in relation to the boundaries of the leased area. Objection was taken to the introduction of the evidence given by Mr Hogg and, having reflected upon the competing submissions, it seems to me that the better view is that it is inappropriate to go outside the lease and its annexed plan for definition of the boundaries of its "demised premises" the area the subject of the lease. Even if it is proper to heed the opinion reached by Mr Hogg, I am still not persuaded, having regard to the evidence of Mr Burns, that it is more probable than not that the accident occurred in the area covered by the licence, Exhibit M, in any event. I find that I am unable to determine whether the accident happened within the leased area or outside it. 49 Mr Wheelahan submitted that this is of no consequence in relation to the plaintiff's case against the second defendant. In my opinion, this submission is correct, for the reasons advanced by Mr Wheelahan. He submitted that the plaintiff's case did not depend upon proving that the accident occurred on the leasehold land. What mattered was what occurred on the leasehold land prior to the accident. He submitted, and I find, that the necessary requirements for proximity were satisfied and that a duty of care was attracted in the second defendant towards the plaintiff. This was so because the second defendant accepted the plaintiff for reward as a passenger in the ski tube from Bullocks Flat to Blue Cow and once there it accepted him on to the skifields where no boundary line was defined to indicate the point at which the second defendant's lease ended and its licence began. The second defendant was in a position to exercise, and acted to exercise, a measure of control over visitors upon arrival at Blue Cow as indicated by the various notices posted at and in the vicinity of the ski centre at Blue Cow. These notices included, significantly, the notice which prohibited tobogganing but which notice was displayed only at the lower level. 50 The presence of the notice on the lower level of the ski centre building forbidding tobogganing at Blue Cow invites the inference that the second defendant regarded the terrain in that area as unsuitable and unsafe for tobogganing and I draw such inference. In a letter to the Kosciuszko National Parks and Wildlife Service written some nine months after the plaintiff's accident on 2 June 1996, the second defendant advised that it had decided to prohibit tobogganing for the 1996 snow season and for the future. It was stated in the letter: "After some consideration we have decided on this course of action because of the lack of a suitable area for tobogganing in close proximity to the Blue Cow Terminal Building. Also some of the terrain close to the terminal building is quite steep and rocky. We have found that tobogganists are wandering to these areas and using dangerous slopes. The task of constantly patrolling them is almost impossible." 51 The letter went on to record that the plaintiff had been seriously injured during the 1995 snow season whilst tobogganing in one of those areas. 52 The relevant lease in relation to Blue Cow commenced in June 1985 and the second defendant ought to have known of the hazards recognised in the above extract from its letter well before the plaintiff's accident. Indeed, I infer that such knowledge probably prompted the erection of the sign prohibiting tobogganing which was in place in September 1995. 53 I accept the submission advanced by Mr Wheelahan that the second defendant ought to have displayed adequate notice at and about the terminal building. To have only the one relevant notice in place at the lower level was inadequate to discharge the second defendant's obligation, because it was reasonably foreseeable that entrants might chose to ascend the internal stairs at the terminal building without becoming aware of that notice. The evidence of the plaintiff and of Mr Lyndon satisfies me that this is what happened on 2 September 1995. There ought to have been a notice prominently displayed at the upper exit level of the building to attract the attention of those who, having left the ski tube, proceeded upstairs within the terminal building, and the second defendant has admitted that there was no such sign displayed. 54 I do not consider that anything turns upon whether the activity being undertaken ought strictly to be termed tobogganing or not. I am satisfied that a notice prohibiting tobogganing would have sufficed to convey that the use of the real estate signs as make-shift toboggans was prohibited. Mr Lyndon's evidence was to that effect and his evidence satisfies me that had a notice prohibiting tobogganing been observed at the terminal building the activity employing the use of the signs would not have been pursued. Moreover the plaintiff's evidence was that he would not have engaged in the activity had he seen a sign prohibiting tobogganing. 55 Mrs MacDonald, to whose evidence I referred earlier, said that after the group left the terminal there was a meeting outside it when the children were given instruction. Mr Lyndon and the plaintiff gave evidence to the like effect, and I accept that there was such a meeting. Mrs MacDonald said that she heard a male person say "Bring the signs back with you because we don't want them on the mountain when the snow melts." Whilst I accept that Mrs MacDonald heard a statement to this effect, the evidence falls short of establishing that it was an employee of the second defendant who spoke. There is, however, evidence which invites the conclusion that the defendant, through its employees working at the terminal, knew that the group of children had arrived at the terminal carrying the prominent real estate signs. The plaintiff said that beside the exit to the terminal there was a glass walled office and that there were people inside it working behind a desk. There was, so far as the plaintiff could see, nothing to prevent those people from observing the group of which the plaintiff was a member. 56 The conclusion is inescapable that this group would have been very conspicuous and anyone observing the group could not have failed to observe the prominent real estate signs. It seems to me that it is proper to draw the inference that the second defendant through its employees working in the office became aware of the arrival of the party with the signs. Further, it seems to me to be likely that those in the office would have appreciated the intended use of the signs. I accept Mr Wheelahan's submission to this effect and his further submission that in the circumstances the second defendant through its employees working at the station ought to have warned the teachers in charge of the group that tobogganing was prohibited and that the signs ought not to be used for such purpose. I am satisfied on the evidence that no such verbal warnings were given, and I am satisfied on the evidence that the group remained in, and in close proximity to, the terminal building for a time more than sufficient to have afforded the opportunity to the second defendant to give appropriate warning. 57 Further, I consider it likely that those operating the second defendant's ski tube would have observed this large group carrying the signs onto the train. It seems to me that the opportunity must have presented itself to those controlling the operation of the ski tube to give appropriate warning. It is to be observed from the second defendant's letter already referred to that a measure intended to be implemented in the 1996 season was not to allow toboggans on the ski tube past the Perisher station. That a decision to implement this measure was taken in 1996 evidences the practicability of the precaution which equally could have been taken in 1995, but which the second defendant did not take. 58 I am persuaded that negligence has been established against the second defendant in the respects I have identified. Moreover, I am satisfied that such negligence was causative of the plaintiff's injuries. THE PLAINTIFF'S CONDUCT The defence of voluntary assumption of risk 59 Both defendants rely in this case upon the defence of voluntary assumption of risk. In the ninth edition of Fleming - The Law of Torts , the learned author remarked (at p 328) that the defence, in cases other than of express waiver, "is now but rarely successful" . Nevertheless it remains a defence to an action in negligence, as has been recognised by the legislature when it has seen fit to make express provision for the exclusion of its operation in claims attracting the provisions of the Motor Accidents Act , 1988 (s 76(1)) and the Workers' Compensation Act , 1987 (s 151O). 60 The onus of proving this defence is, of course, upon the defendants. 61 Mr Maconachie referred to the Insurance Commissioner v Joyce (1948-49) 77 CLR 39 and Roggenkamp v Bennett (1949-50) 80 CLR 292. Both cases concerned the consideration of the defence in the context of drunken driving accidents. In the latter case, in their joint judgment McTiernan J and Williams J adopted the definition of the elements of the defence of voluntary assumption of risk as stated in the second edition of Halsbury , Vol 23, p 716-718 as affording a convenient statement of principle. The essence of such statement is repeated in Halsbury's Laws of Australia (1994) Vol 19 at 300-140 where it is stated, concerning this defence: "It is a defence to an action in negligence if the defendant can prove that the plaintiff knew of and voluntarily accepted the risk of suffering injury or damage as a result of the defendant's negligence. However, it is not sufficient for the defendant to prove that the plaintiff ought to have known of the risk, or that the plaintiff merely perceived the existence of danger. The defendant must establish that the plaintiff: (1) was fully aware of the risk; (2) fully comprehended its nature and extent; and (3) voluntarily accepted the whole risk. The defence cannot succeed where the plaintiff was under any form of compulsion to accept the risk. The question whether the plaintiff's acceptance of the risk was voluntary is generally a question of fact and the answer to it may be inferred from his or her conduct in the circumstances. A person cannot be taken to have voluntarily assumed the risk of negligence on the part of another merely by engaging in a sport or pastime, even if the sport or pastime is inherently dangerous, or by accepting or continuing in employment even where such employment is inherently dangerous…" 62 The defendants have submitted that it has been established that the plaintiff was fully aware of the risk he undertook in attempting the last slide, that he fully appreciated the nature and extent of the risk in doing so and that he voluntarily accepted such risk. 63 Consideration of this submission commands very close attention to the evidence which the plaintiff gave. 64 The plaintiff had some limited experience in snow skiing. In 1994 he had spent a week with his aunt in the area of the snow fields and went skiing during that period, although not every day. In January 1995 he travelled to Canada and skied at Whistler for four to five days and in July 1995 he spent a further four days skiing at Perisher. This limited skiing experience, the plaintiff acknowledged, gave him an appreciation of the risk of physical harm if he struck a rock, and the importance of stocks and skis to control movement and direction. The plaintiff however had had before the day of his accident no experience in tobogganing and he had never been to the area where the accident happened before. In his evidence in chief, the plaintiff was asked this question and gave this answer (T30): "Q. Had you ever ridden a toboggan before? A. No. Q. Did you consider the activity that was about to the embarked on as hazardous, or dangerous? A. No." 65 The plaintiff first engaged in the activity using the sign in the knowledge given to him by Mr Lyndon that the students had used the signs in the same location in the previous year. He was also aware the signs had been used by another group of children from Ballina in the week before his accident. 66 The plaintiff said that the activity was undertaken from the one point for about fifteen to twenty minutes and that the track became faster and faster as the snow compacted and that it was after that that one of the children moved across to the other location from which the plaintiff set off on the slide in the course of which he collided with the rock. 67 The plaintiff was asked in his examination in chief as to his perception of the danger in sliding from the new position (T33): "Q. Did you see any danger ahead of you on that track? A. Not really. It was probably a touch steeper where the other part was, but not a hell of a lot steeper. Q. And fresher snow? A. Fresher snow." 68 The plaintiff said he was provided with no helmet. He gave the following answers on the question of instruction and warning (T35): "Q. Did you receive any advice about any aspect of the sliding down the hill on the advertising sign that you were about to engage in? A. No, there was [not] much instruction given to us at all. Q. Any warning? A. No, no warning. Q. Any prohibition? A. No." 69 It was certain of the responses which the plaintiff gave in the course of cross examination upon which reliance was placed in advancing the volenti defence. 70 When cross examined about his recollection of the area where the accident happened, the plaintiff agreed that the word "moderate" was an apt description of the nature of the slope. He agreed that he observed that there were boulders, including a very large boulder on the right hand side of the slope looking up from the point where Mr Lyndon first indicated the slope to him, and he could also see a number of boulders on the left. The plaintiff was then shown a number of photos which were tendered in evidence in the first defendant's case. The plaintiff was cross examined on these photographs and what was depicted in them, particularly the photographs that became first defendant's Exhibits 1B and 1C. The plaintiff agreed that looking up the slope as depicted in the photograph Exhibit 1B a very large rock, which was later marked with a cross, was plainly obvious and that so too were the rocks apparent at the bottom of the slope. He agreed that to walk up to the spot from which he and the party commenced to slide it was necessary to walk very close to those rocks on the left hand side and that he would have had to walk past and very close to the rock and the little tree circled on photograph Exhibit 1B. This smaller rock behind the tree was, of course, the rock with which the plaintiff collided. 71 The plaintiff was cross examined about the view from the position of the photographer for the purposes of photograph Exhibit 1C. This was a view looking down the slope and in this photograph the large rock was again marked with the cross and the tree with the smaller rock behind it was again marked with a circle. The path taken from the first sliding position, and the plaintiff went from there three or four times, he said was "pretty much straight down the middle" (T121). The plaintiff said that when he slid from the first position he could not remember passing "too close" to the large rock marked X, as to which he said it would have been "five or six feet" away. The smaller rock behind the tree would have been further away, "a lot more" (T118). The plaintiff agreed in cross examination at T121 that it was obvious that if he were to come into collision with obstacles shown in the photograph that he would do himself some injury. 72 When cross examined about the second track, the plaintiff agreed that it was different, "it wasn't hugely different but it was slightly different" . He said it would have been from a position probably two metres to the left looking down the slope and a little bit higher. He said "My memory is a little bit hazy but from what I remember it was back and to the left a bit" (T126). He was then asked to look at first defendant's Exhibit 1B, and, looking at the photograph, agreed that the starting point for the second track was to the right of the point from the first track and that the land sloped from left to right. He was then further cross examined on the photograph, first defendant's Exhibit 1C, and he said he was to the left of the position of the photographer in Exhibit 1C. In the cross examination that followed these questions were asked and these answers were given (T127): "Q. As you stood in the place in which you [were] contemplating making this slide to make the second track because the land sloped from left to right because it was steeper and because you were higher you knew, didn't you, that the course that you must take took you in a direct line to rocks X and O. You knew that, didn't you? A. I wouldn't say I knew it would take me that way. Q. You knew, as you told us yesterday, that when you got on the board gravity worked to take you down the hill, didn't it? A. I guess I assumed it would take me to the place we were going before, yeah. Q. But you were starting from a different point, higher and steeper, weren't you? A. It was a different place, yeah. Q. And as you looked down the hill what was directly in front of you from the position at which you were standing? A. Was a slope in front of me. Q. Were the rocks X and O. They were directly in front of you, weren't they? A. Yeah, they were, but also there was a lot of kids walking up and down that slope as well. I wouldn't have definitely wanted to be ploughing into them, that's for sure. Q. But you knew from the first course you had taken once you got on the board the shape of the land and the steepness of the hill controlled where you went? A. I knew I was going down the hill that's for sure. HIS HONOUR: Q. You what? A. That I would be going down the slope but I thought from this position, slide towards the track and follow the previous track down to where the bottom of the slope we had finished on the other occasions. MACONACHIE: Q. But that would have required you to make a turn, wouldn't it, a turn to the left? A. I didn't think that at the time. I didn't contemplate that. Q. You only had to look to see that that was so, didn't you. You had to make a turn to the left in order to get on to the track that was the first track? A. Yeah. I thought I would just go down that track and down the hill. Q. But you knew, didn't you, it was obvious that you had to turn to the left in order to get onto the track. You knew that from your experience. You knew that from what you could see in front of you? A. Yeah, I can see what you are getting at, yes. Q. But it was obvious, wasn't it, in order to get on the first track there had to be a turn to the left. It was obvious? A. I thought the path of the track would take me down that way. Q. You told Mr Wheelahan yesterday the second track that you intended to create would come into the first track in a Y formation. You told him that yesterday, didn't you? A. Yes, that's right. Q. In order for it to come into a Y formation rather than an X formation you had to make a turn to the left, didn't you? A. Yeah, but it was gradual. The Y wasn't like it wasn't turning sharply down the hill. Down the hill there is no sharp slopes that's for sure. Q. But in order for you to make a Y configuration of the two tracks rather than an X configuration there would have to be a turn to the left. That's obvious, wasn't it? A. Yes, okay, yeah." 73 The cross examination continued (T128): "Q. And it was obvious to you that if you made an X configuration of the two tracks rather than a Y that you would place yourself in a position where you might collide with either rock X or rock O? A. It was X it would have been, yes. Q. And you knew from the first four slides that you made that once you were on your way you had no control over the sign on which you were sliding. You knew that, didn't you? A. Well, there is some control because the track had been formed by us remained as you went down the hill." 74 In re-examination, the plaintiff was asked these questions and gave these answers (T182): "Q. You agreed with Mr Maconachie that in the photograph you could see those things he put to you? A. Yes, that's right. Q. Do you recall making any observation of that tree and that rock described there before you went up? A. No. Q. Later on at p 112 he asked you if the snow was in the same condition as shown in those photographs. 'You couldn't help but miss those rocks as you looked up the slope' and you said 'that's right'. Do you recall that? A. Yes. Q. Do you recall making any observation on the day of your accident of any rocks or hazards on that slope? A. No, not totally, no. Q. Mr Maconachie had you mark his exhibits with an X and a zero. You recall that the first being a big rock and second a smaller rock with a bush connected with it. Do you recall that? A. Yes. Q. Do you recall making any observation of that rock with the bush connected with it at any time before your accident? A. No. Q. Ultimately, it turned out that it was with this rock that you collided, is it not? A. Yes, it is. Q. And as you approached it on your descent were you aware or a rock connected with that bush as you described it? OBJECTION (MACONACHIE). ALLOWED. Q. Were you? A. No. All I was aware of, tried to duck under a branch and hitting something very solid." 75 The plaintiff was asked whether in his first slide he encountered any obstacle or perceived any risk or whether anything that occurred on that journey occasioned him any concern and the answers to those matters were in the negative. The plaintiff was then asked (T183): "Q. As you were about to embark on the run that led to your injury, did you perceive any risk to yourself in undertaking that journey? A. No, I didn't see any at all." 76 Later (at T184): "Q. Mr Maconachie asked you some questions about the second track that you were about to embark upon before you sustained your injury and he asked you whether you knew it was steep and you said that you did. A. That's right, yes. Q. Did you regard that as posing a risk? A. No, I didn't see it as a risk." 77 Also (at T184-185): "Q. He also put to you that you knew, in order to join the first track, that is the one created by you and others, that you would have to cross over the ridge created by the formation of the first track? A. Yes, that's right. Q. Did you regard that as posing a risk to you? OBJECTION (MACONACHIE). ALLOWED WITNESS: No, I didn't see it. HIS HONOUR: Q. How high was this ridge that was created? A. Not very. It was pretty soft. Q. Could you tell me in millimetres, centimetres, inches, feet? A. About a foot. Q. Both sides of the track? A. Yeah." 78 Then at T185: "Q. He said to you, this is Mr Maconachie, that lying face down on the advertising sign it was obvious to you that if you hit something you would hit it with your head. Remember him putting that to you? A. Yes. Q. Had you considered hitting your head? A. No, not at all. 79 The plaintiff gave evidence, to which I referred earlier and which I accept, that had he seen any signs forbidding toboggans in the area where he was injured he would not have taken part in the activity on the slope. 80 I have set out fairly extensively passages of the transcript in the plaintiff's evidence, appreciating that all such answers have to be viewed in the context of the whole of the plaintiff's evidence on the issue of liability. 81 The plaintiff was twenty-one years old at the time of this accident. The two teachers in charge of the excursion were present at the slope and Mr Lyndon certainly participated in the activity on it. Each of these teachers was perceived by the plaintiff to be in his late thirties or "forty maybe" and neither cautioned against restricting the use of the notices to any particular area. Mr Lyndon, for his part, said he did not see any risk of injury from the second take-off point. 82 I observe generally as to the evidence that the plaintiff gave that I found him to be a very truthful witness indeed. His answers were forthright and I perceived him to be completely honest. 83 Mr Maconachie submitted that in the circumstances and at the time that this accident happened, the first defendant owed to the plaintiff no duty at all. This was because the plaintiff was a mature person who was a very competent sportsman with skiing and surfing knowledge who had an appreciation of obstacles and the harm that they could cause. He had had ample opportunity to evaluate the conditions on the slope and that by the time he undertook the last slide he knew all that he needed to know about the hazards of that undertaking. Any obligation to warn or to instruct had been discharged and no further duty was owed to him. That submission I reject. I am satisfied that the plaintiff was owed a continuing duty of care for so long as he was on the slope for the purposes of the excursion and under the control of Mr Lyndon and Mr Atkins. I am also satisfied that the first defendant breached its duty in the ways that I considered earlier in this judgment. 84 Nor am I persuaded that the defendants have made good the defence of voluntary assumption of risk. Accepting as I do the truthfulness of the plaintiff's responses that invite a contrary conclusion, the defendants have not proved that the plaintiff was fully aware of the risk, having a complete understanding of its nature and its extent. Further the defendants have not proved that the plaintiff voluntarily accepted the risk. I do not consider that the plaintiff was alert to the risk of colliding with the rock he struck, or that he was alert to its presence, at the time he set off down the slope. 85 This defence therefore fails. CONTRIBUTORY NEGLIGENCE 86 Each defendant submitted in the event that the defence of voluntary assumption of risk was not proved, the evidence established that the plaintiff was guilty of contributory negligence, and indeed Mr Maconachie submitted that if the first defendant was found to be blameworthy, the plaintiff was equally culpable. 87 Did the plaintiff fail to exercise reasonable care for his own safety? 88 I reviewed earlier the plaintiff's experience as a sportsman and his limited experience on the snowfields. That experience included the journeys earlier undertaken down the slope on the real estate sign. Whilst the plaintiff said, and I accept, that he did not think about this, he ought to have appreciated from his previous experience that once he began to slide he was dependent upon the forces of gravity. He could not steer the sign, nor could he arrest its fall. The plaintiff was aware of the presence of obstacles beside the track first used and he was aware that to strike a rock travelling head first could cause him injury. It seems to me that in the exercise of reasonable care the plaintiff ought to have appreciated that in sliding from the new and higher spot with the intention of joining the track earlier made, there was a risk that the sign would not then follow the earlier track but pass through it or leave it, so as to encounter any obstacles in the general direction which the sign was facing at the point of commencement. Further, I am satisfied that by reason of his earlier journeys up and down the slope, he ought to have become aware not only of the large rock marked X on the photo being first defendant's Exhibit 1C, but also of the tree sheltering the small rock circled in that photograph, and of the small rock itself, and of the risks they might present should the sign not follow the earlier track but pass through it or leave it. Whilst it is to be recognised that it is easy to be wise with the benefit of hindsight, it seems to me that the plaintiff did not attend to what he was about to do before setting out on the final slide with that degree of care required of the reasonable person acting in the interests of his own safety, and I am satisfied that this lack of due care contributed to the harm suffered. 89 I therefore find contributory negligence to be proved. APPORTIONMENT OF FAULT 90 For the reasons expressed, I have found each defendant to be negligent in a causative sense and the plaintiff to have been guilty of contributory negligence. Therefore the question of apportionment must be addressed. 91 Section 10(1) of the Law Reform (Miscellaneous Provisions) Act , 1965 requires that I determine, having regard to what I perceive to be "just and equitable" , to what extent "the damages recoverable…shall be reduced having regard to the plaintiff's share in the responsibility for the damage" . The plaintiff's share of responsibility is to be assessed against the totality of the negligence of the defendants: see Barisic v Devenport (1978) 2 NSWLR 111 and Fitzgerald v Lane (1989) 1 AC 328. 92 In all the circumstances I have reviewed, it seems to me to be just and equitable that the damages which the plaintiff would otherwise have recovered should be reduced because of the finding of contributory negligence by twenty percent. 93 This brings me to the apportionment issue between the defendants. Each defendant cross claimed against the other, seeking contribution or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act , 1946, but neither defendant limited its cross claim to this. 94 In its cross claim against the second defendant, the first defendant also pleaded breach of insurance and indemnity provisions contained in the deed of lease, Exhibit L. However, for the purposes of its cross claim, the first defendant bore the onus of proving that the plaintiff's accident happened at a location that attracted the operation of the provisions of the lease. As earlier recorded, I have been unable to determine where the accident occurred in relation to the boundaries of the leased area, and the first defendant has not therefore established that the provisions of the lease pleaded in the cross claim have been enlivened because of where the accident occurred. Indeed, Mr Maconachie did not seek to argue to the contrary in the course of his thorough final submissions. 95 The first defendant further pleaded in its cross claim breach of the terms of the contract under which the excursion party entered upon Blue Cow Mountain. According to the particulars in the cross claim, this contract was partly oral and party written and the writing was particularised as being contained "in a receipt and a ticket or tickets issued to the first defendant's agent, Mick Endres." The contract was denied in the second defendant's defence to the cross claim, Mick Endres was not called, and no attempt was made by the first defendant to prove the receipt or the terms of any ticket or tickets relating to the entry of the party into the ski tube or on to Blue Cow Mountain. Once again, Mr Maconachie addressed no final submissions to the contract pleaded in paras 5 and 6 of the first defendant's amended cross claim. 96 For its part, the second defendant in its cross claim pleaded reliance upon the terms it claimed to be implied in the licence agreement, Exhibit M. The land to which this licence related adjoined the land the subject of the lease, Exhibit L. The second defendant bore the onus for the purposes of its cross claim of establishing that the accident occurred within the licensed area. Just as I am unable to determine whether the accident occurred in or outside the leased area, so too am I unable to determine whether the accident occurred in or outside the licensed area. 97 Moreover, Mr Nock did not, in his final submissions, seek to present any argument as to why the implied terms pleaded ought to be regarded as terms of the licence, nor did he seek to rely upon the licence for the purposes of the cross claim. 98 Accordingly it seems to me, assessing the evidence presented, that the proper approach to the issue of contribution as between the defendants is to determine the competing cross claims as claims pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act , 1946, bearing in mind the findings in negligence I have previously expressed as against each defendant. 99 I have earlier concluded that it is just and equitable that the plaintiff's damages should be reduced by twenty percent, and the plaintiff will be entitled to recover judgment against the defendants for the total damages I will assess, less twenty percent. On the matter of contribution between the defendants, I must have regard to the extent of the responsibility of each defendant for the damage suffered by the plaintiff. Considering the findings in point, I have concluded that the responsibility of the first defendant for such damage is greater than that of the second defendant. On the matter of contribution between the defendants, the responsibility of the plaintiff is omitted: see Barisic v Devenport (supra) at 129. I consider it to be just and equitable that contribution between the defendants for the amount of the damages recoverable by the plaintiff be borne as to sixty percent by the first defendant and as to forty percent by the second defendant. DAMAGES 100 The plaintiff was born on 13 February 1974. He is presently twenty-seven years of age. 101 The plaintiff did not lose consciousness after this accident but immediately experienced loss of feeling. He was taken down to the first aid centre at Blue Cow Terminal and then to the medical centre. From there he was transported to Cooma Hospital and then to Prince Henry Hospital where he came under the care of Associate Prof Jones in the Spinal Injury Unit. The plaintiff was found to be a high level quadraplegic with all the tragic consequences of this condition. 102 The plaintiff was in Prince Henry Hospital for a period of approximately six months, being discharged on 7 June 1996. Two days after his admission on 6 September 1995 the plaintiff underwent surgery in the nature of a decompression and spinal fusion procedure from C4 to C6. It was noted on operation that there was a burst fracture of the fifth cervical vertebrae and there was a fragment compressing on the spinal cord, tearing the cover of the cord and allowing leakage of cerebro-spinal fluid. An MRI scan on 6 October 1995 indicated generalised oedema and spinal cord damage in the area from C3 to C7. The plaintiff remained in intensive care for approximately two months and for some seven weeks he was unable to breath without the aid of a ventilator. A tracheotomy tube was in place until late November 1995. 103 A number of reports were tendered from Prof Jones and it is possible to summarise briefly from these reports the plaintiff's progress from the time he was discharged from intensive care until his ultimate discharge from hospital in June 1996. The plaintiff was managed in the acute spinal unit where his neurogenic bladder and bowel required intensive therapy. Various medications were required for the management of the bladder and for bowel care. Ultimately the insertion of a supra pubic catheter was necessary. The plaintiff experienced spasms and this compromised his mobility in a wheelchair. Eventually the spasms were controlled by the use of Baclofen inserted intrathecally by means of a pump. 104 Whilst the plaintiff was in Prince Henry Hospital he experienced an episode of dysreflexia which happily was quickly brought under control. There have been a further three such episodes since the plaintiff's discharge from hospital. 105 There have been many medical reports tendered in evidence. It is unnecessary to review them all because there really can be, and there is, no dispute about the nature of the injuries suffered or the resultant disabilities. 106 The plaintiff was assessed from time to time by Prof Jones following his discharge from hospital. Prof Jones has in consequence provided a number of reports. I need not set out their content exhaustively, but it is desirable that I record part of the content of Prof Jones' report dated 3 November 1998, which report followed the doctor's assessment on 26 October 1998. I accept Prof Jones' assessment as being accurate. In November 1998 the plaintiff's position was as follows: "David has been in reasonable health. He has a limited ability to feed himself. His bowels are managed by oral faecal softeners and second daily bowel care, and his bladder is managed by suprapubic catheterisation which is changed each month by a community nurse. He has had no symptomatic urinary tract infections, although there are occasional sensations of achiness and increasing spasm for which he will be treated with oral antibiotics. These episodes occur about once every three months. His skin has generally been good although he did have an ulcer under his right forefoot. He had an episode of dysreflexia once during the last year which required admission to hospital and his symptoms at that time were a thumping headache. He said that the episode was caused by a kinked catheter." 107 Prof Jones went on to address the plaintiff's personal care: "David is essentially dependent on virtually all personal care on others and whilst he might clean his teeth, he doesn't bother, although he might be capable of doing it with an electric toothbrush. He doesn't shave himself and he is dependent on others for washing, drying and dressing. He would be capable of accessing a telephone if it were appropriately set up." 108 I observe that during the hearing I noted that the plaintiff when in Court showed a very limited ability to grip with the right hand. The plaintiff told Dr Buckley in October 1998 that he could pick up a biscuit or a piece of paper if it was placed in exactly the right place in his lap. However, I accept that the plaintiff needs the assistance of others to eat and to drink and he drinks with a straw from a cup when the cup is held before him. There were many instances during the trial when the plaintiff needed a drink and he demonstrated a dependence upon his carer to hold a cup in front of him so that he could drink from a straw. 109 The attendant care regime in place in October 1998 was noted in the report: "David has attendant care for 2½ hours on enema days and for 1½ hours on other days. His parents will put him to bed and this takes about half an hour. His cooking is attended to by his mother and clothes washing and housekeeping are done by the Homecare personnel. Shopping is done by his mother and the gardening by his mother and father. Transportation is undertaken by parents, carers or friends." 110 Prof Jones made these findings on physical examination: "I noted again loss of pinprick sensation from the high shoulder level on the right and the low shoulder level on the left. Elbow flexors were to about 4 out of 5 bilaterally; wrist extension was 3+ on the right and 0 on the left. There was no other function in the upper limbs. He could abduct his shoulders to about the horizontal position. There was no marked spasticity but there was some clonus in the legs." 111 In his conclusion, Prof Jones stated in part: "There has been no deterioration in his function and his requirement for personal care assistance remains unchanged. His need for continuing review is as described and there have been some complications in his spinal cord management which were predictable and are within the prescription of an average of two weeks per year admission to hospital for the management of those various complications, and for the management of his suprapubic catheter and implanted Baclofen pump. There have been no significance changes in his status since last seen and in particular there has been no improvement nor deterioration. His condition is stable and there will be no improvement with respect to his quadriplegia. There will be a need for vigilance to ensure that his medical condition remains stable and there will be intermittent complications along the lines described. He will have intermittent urinary tract infections, an occasional episode of dysreflexia and there may be episodes of decubitus skin ulceration. I have described my findings on 'Physical Examination' confirming a high level quadriplegia with essentially a C5 level with a little wrist extension. This extension of the wrist unfortunately will not enable David to be an efficient driver of a motor vehicle and he will therefore require transportation within the community. I have opined as to his ongoing care requirements. He will need review by his spinal specialist at yearly intervals and on average will need to see a general practitioner about four times per year. I have described his various admissions to hospital for dysreflexia and chest infection. There have been no other incidents which would affect his level of disability. His condition is permanent and his prognosis for life expectancy is normal less 10-15%." 112 The plaintiff has lost sexual function. Prof Jones opined in February 1997 that the plaintiff "has no sensation in the perineum and would obtain no psychogenic erections, nor would he be able to have any normal form of sexual intercourse with orgasm. The efficient use of the sexual organs is therefore zero." 113 I accept that assessment. Prof Jones adverted to the plaintiff's need for sexual counselling and assistance in fertility issues. 114 The evidence satisfies me that the plaintiff can hope for no improvement in his condition in the future. This accident has undoubtedly had far-reaching consequences for the plaintiff who, before the accident occurred, was a fit and healthy young man who was extremely interested in and competent at a variety of sports. The plaintiff's major interest was in cricket and he played at first grade level at Ballina for a number of years. However, his sporting interests were not restricted to cricket. He played tennis and rugby league and he coached in cricket and also did some part time coaching in tennis. Other sporting interests he pursued included touch football, he rode a push bike and he jogged regularly and extensively. The plaintiff attended gymnasium and he swam and he surfed. The nature of the injuries and resultant disabilities have been such of course as to prevent him from pursuing any sporting activities, although remarkably he has continued to coach at the Ballina Cricket Club. 115 I shall deal with the plaintiff's intended career and the impact of the accident upon this, and other features of his life, more fully when I am considering the various claims advanced on behalf of the plaintiff. All those features I take into account in arriving at an assessment for the non economic aspects. I take into account the plaintiff's almost complete dependence upon others and the effect of this upon his human dignity. 116 There can be no question but that this claim calls for a very large allowance for the non economic aspects of general damages. Mr Wheelahan submitted I should allow $400,000 under this heading; Mr Maconachie submitted that $300,000 would be appropriate. In doing so he asked me to bear in mind that the case is not one that involves intellectual impairment, that the plaintiff has good spasm control, that he is able to go to the club, to the movies and to the cricket and that he is able to use a computer. Of course I bear the evidence in mind about those matters, together with all the features of the plaintiff's lifestyle since the accident, and as I perceive it will remain in the future. Nevertheless, the impact of the accident has been and will continue to be devastating for this plaintiff. 117 I award the plaintiff by way of general damages, the sum of $375,000. Interest on past allowance 118 Mr Maconachie submitted that I should apportion only one third of my allowance to the past, but it seems to me that such an apportionment would not give true effect to the impact of the injuries on the plaintiff's lifestyle and what the plaintiff has had to experience in endeavouring to adjust since September 1995. 119 I regard fifty percent as being a fair apportionment for the past. However, in considering the plaintiff's claim for interest on the assessment I have reached, and for other purposes which I shall later address, I must take account of payments which the first defendant has made to and on behalf of the plaintiff. These payments exceed $900,000 but of particular significance to the issue of interest under this heading is that the payments included a sum of $226,050 paid to the plaintiff on 9 December 1997 for non economic loss. But for this payment I would have awarded interest at two percent on $187,500, that being half the amount I have awarded for the non economic aspects. That figure would have attracted interest of just under $21,000. Since the sum paid on 9 December 1997 exceeds the allowance for the past and the interest it would otherwise have attracted, I allow no interest for the sum awarded for the non economic aspects of general damages. The plaintiff's life expectancy 120 Before dealing with the various heads of the claim, I propose to address the issue of the plaintiff's life expectancy, about which a contest arose at the hearing. This was a matter addressed in the medical reports introduced into evidence and it was also the subject of oral evidence from Prof Jones and Dr Buckley. 121 Prof Jones reported in May 1997 that the plaintiff's life expectancy was normal less about ten percent. Later, in the report already referred to of 3 November 1998 Prof Jones expressed the life expectancy as normal less 10-15%. 122 Prof Jones gave oral evidence and in doing so was asked to take into account the plaintiff's health and history since October 1998. Having done so, Prof Jones said (T409): "I believe that on the basis of David's motivation for life, his own interest in his own welfare, the excellent care which he has received and will receive, that his life expectancy will be close to normal less ten percent." 123 Prof Jones was cross examined on the question of life expectancy and upon the significance of a study conducted by Prof Yeo and others into the question of mortality following spinal cord injury. The content of that paper did not alter Prof Jones' assessment of the plaintiff's life expectancy earlier expressed, nor does such content occasion me any disquiet in accepting Prof Jones' opinion firmly expressed that the plaintiff's life expectancy is normal less ten percent. 124 Prof Jones' opinion coincides with that of Dr Buckley who assessed the plaintiff in October 1998 and who determined for the purposes of his report dated 24 December 1998 that the plaintiff's life expectancy "could best be considered as ninety percent of the years that would normally remain." Dr Buckley was cross examined extensively upon Prof Yeo's study, Exhibit H, but he did not resile from the opinion expressed in his report. 125 Accepting as I do what Prof Jones and Dr Buckley opined as to life expectancy, I find that the plaintiff's life expectancy is ninety percent of normal. 126 How does this translate in terms of years? 127 This is a question which gave rise to an argument novel in my experience. Mr Wheelahan submitted that the normal life expectancy tables based upon historical data (and I refer to these as the historical tables) are unduly conservative, and he submitted a fairer approach was to adopt the projected mortality rates (and I refer to these as the projection tables). The trend is for people to be living longer. Life tables are based on those who have already died, but those who are now living, it is argued, will have a better life expectancy. 128 The defendants, on the other hand, have submitted that the proper approach is the approach that has traditionally been adopted in the courts, that is to use the historical tables. 129 The argument is not insignificant. Its importance is well illustrated by comparing the figures which the tables produce for a man of the plaintiff's age: (i) if the historical tables are used, the normal life expectancy on the available tables is 50.2 years. The life expectancy reduces in the plaintiff's case, by reason of the ten percent loss I have found, to 45.2 years; (ii) if the projection tables are used, the life expectancy for a person of twenty-seven years of age is 54.5 years. This reduces in the plaintiff's case to forty-nine years. 130 So, it is to be observed, there is a difference of four years which would have a real effect on the calculations for lifelong costs to be provided for here. 131 Mr Wheelahan was able to take me to no decision, in which reasons were expressed, for the adoption of the projection tables, and it was acknowledged that the historical tables have been traditionally adopted in the past. I was referred to a paper published at 1998 6 Torts Law Journal 85. 132 No evidence was called in this case concerning the two sets of statistics. Whilst I do not regard the argument for the projection tables as being unattractive, I have decided that I should employ the tables traditionally used in these matters, leaving it to an appellate court to determine, if such be considered appropriate, that the projection tables should be adopted. Any set of tables can only be a guide, and I propose to approach my task guided by the historical tables and providing for the plaintiff's needs for a further 45.2 years, since I determine such period reflects his life expectancy. Loss of earnings and loss of earning capacity Past 133 (a) As a teacher : As I remarked earlier, the plaintiff was, in September 1995, in his third and final year of his course of study for a diploma of education in primary teaching. The claim is advanced on his behalf that but for this accident the plaintiff would have completed this course in November 1995 and that he would have commenced full time teaching on 1 February 1996, with annual progression up the teaching ranks thereafter. Had this occurred, the plaintiff would have earned to date the sum of $134,516 nett as a teacher. This emerges from the report of Mr David Keep (Exhibit E). 134 It had been the plaintiff's aim to undertake a physical education degree course and he repeated the Higher School Certificate in the hope of gaining the required results for acceptance into that course. Unfortunately he was unsuccessful. It was then that he decided to qualify to be a primary school teacher. The plaintiff's grandfather had been a headmaster and I accept that the plaintiff had the resolve to pursue a career in primary school teaching. Moreover, pre-accident assessments of his progress towards his chosen career were encouraging. The plaintiff, as part of his course of study, was required to undertake practical teacher training and Mr Lyndon, who was required to supervise periods of the plaintiff's practical training, assessed the plaintiff favourably. In his oral evidence Mr Lyndon said (T215): "I found David very professional in his approach to his efforts in the classroom and his rapport with the students was excellent." 135 Mr Lyndon said, and I accept, that the teachers who had made earlier assessments of the plaintiff's teacher training made assessments that were similar to his. 136 I am satisfied that the plaintiff would have completed his course in 1995 and that he would have pursued a career in primary school teaching had the accident not happened. 137 Mr Maconachie submitted that I should allow only half the sum calculated by Mr Keep because the plaintiff would probably have gone overseas for two years on a working holiday. In any event, it was not to be assumed that the plaintiff would obtain a position as a teacher immediately following his graduation. 138 I do not consider that it would be reasonable to reduce the allowance for past economic loss to the extent for which Mr Maconachie contended. The plaintiff had no firm plan to go overseas although he acknowledged he had thought about going to Canada to work in the snowfields for a while. The evidence would not support a finding that the plaintiff was going overseas for two years following graduation and I make no such finding. The plaintiff said, and I accept, that he was prepared to move into the country away from Ballina if offered a teaching position elsewhere and I think it more probable than not that he would have started work as a teacher soon after graduation. Even if he did take a working holiday overseas, he would have earned money whilst doing so. 139 I propose to allow for the claim for the past, with some discount to allow for the possibility of delay in obtaining teaching work and for the possibility of some time being spent overseas without remuneration. In the allowance I make I do not ignore the fact that the plaintiff did a little paid work for the department in 1998 and in 1999. 140 I allow for past loss of earnings the sum of $120,000. 141 (b) As a tennis coach : The plaintiff's mother was a prominent tennis player who, from 1988 onwards, was a full time coach at the Ballina Tennis Club. Mrs Beck engaged the plaintiff to assist her after school and on Saturday morning. Mrs Beck's unchallenged evidence was that the plaintiff was a very good coach who was "really warm" with the children and who "also earned their respect" . Mrs Beck said that but for the accident she would have been able to continue to employ her son indefinitely, providing him with an hour or two each afternoon and one or two hours each Saturday morning. The evidence as to what the plaintiff would have been paid was vague but Mrs Beck thought it would be approximately $15 per hour. 142 The claim advanced for the past for loss of earnings as a tennis coach has been qualified in excess of $16,000. Mr Maconachie submitted that that claim is excessive and that no more than $5000 ought to be allowed. 143 I would accept that had the plaintiff found work at Ballina as a teacher he would have continued to do some tennis coaching, although he had many other interests of a sporting type and cricket was his first interest. I think it unlikely that he would have done six hours coaching per week if the accident had not happened and had he remained in Ballina but that he would have continued to coach to some extent. It cannot be assumed though that the plaintiff would have found a teaching position in Ballina and that had he been moved to some country area there would have been a real opportunity for regular coaching. 144 Finding as I do that the plaintiff had the capacity to work as a tennis coach, and finding also as I do that he would have utilised this capacity to some extent, it seems to me that a fair allowance for the past is $9000. That sum I include in the assessment of damages. Future 145 (a) As a teacher: I consider it to be more probable than not that had the accident not occurred the plaintiff would have remained in the teaching profession throughout his working life. 146 Mr Keep has calculated (in Exhibit E) what the plaintiff would have earned as a primary school teacher, assuming his progression on an annual basis to the position of Step 13/Senior Teacher and that he remained in the profession thereafter to age sixty-five. This approach I find to be reasonable in endeavouring to determine what the plaintiff would have earned in the future had he not been injured. On this approach, Mr Keep has calculated that the plaintiff would have earned to age sixty-five the sum of $952,478. 147 Does the plaintiff have any real residual capacity? 148 Mr Maconachie called the present headmaster of Southern Cross School and Mr Gambrill, a staff welfare officer with the Department of Education. 149 Before considering the evidence that these two witnesses gave, I refer to the plaintiff's efforts to pursue his teaching calling. On fourteen occasions, the first of which was on 28 May 1999, the plaintiff went to the school at Ballina and did some work, the details of which he recorded in his diary (see Exhibit J). On the occasions in question, the plaintiff did not stay long, although the hours of attendance varied. He was paid for the work that he did on a casual basis on seven of the occasions mentioned. The other attendances were voluntary. The plaintiff was not asked to work again after the occasion of 28 May 1999. 150 The evidence of Mr Gambrill and of Mr Campbell is to be viewed against the above background. 151 One of Mr Gambrill's tasks as staff welfare officer is to endeavour to rehabilitate staff with disabilities. Southern Cross School is well equipped for such rehabilitation. It is wheelchair accessible and it is on a flat site. Mr Gambrill said he was asked to see the plaintiff in April 2000 to assess him for teaching. Following his assessment, Mr Gambrill prepared a report which became the first defendant's Exhibit 4. Mr Gambrill concluded that the plaintiff ought to be offered employment in the year 2001, teaching twelve hours per week, being provided with appropriate technology to assist him. Mr Gambrill further considered that the work to be offered ought to be increased to fifteen hours per week in 2002. It is important to bear in mind, as Mr Gambrill acknowledged, that it is not his province to offer employment; that is the province of the Director of Staffing following application for employment and assessment. 152 Mr Campbell has been the principal of Southern Cross School for the last seven years. He spoke highly of the plaintiff and he said that he regarded Mr Gambrill's proposal as a feasible one. If employed, the plaintiff would be paid at the rate of about $44 per day and he said that he would have no hesitation in supporting the plaintiff's employment at the school. However, it is again important to acknowledge, as Mr Campbell did, that he was not in a position to offer the plaintiff employment; that was the responsibility of staffing personnel. 153 The plaintiff, who impressed me as a young man of courage and determination, expressed reservations as to whether he would be able to work the sort of hours that Mr Gambrill envisaged, even if such work was to be offered to him. 154 It is unfortunate that the efforts which the plaintiff made to ease his way into teaching in 1998 and 1999 were not further encouraged. However, the fact is that they were not, and as I undertake my task to assess appropriate damages in this case, I do so at a time when no offer of employment has been made to the plaintiff. Whilst I do not doubt the sincerity with which Mr Gambrill and Mr Campbell gave their evidence, I am not persuaded that it is at all likely that the plaintiff will be offered any work with the department in the future. Indeed, I consider that to be most unlikely. In approaching the assessment of an appropriate allowance for future loss of earnings, I do so upon the basis that it is highly unlikely that the plaintiff will work again as a primary school teacher. 155 The plaintiff is developing computer skills, although the difficulties in his using a computer with his physical handicaps are obvious. So far, however, he has managed to prepare two web site designs, for one of which he was paid $600 and for the other he was paid $500. This work took him, in all, something in the order of twelve months to complete. The plaintiff is not the sort of person who, in my assessment of him, is likely to sit idle in the future if he can avoid it, and I consider it to be likely that he will endeavour to use his computer skills for economic gain. Any allowance for this residual ability to earn must be modest and it ought only be provided for, in my opinion, to about the age of forty-five years. 156 Mr Keep's calculation requires discount for the vicissitudes. The customary fifteen percent discount is appropriate but in addition I propose to make some further deduction to bring into account what I regard as the plaintiff's modest ability to earn, of the order of $20 per week, until the age of forty-five years. I have concluded that an appropriate allowance for loss of earning capacity from teaching for the future is $800,000, rounding my assessment off . 157 (b) As a tennis coach : The claim which the plaintiff makes for future economic loss as a result of being unable to coach tennis is in excess of $25,000. Mr Maconachie has submitted that the plaintiff ought only be allowed the sum of $10,000. 158 The same sort of considerations to which I adverted in relation to the claim made for the past would continue to apply in the future. Some provision ought to be made in recognition of the loss of capacity in this regard and the recognition that the capacity would more probably than not have been employed to some extent, but to allow the claim in its entirety would, to my mind, be over-generous. Having reflected on the competing submissions, I regard Mr Maconachie's approach to be the appropriate one and I therefore allow $10,000 for loss of earning capacity under this heading. 159 In summary then I make the following provision for loss of earnings and loss of earning capacity: Claim for the past: Teaching $120,000 Coaching tennis 9,000 $129,000 Claim for the future: Teaching $800,000 Coaching tennis 10,000 $810,000 $939,000 Interest on the claim for past economic loss 160 The plaintiff received benefits in the way of periodic benefits in the past totalling $42,609 and these are to be brought into account before provision is made for interest. 161 It has been submitted that the appropriate average rate for interest for the period in question is 5.3%. Rounding the calculation off, I allow for interest on the claim for past economic loss the sum of $25,560. Fox v Wood 162 Because the plaintiff has received past benefits, it is agreed that a Fox v Wood allowance is required in the sum of $3905.30. I therefore include that figure in my assessment. Lost superannuation benefits 163 A claim is made for loss of superannuation entitlements, based upon the plaintiff's loss of earnings as a teacher to age sixty-five years. This has been calculated by Mr Keep in Exhibit E as follows: For the past $9,946 For the future $98,920 164 The allowance calculated by Mr Keep for the past calls for adjustment to reflect the lesser sum I have awarded for such claim and the sum calculated for the future must be adjusted for the vicissitudes. Bringing these factors into account, I allow for past loss of superannuation benefits (rounding the calculation off) the sum of $9000 and for future loss of such benefits the sum of $84,082, a total of $93,082. Future loss of long service leave entitlement 165 A claim is made, as calculated again by Mr Keep in Exhibit E, for future loss of long service leave entitlement. This claim is based upon the assumption that no part of these entitlements would have been taken prior to retirement age and therefore that this amount would have been paid out as a lump sum at retirement age. Mr Maconachie has submitted that this claim should be rejected because there is no evidence before the Court to support the assumption that no part of the entitlements would have been taken prior to retirement age. In my opinion that submission is correct and I also accept, as Mr Maconachie submitted, that there is an element of doubling up involved in this claim having regard to the claim already provided for in respect of loss of earning capacity for the future. 166 I make no allowance for this claim. Out of pocket expenses 167 The out of pocket expenses are agreed upon in the sum of $635,332.31. That sum I include in my assessment. No claim has been advanced for interest on that figure and I note that the first defendant has previously paid $199,030.22 for home care costs and has also made substantial payments for carers. This leaves, however, the claim for gratuitous assistance provided in the past and in relation to this claim interest on the allowance is sought. Claim for past gratuitous assistance 168 The plaintiff has advanced a claim for past assistance gratuitously provided by the plaintiff's mother in the sum of $412,941. That sum has been calculated in the actuarial report of Carroll Humphreys Ranson of 15 December 1999 (as updated). The claim has been costed upon the basis that Mrs Beck provided twelve hours care for her son whilst he was in hospital and twenty-four hours care thereafter. 169 The defendants have opposed the claim made for the period that the plaintiff was in hospital upon the basis that the plaintiff was provided by the hospital with adequate nursing care throughout and anything that Mrs Beck did was not "reasonably necessary" . 170 Mrs Beck gave evidence, which I accept, that for the first ten days after the plaintiff was taken to Prince Henry Hospital Mrs Beck stayed with friends at North Bondi. Then accommodation was obtained at Rotary House attached to Prince Henry Hospital and Mrs Beck stayed there until about August 1996. The last few weeks that her son was in hospital Mrs Beck stayed with her sister at Camden and commuted daily to the hospital. Mrs Beck gave evidence that whilst her son was in hospital she attended on him for periods in excess of twelve hours per day. The claim is, as I have observed, for twelve hours care. 171 The plaintiff's mother gave the following evidence concerning her care for the plaintiff whilst he was in intensive care (T193): "Q. And when he was in intensive care, what were you doing during the times that you were at the hospital? A. Mostly giving moral support, reading papers to him. Just being there with him. Holding his hand. If he needed anything, or not so much in intensive care, just there with him. It was very important. He was really bad, yeah. Q. Had you been given any advice about what it was you were to do, or why you were to do it? A. Only just from the nursing staff, just to say to be there and not tell him anything about ever being able to walk again. They said don't give him any false hope. That was probably about all they said. Q. You were with him all day every day when he was in intensive care? A. Yes. Q. Just doing those routine things for him? A. Yes." 172 Mrs Beck was not cross examined to suggest that she did not give the plaintiff the support she described in the above evidence and I accept that Mrs Beck did what is there described. It is not to put in doubt the quality of the nursing care given to the plaintiff whilst he was in intensive care to recognise the importance in what the plaintiff's mother was doing during this period. Nothing a nursing sister could have done in this intensive care period could have afforded a substitute for the loving support of the plaintiff's mother in satisfying what I readily accept to be an urgent psychological need. I am satisfied that the claim made for the assistance of the plaintiff's mother in the period that the plaintiff was in intensive care has been established and that what the plaintiff's mother did for the plaintiff was reasonably necessary in circumstances which attract a right to compensation. 173 When the plaintiff left intensive care, the plaintiff's mother described her care in the following passage (T194): "Q. When he was discharged from there into the ward, what was your daily routine with regard to him then? A. When Dave went over to the spinal unit, which firstly he went to acute and he was still, you know a very sick boy. Then the only reason he was out of intensive care was because he finally got off the respirator. I was there to do all those little things for him, like scratch his head and you know, just all those little things. Clean his teeth, comb his hair. I think while he was in hospital, you have got to understand that the nursing staff is just not there and they can't do all those little things for all those guys. So you know, it was very important that I was there. Just to help out." 174 Mrs Beck went on to describe her assistance of her son when he began to use a wheelchair (T194): "Q. Did you have any part to play, when he first started to mobilise in the wheelchair? A. Well, for starters, Dave couldn't use an electric wheelchair. He still had no movement whatsoever. So when he was in a, just ordinary wheelchair, I had to push him around, yeah. Q. Where did you push him? A. Prince Henry's a pretty nice hospital. It's got nice grounds. So we would just go out for a little bit of a walk, or out on the verandah. They have got some shops there. We would just walk up to the shops. Q. There were occasions when you were able to take him out? A. Yes. Q. You took him to the pictures for example? A. Yes, Eastgardens was probably 10, 15 minutes away from Prince Henry and we used to go to the pictures, or just go you know, go shopping. Get out of the hospital." 175 The plaintiff informed Ms Hogan of the Southern Cross Community Healthcare (see first defendant's Exhibit 16) that he had psychological support from the nursing staff, from fellow patients and members of the Paraquad Association whilst hospitalised. Even allowing that this was so, I perceive Mrs Beck to have met a real need for so long as the plaintiff remained hospitalised in addressing his psychological well-being. I am satisfied on the balance of probabilities that it was reasonably necessary for the plaintiff that his mother give regular daily support in the sort of activities Mrs Beck described in her evidence and in providing a loving and supportive presence. It seems to me to be reasonable to allow for six hours per day for the period in hospital after the plaintiff was moved out of intensive care. On the figures particularised, and there is no contest about the mathematics of the plaintiff's claim, the finding I have made calls for a reduction of $18,588 in respect of the claim for the post intensive care period. 176 The plaintiff has, in the period since 7 September 1996, been cared for by his mother and a claim is made for twenty-four hours per day care up to the present time. Once again there is no issue about the mathematics of the costing but there is an issue as to the reasonableness of the claim. Mr Maconachie submitted, in my view correctly, that the claim as presented does not make allowance for the fact that the plaintiff's mother is relieved for fourteen hours per week when carers provide for morning assistance for the plaintiff. Provision of that care since the date of the accident, employing an hourly rate of $13, calls for a deduction from the amount otherwise allowable for the mother's care of $53,052. I do not understand Mr Wheelahan to have challenged the accuracy of Mr Maconachie's mathematics on this issue. Mrs Beck is also relieved for a further eleven hours each week. Her evidence (T196) was that on two days per week substitute carers allow her the opportunity of relief, and she plays golf and shops. Mrs Beck said that this routine has been in place "pretty much" since the move to Tuckeroo Drive in March 1997. On these two days Mrs Beck's time of extra relief is from "9.30 am or 10.30 am to 3.30" (T198). Bringing this into account calls for a further deduction of this claim by eleven hours per week since March 1997. On my calculations, this reduces the claim by a further $29,744. 177 There is one further matter requiring consideration for the claim for the past. Ms Hogan's report, which I earlier mentioned, provides for two rates of care costs. There is a classification of inactive night duty which applies where the carer is required to provide no more than two attendances on the patient during the eight hour period. The rate of remuneration referable to inactive care is approximately half the active rate, and it is Mr Maconachie's submission that for the period since the plaintiff has been at home being cared for by his mother the inactive rate should be applied for eight hours each day. 178 Mrs Beck gave the following evidence as to what is required of her during the night (T196-197): "Q. Speaking of the night time, what is the position with regard to David being turned? A. I turned him always once a night but quite often Dave will not be able to sleep and I have to go in and give him a sleeping pill. Sometimes if he is not well I have to go in a few times. Should I wake up in the night and feel a bit cool myself, I realise that Dave feels the heat and the cool a lot more than we do and I go and throw an extra blanket on and if too hot take one off. Q. So how do you sleep? A. With my ear to the wall. I think I'm constantly half awake all night. Q. In order to reach you what does he do at night time? A. Just calls out to me. I'm in the adjoining bedroom. Q. On the occasions that you have to turn him more than the routine once, how many times might you need to turn him? A. Anything up to maybe four times. That doesn't happen very often. It can happen three, four times in a night. Q. What sort of matters call for an additional turn or turns, other than the routine one which is a pressure sore preventative? A. Yes. If Dave's not well, especially if he has a bit of a cold he can't [afford] to get phlegm in his chest. Some nights I have been known to be doing percussion on him, one, two o'clock in the morning trying to get some phlegm up. Some nights, because Dave can't be active sometimes just doesn't sleep well and he can't turn over so he gets sort of frustrated, and I have to do it for him." 179 It is difficult to translate the above evidence into terms of "active" or "inactive" care with any degree of precision. Sometimes it is clear that Mrs Beck is called upon to attend her son more than twice in the night, and this has been the situation since his discharge from hospital. Nevertheless, I am not satisfied that there has been a daily need for attendances more than twice during the night. Doing the best I can, it seems to me that I should provide for the services at the inactive rate for fifty percent of the night periods that have elapsed since the plaintiff's discharge from hospital, and on this basis I deduct from the amount claimed the sum of $11,466. 180 Aggregating the four deductions I have identified results in a reduction of the amount claimed by $112,850. Accordingly, the amount I allow for the provision of past services by Mrs Beck is the sum of $300,091. Interest on allowance for past services 181 I allow interest at the rate of five percent for five years seven months, and I calculate this allowance in the sum of $83,775 in round figures. Future care provision 182 The evidence establishes that the plaintiff will require attendant care twenty-four hours per day for the future. Whilst there have been occasions in the past, and whilst there may well be occasions in the future, when the plaintiff has been briefly without a carer in attendance, such occasions follow no set timetable. The plaintiff may, for instance, albeit infrequently, have been without a carer with him whilst he has been at the cricket and he may have been left in the club at night for a short time without a carer, arranging to go home in a taxi. However, the evidence has clearly established to my mind that as a matter of regular routine the plaintiff requires twenty-four hour per day care and no adjustment to that routine requirement can be made to allow for those times, which I find to be very limited indeed, when the plaintiff may be temporarily alone. 183 Prof Jones identified the plaintiff's needs as being for twenty-four hour per day attendant care. In addition, the plaintiff has a need for attendant care for two and a half hours per day on enema days and for one and a half hours per day on other days. Hence, Prof Jones identified an average two hour per day need for bowel and bladder care. Additionally Prof Jones perceives a need for domestic care for three hours per day and for handyman/gardener care for three hours per day, assuming the plaintiff is living in his own accommodation. 184 To date, of course, the plaintiff has been living in accommodation provided by his father but that is temporary and it is reasonable to provide in this case for the additional cost of a home suited to the plaintiff's particular handicap. That will be dealt with later as a discrete item. But there is a need to be filled for domestic and handyman/gardener-type activities. 185 Dr Buckley has also opined that the plaintiff requires twenty-four hour per day attendant care. He envisages two-three hours per day of personal care and three hours per week for home maintenance. 186 The first defendant tendered a report from Ms Hogan of Southern Cross Community Healthcare. Ms Hogan has envisaged a need for future care for twenty-four hours per day. In addition, Ms Hogan envisages the need for a nurse to do catheter changes one hour per month and a need to provide home maintenance and gardening services in the event the plaintiff is to live in his own home. Other reports from Dr Henke and Ms Flanagan recognise a need for twenty-four hour per day care. 187 What care ought to be provided for and how should the need best be met? 188 Dr Buckley considers that the plaintiff's needs ought to be met by providing for a live-in couple. As to this he said (T44, 45): "Well my observation is that the development of a long term relationship between the carers and the disabled person is an advantage and the rapid turnover of shift workers is a disadvantage. And it seems to me it's a basic matter of human nature that if a relationship is developed, then the care is more closely aligned with the particular needs of the particular disabled person and is not dictated so much by the beliefs and approaches, if you like. of the shift working type person, who really is less likely to develop that close relationship… Q. When you speak of the provision of this care by a live-in house couple do you envisage two people seven days a week, 52 weeks a year? A. No. Q. Same two I mean? A. No. The arrangement varies between five days and another house couple for two days or three days and four days, and normal vacation provisions." 189 Dr Buckley went on to give the following evidence in response to the following questions (T45-46): "Q. Doctor, somebody like Mr Beck who has retained all of his intellectual function, does the fact that he has retained all his mental faculties assist you in determining which is the preferred way of delivering this 24 hour attendant care? A. Yes. In so far as he is quite capable of directing his carers to carry out the care he wishes and be quite appropriate in that direction, I think that adds weight to that development of a relationship between him and the carers because once the relationship is developed - there is an argument within one of these reports that familiarity of the carers with him will lead to some diminution of the care provided by the familiarity. Well, I think that any of that is protected by the fact that he can direct the care as he requires it. Q. You spoke of there being advantages for a man like Mr Beck to have his care delivered by the house couple? A. Yes. Q. Can you elaborate upon that? A. Well, it's primarily that the relationship develops between him and the carers and that they will have much more of an interest in all his activities. If they want to do an activity that goes beyond eight hours they will be there to help him do it. That will add to the options available to him. Just seems to me that, that is just on a basis of developing a relationship, the most satisfactory method. Q. You speak on page 6 of your report, number 7 in the exhibit, of the need for him to have access to the normal vacation activities, is that so? A. Yes. Q. Doctor, in your experience of treating people with spinal injuries of this type, standard holidays, notwithstanding the fact that they are not at work, important for their rehabilitation and the maintenance of their well being? A. Yes. Q. What term of a holiday would you envisage? A. Well, I would have thought he would have the normal availability of vacation, four, five weeks the average worker has. Q. Doctor, there seems to be unanimity amongst the reports when he goes on vacation he would need two carers for the whole of the period? A. Yes. Q. And that would add to the desirability of providing care through the house couple option that you earlier discussed, namely they could be the two carers that travel with him? A. Yes, I'm sure that could be right. Q. That present difficulties if you have the rotating shift workers? A. Yes, I think it would." 190 The competing viewpoint was advanced by Ms Hogan in her report (first defendant's Exhibit 16 at p 20): "In Southern Cross' opinion and extensive experience of caring for persons in their homes, the most effective way of providing 24 hour care is through rotating shifts (generally of 8 hours each, although in some cases, 12 hours shifts are provided). The Southern Cross model of providing care is to have a group of carers specifically trained in the needs of the recipient. The model of having several carers involved in a recipient's care means that trained back-up carers are available for roster cancellations, holiday leave replacement and replacement if a carer leaves. Southern Cross provides a 24 hour on-call service with access to a registered nurse at all times. This model minimises issues which often arise when providing high levels of care to recipients, particularly those issues in relation to dependency of the recipient upon carers. Southern Cross is aware of several community healthcare agencies who provide a similar model of care provision to that offered by Southern Cross. One alternative to the Southern Cross model is to provide a live-in couple. In Southern Cross' opinion, this model presents difficulties in that the recipient is relying upon only two persons for care and the issues of familiarity, dependency (leading to potential diminishing of quality standards and care), problems with holiday and sick leave replacement, and 'burn out' of the couple may arise. Similarly, with the live-in couple model, if the couple decide to cease their employment, the recipient does not then have any carers trained in their care needs, which leads to a disruption to their care provision." 191 Ms Hogan was not called but I did have the benefit of seeing Dr Buckley and hearing him advance the reasons already referred to as to why he preferred the live-in couple alternative. I am persuaded by his evidence that that alternative is to be preferred, and that the plaintiff has established on the balance of probability that the cost of provision of this alternative ought to be allowed. 192 Whilst attendant upon provision for a live-in house couple is the cost of providing for their accommodation, there are savings attendant upon such a regime. Dr Buckley agreed (T44) that with a house couple the necessity for an additional handyman/gardener attendant would be eliminated, and I accept this to be so. Equally, the provision of the live-in couple would eliminate the need to also employ somebody extra to do three hours per day domestic assistance. 193 Nor would it be necessary with a live-in couple to provide for the cost of two additional carers for bowel and bladder function. I accept the evidence that Prof Jones gave in response to these questions (T410-411): "Q. The plenary of care is really what I want to talk to you about Professor Jones. The need for two people to deal with him two and a half hours a day on enema days and one and a half hours a day on other days proceeds, as you say, from his paraplegia problems? A. Yes. Q. Can I just deal with the non-bowel days for the moment. One of the people who is required, is the carer. Is that what you have in mind? A. Yes. Q. And that carer needs an assistant for those one and a half hours to do the lifting? A. Yes. Q. On the enema days, again, one person needs to be expert in dealing with enemas? A. Yes. Q. And that can be a trained carer? A. Yes. Q. And another person needs to be there to assist? A. Yes. Q. And the carer, the person giving him attendant care can be that second person? A. There should be two people with him." 194 Dr Buckley was asked about this (T70): "Q. Might I just take you back to the carer episode. In your major report as it's described in page 6 you speak of 24 hour assistance plus three hours a day additional care see that under 'requirements of care'? A. Yes. Q. I overlooked the description of the person that you recommend should provide that three hour additional care, namely, that being an enrolled nurse? A. Well, my reason for that is that someone with some medical training is helpful in the administration of enemas that sort of thing, observation of development of pressure sores and things. That's my principal reason for including that level of training. Q. But properly trained people in dealing with people of this type of disability can adequately carry out those tasks, is that right, or would you still prefer the enrolled nurse? A. I would still prefer the enrolled nurse. HIS HONOUR: Q. Just to check the pressure sores? A. The management of enemas and bowel management and review of the catheter. Q. Full time carers would get a fairly experienced approach to that those problem [sic], wouldn't he? A. They probably would be, your Honour, yes. WHEELAHAN: Q. And I think that in your recommendation of the house couple was the one that was adopted than you had in mind that that prescription, or that fulfilment of the prescription would deal with that aspect? A. In some sense it doesn't quite, but one has to draw the line at some point I would say." 195 Having considered all the evidence in point, it seems to me to be just and reasonable in providing for the plaintiff's future care needs to allow the cost of a live-in couple. Added to this, however, I accept that the plaintiff will have a need for the assistance of a nurse as opined by Ms Hogan for one hour per month for catheter attention. Some level of expertise is required too for administering enemas and looking out for pressure sores. Whilst it is to be hoped that the provision of services by a live-in couple will not be attendant with rapid turnover of those providing the services, it seems to me that provision ought to be made for the cost of some instruction and training of the carers concerning enema days and the activities associated with them. Ms Hogan recommended provision for the nurse who looks after the catheter care to be a team leader with a responsibility to supervise care provision and to liaise with care attendants. Ms Hogan perceived a requirement of four hours per month to fulfil this role, but that was in the context of the attendant care being provided by shift workers rather than a live-in house couple. What I consider to be reasonable is to provide for nursing care of three hours per month; in this way the cost of catheter care is met and also the cost of ensuring that the live-in couple maintain the necessary expertise in attending to the plaintiff's bowel and bladder care. 196 Costs associated with the regime I have defined as being appropriate are not in dispute. They are to be assessed by reference to Mr Keep's reports and by reference to Ms Hogan's report. There is a need to provide for more than one live-in house couple per week. Relief assistance is to be provided for two days per week. The cost of the live-in couple has been calculated in Mr Keep's report of 7 February 2001 (p 3); that provides for the cost of the relief assistance and amounts to $3,472 per week. The cost of the additional nursing provision I have identified averages $25 per week, adapting the costings at p 22 of Ms Hogan's report, first defendant's Exhibit 16. 197 The total weekly cost for the provision I have defined is $3497. The lump sum cost of allowing for this provision for 45.2 years (allowing for the life expectancy I defined earlier) is $4,550,296 (omitting cents). I include that sum in my assessment. The cost of a motor vehicle 198 I am satisfied that the plaintiff will require for the future a vehicle which is suitably modified to meet his special needs. Since his accident the plaintiff has acquired a Toyota Hi-Ace van and is dependent on a hoist to gain access to it. The van has not proved to be satisfactory because the plaintiff cannot see out of it properly. He sits too high in his wheelchair and has to lean forward in the chair to have any view. 199 It is the plaintiff's case that an appropriate vehicle to meet his special requirements is a 2000 Chrysler Voyager automatic wagon and Mr Wheelahan relied upon Mr Wood from the NRMA in support of this claim. The claim advanced by the plaintiff for the costing of the need to be met has been based on the assumption that but for the accident the plaintiff would have purchased a second-hand car such as a 1995 Holden Acclaim and then to claim the difference in capital expenditure between such a vehicle and the vehicle now required, together with the difference in annual running costs. Mr Wood has dealt with these costs in his report, part of Exhibit A. 200 There is no challenge to the claimed need to provide for an appropriate vehicle for the future and there has been no challenge to the method used in calculating for the provision of the need save for one critical matter, namely the choice of an appropriate vehicle for the future. 201 Mr Wheelahan called Mr Wood from the NRMA and he maintained his support for the vehicle he had nominated, namely the Chrysler Voyager. Mr Nock, for the second defendant, called Mr Bennett, who is himself disabled and who is the founder of and a director of a company known as Multi-Tems Pty Limited. That company provides consultancy services for the disabled and advises, inter alia, on the suitability of vehicles for persons with severe disabilities. Mr Bennett's recommendation in his report, second defendant's exhibit 11, was for a Mercedes Vito and he maintained his support for this vehicle in the evidence that he gave. 202 The cost difference is considerable. The purchase price of the Mercedes Vito is less than $55,000 whilst the Voyager costs $81,000, in round figures. Allowing for the difference in running costs, the overall difference in providing for a Voyager rather than a Vito is approximately $100,000. Mr Maconachie, in his written submissions, supported Mr Nock's contention that a Vito was the appropriate vehicle and he invited the Court to allow for the future cost of motor vehicle provision the sum of $100,000. Even allowing for the Vito as the appropriate vehicle, Mr Maconachie's figure could not be regarded as a precise costing. Mr Nock submitted figures based upon a life expectancy of 45.2 years, arriving at the total cost of a Vito of $163,746, and those mathematics seem to me to be correct. By comparison, the cost of the Chrysler Voyager, based upon a life expectancy of 45.2 years, is $265,835. 203 I have given close consideration to the reports of the two experts and to the evidence which each gave. 204 Mr Wood did not suggest that the Voyager was the only vehicle which could be modified to provide for the plaintiff but it was a vehicle selected as suitable for conversion and which, to his knowledge, was converted by engineers in workshops in New South Wales. The particular conversion required for the plaintiff is a conversion which, in Mr Wood's mind, is satisfactorily carried out in the workshop in this State. The conversion required is to cut a section out at the rear of the vehicle and to lower the disturbed area to provide for wheelchair placement. The vehicle is already fitted with air conditioning vents at the back and a fold-out ramp providing rear access can be installed. By comparison, Mr Wood said that the Mercedes Vito is a commercial van with no side windows behind the driver's section so that windows would have to be cut out and trim installed. Air conditioning would have to be installed at the rear also and the plaintiff sitting in a wheelchair would not be sitting at normal passenger height. Notwithstanding the difference in costs, Mr Wood considered the Chrysler Voyage to be "the way to go" . Mr Wood gave this evidence at T300-301: "Q. Mr Woods, bearing in mind the various considerations the positives and the negatives, the way in which you have to go about modifying the Vito, cutting holes in it and upholstering it, so it looks like a car, what's your view about the preferred option for a person in Mr Beck's condition? A. I still feel that the Chrysler vehicle is the way to go, because it is a passenger car. The modifications that are done are done to the floor only. The rest, the trim, stays there. Due to the modification he's seated basically at the same level as other people. He's going to be closer. He's not so much isolated. He's becoming more of a unit inside this vehicle and it's very difficult to attempt that as a conversion being done. Again we get back to the person's dignity it's poor luck that the gentleman's got caught in a wheelchair for the rest of his life but on the other hand, he should make it patently obvious that it's there all the time. HIS HONOUR: Q. With the Vito he is going to be sitting at a higher level because he's in the goods section at the back? A. Yes, that's correct. Q. He's going to be looking down over the driver? A. Yes, potentially. I'm not denigrating the Vito, or anything like that, because there were a few of them done for the Paralympics. They are a particularly good vehicle, if you have got multiple wheelchairs. In other words one in a nursing home, or something like that. They are quite adequate for that. You don't need an enormous amount of space inside. You have only got one person. You have got to put seat in and as we mentioned windows. You have got to trim it. You may have a ramp, or a hoist, which is going to clutter up the inside again. It's irrelevant really for one person, in my opinion and that's why we stick to the Chrysler Voyager because there has been an enormous number of this type of conversion done in America and there has been quite a number of them done out here. We know how it works. The people we use, we are happy to nominate them, because we have seen the standard of work and it's a better vehicle all round in my opinion. 205 In his preference for the Vito Mr Bennet said that it had become a very popular vehicle for people with disabilities over the last two years and it has the advantage of having side loading capacity. This, of course, would enable the plaintiff to enter the vehicle from the footpath rather than from the rear of the van. The Vito does not require a well to be cut in it so that the structural efficiency is maintained. The Vito would have a better resale value in his view than the Voyager and the adjustments necessary for wheelchair use in the Vito were not as extensive and could be removed. Whilst the Vito was higher off the ground than the Voyager and whilst it required modification of the kind recognised by Mr Wood, providing windows, trim and air conditioning, Mr Bennett did not see the height at which the plaintiff would be sitting in the van as a disadvantage. He contemplated that the windows would be tinted and this was an important provision for privacy, allowing for activity that may be required in the van, such as replacing a urine bag. 206 In his submissions Mr Maconachie argued that to provide for the Voyager would be to provide for amenity rather than to address a reasonable need. 207 I have given that submission close thought in reflecting on the evidence of the witnesses. Part of the evidence before me is in report form. In her report, Exhibit A1, the occupational therapist, Ms Lukersmith, proposed the Chrysler Voyager to meet the plaintiff's needs. Ms Lukersmith was not required for cross examination. 208 The first defendant engaged an occupational therapist, Ms Flanagan, and her report became Exhibit A11. Ms Flanagan recommended in that report a Chrysler Voyager as a suitable vehicle to accommodate the plaintiff's specific requirements. Ms Flanagan was not required for cross examination. 209 I have concluded that the plaintiff has proved on the balance of probabilities that provision should be made in my assessment for the cost of the Voyager. I find myself persuaded by the evidence of Mr Wood, with the support for the Voyager from Ms Lukersmith and Ms Flanagan also. I therefore include in the assessment of damages the sum of $265,835 for future vehicle provision. Provision of a mobile phone 210 A claim is made for a mobile and hands-free phone capable of being used in and away from the plaintiff's motor vehicle. Mr Wood provided the costings for it, allowing for its replacement at five year intervals. This, he perceived, would allow for wear and tear and advances in technology. 211 The defendants have not challenged this claim, save for the submission by Mr Maconachie that the need for a mobile phone would diminish should the plaintiff ultimately move into a nursing home. 212 I have decided on balance that I should allow for this item, adjusting the sum claimed for the lesser life expectancy of 45.2 years which I have found. I thus allow the sum of $15,354. Cost of future medical treatment 213 Dr Buckley, in his report of 24 December 1998, part of Exhibit C, detailed what he perceived to be the plaintiff's ongoing needs: 214 General practitioner: The plaintiff will need to see his general practitioner on a monthly basis. The cost of the consultations, assuming home visits, is set out in Dr Buckley's report of 1 December 1999. In addition to the monthly visits, Dr Buckley considers that a further four attendances per annum should be provided for because of the ever-present risk of pneumonia. Whilst I accept that the plaintiff will have the need referred to by Dr Buckley, the doctor agreed in cross examination that assuming the plaintiff had the means of getting to the doctor's surgery there was no reason why he could not visit the doctor and Dr Buckley said that surgery visits were approximately half the cost of home visits. It seems to me that it would be reasonable for the plaintiff to visit the doctor's surgery some of the time and the costings presented by the plaintiff require some modification for this, as well as for what I perceive to be the plaintiff's life expectancy of 45.2 years. I propose to allow $21,000 for the plaintiff's need for the services of a general practitioner. 215 Spinal injury specialist: Dr Buckley opined, and I accept, that the plaintiff will require annual assessment by his spinal injury specialist. Accepting the cost figures provided by Dr Buckley, I allow for the remainder of the plaintiff's life $1911. 216 In adopting Dr Buckley's costings as a guide for this and other items of future medical treatment, I do not overlook Mr Maconachie's submission that such figures should be adjusted because they assume private hospital care. Dr Buckley was unable to provide any public care costs, and there is no evidence before the Court as to what such care costs would be. The difficulty, as Dr Buckley perceived it, in contemplating public hospital care was the need to address urgent requirements. Whilst I am mindful of Mr Maconachie's submission, I have, as the evidence stands, considered it appropriate to adopt Dr Buckley's costings. 217 Renal ultrasound: The unchallenged evidence of Dr Buckley is that the plaintiff will require annual renal ultrasound. Again adopting Dr Buckley's costings for this requirement, I allow $4537. 218 Intravenous pyelogram: Dr Buckley has opined that the plaintiff will require such a procedure every third year and his unchallenged evidence to this effect persuades me that I should allow $2062 for this item. 219 Specialist urologist: Dr Buckley considers that the plaintiff will require annual assessment by a specialist urologist. Accepting this to be so, and again accepting the fee set by the doctor, I allow $2062 for this. 220 Occupational therapy: Dr Buckley considers the plaintiff will require four hours of occupational therapy advice per year and provision is warranted to meet this requirement. For this I allow $9270, again accepting Dr Buckley's figures. 221 Uro-dynamic studies: Dr Buckley considers that provision should be made for three uro-dynamic studies during the plaintiff's lifetime. Again this evidence is unchallenged and I make provision for this requirement on the figures provided by Dr Buckley. I allow $963. 222 Hospital admissions: Dr Buckley considers provision should be made for the plaintiff to be in hospital for two weeks every five years due to pneumonia. I propose to provide for this, again adopting Dr Buckley's figures, and I allow $32,998. 223 Pressure sores: Dr Buckley considers that provision ought to be made for the complication of pressure sores and that two major pressure sore operations in the plaintiff's lifetime should be contemplated. Again, Dr Buckley's opinion about this is unchallenged and I propose to make provision for this, guided by Dr Buckley's costings. I allow $12,500. 224 Spinal cord procedures: Dr Buckley has opined that the plaintiff is at risk of further complications in relation to his spinal cord and that provision should be made for two major spinal cord procedures during the plaintiff's lifetime. Again I accept Dr Buckley's unchallenged evidence that this need should be provided for and I accept Dr Buckley's evidence as to costs involved. I allow $21,000 for this. 225 Urological procedures: It is Dr Buckley's opinion that provision ought be made for two urological procedures during the plaintiff's lifetime and again the doctor has provided details of relevant costings. I accept the evidence on this item and I propose to allow $7000 for this. 226 In aggregate therefore in relation to provision for future medical treatment, I allow the sum of $115,303. In making that provision, I have, where appropriate, allowed for the deferment of the expenditure in accordance with Dr Buckley's opinion. Acupuncture 227 Exhibit A6 comprises a report from Mr Hagan of the Shenmen Clinic. According to Mr Hagan, whose report is dated 8 December 2000, he has been giving the plaintiff treatment over the course of the past four years. The plaintiff's evidence was, in short, that he has found the acupuncture beneficial. 228 A claim is made for the plaintiff to continue to have a session of acupuncture fortnightly for the rest of his days, at the current cost. Mr Hagan has not been called to give evidence, and whilst I am satisfied that provision ought to be made for acupuncture in the future, I am not satisfied that provision should be made for the rest of the plaintiff's life at the rate of a session per fortnight. It may very well be, when the pool for which I intend to make allowance is introduced, that the plaintiff's need will lessen and, in any event, having regard to the regime of care for which I otherwise make allowance in this assessment, it does not seem to me that this claim should be allowed in its entirety. The claim made has been costed at over $33,000. I do propose to allow the sum of $15,000 for future acupuncture. Doing the best I can, I perceive that to meet the reasonable cost of such acupuncture as may reasonably be provided in the years to come. Provision for future medication and pharmaceutical requirements 229 There is no challenge to the plaintiff's claim in this regard. The cost of meeting the plaintiff's future needs is $127.61 per week. The lump sum presently required to provide for this expenditure for 45.2 years if $166,046. Future cost of Baclofen pump surgery 230 Dr Buckley considers the Baclofen pump will require revision every five years and this will, of course, involve surgery. Dr Buckley's costs are contained in his report dated 29 May 2000. Each procedure will cost $13,961. The figure of $77,280 claimed is calculated on a life expectancy of forty-nine years. For reasons earlier expressed, I consider the calculation requires adjustment to allow for the lesser life expectancy. 231 Mr Maconachie has submitted it should be discounted also to allow for the possibility that the procedure is not required as often as every five years and also for the possibility that the procedure may be carried out at a lesser cost in a public hospital. I am not attracted by those submissions. It seems to me that whilst it is possible the procedures may occur less frequently than every five years, it is equally possible they may occur more frequently. Dr Buckley has expressed an expert opinion supporting procedures every five years and I am persuaded by Dr Buckley's evidence, including the reasonableness of his costings. 232 I allow for this claim the sum of $74,440, in round figures. Future cost of child care 233 The plaintiff makes a claim for the cost of care which would have to be provided for any children he may have. This claim is advanced upon the basis that the plaintiff has two children assumed to be born on 13 February 2004 and 13 February 2009 respectively, and what is sought is the cost of rearing such children until the younger child completes his or her schooling in November 2026. The claim is costed on the assumption of live-in care until the younger child goes to school and then on a live-out basis for five hours per day whilst such child is at school, and eight hours per day when such child is not at school. The claim is costed at $904,762. 234 It is to be observed at once that had the plaintiff not been injured the probability is that he would have been at work during the day pursuing his vocation as a teacher. Indeed, I have reflected this probability in the allowance for loss of earning capacity. The plaintiff would not have been in a position therefore to care for any children whilst he was pursuing his teaching duties. This claim also ignores the role that the mother of any child would play in providing care. 235 Mr Wheelahan frankly conceded in his final submissions that this head of the plaintiff's claim must inevitably be heavily discounted. However, he submitted that in principle a need for assistance to do that which the accident had deprived him of the capacity to do was not limited in a compensable sense to self-care, and he referred to Sullivan v Gordon [1999] NSWCA 338. In that case it was determined that Burnicle v Cutelli (1982) 2 NSWLR 26 was no longer good law. In Sullivan the need to care for children to whom the plaintiff gave birth after her compensable accident was held to be compensable upon proof that the plaintiff was unable to care for them. However, in that case Beazley JA, with whose judgment the Chief Justice agreed, was satisfied that the brain damage the plaintiff had suffered in the accident had "reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children." Her Honour found (at para 67) that the plaintiff's "conduct in having children, even if it could be objectively viewed as unreasonable, was caused by the respondent's negligence and consequently there was no break in the chain of causation." 236 If the plaintiff in the present case was to have children, it could not be said that his conduct in doing so was caused by the respondent's negligence, but by his own deliberate subsequent conduct. Would this break the chain of causation? 237 It seems to me that Sullivan leaves this difficult question open. Mason P in Sullivan agreed with the orders proposed by Beazley JA but the President said this (at para 14): "An injured plaintiff's own need for personal care includes changing needs occurring throughout his or her lifetime. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor's door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law." 238 The question left unanswered in Sullivan does not, in my opinion, however arise in the present case because of the findings and for the reasons which I will now state. 239 The evidence given by the plaintiff and his parents satisfies me on the balance of probabilities that it was the plaintiff's wish before this accident to marry and to have a family. I also accept the evidence which the plaintiff gave that he would still like to marry and have children. 240 However, if the plaintiff was to marry, the evidence is clear that he would be unable to have "any normal form of sexual intercourse with orgasm" (report of Prof Jones, 28 February 1997). Prof Jones then went on to state that the plaintiff required "sexual counselling and assistance in fertility issues" . Later, in May 1997, Prof Jones reported that the plaintiff "will need fertility assistance probably by in vitro fertilisation" , but whether the plaintiff is capable of fathering a child by such a method has not been addressed further in the evidence. 241 The plaintiff had a girlfriend at the time of the accident but the relationship did not survive that event, and the plaintiff has had no girlfriend since that time. Whilst the plaintiff is a good looking, courageous and altogether admirable young man, I cannot and do not find it to be likely that he will ever marry. I find it to be even less likely that he will have children. Indeed, I find that I can only regard the chance of the plaintiff ever becoming a father to be speculative and, accordingly, I do not consider it would be proper to make any allowance for this particular claim: see Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 at 642-643. I have, however, taken into account the loss by the plaintiff to enjoy the benefits of a normal married and family life in arriving at the allowance for general damages. Future cost of a computer 242 Both Prof Jones and Dr Buckley support the claim for the provision of computer equipment. In his report of 9 May 1997 Prof Jones wrote: "[The plaintiff] should have a computer for recreation and potentially for his work." Dr Buckley addressed the plaintiff's computer needs in his report of 24 February 1998: "I propose that Mr Beck be provided with computing facilities in view of his poor mobility and therefore limited access to information outlets. The computer should be fitted with up to date software and operating systems to maximise access to the Internet and will also require a modem for that purpose. In addition, the computer should have CD-ROM facilities and colour printer attached. Software for voice operated functions of the computer should be provided." 243 Those expressions of opinion I accept and I have earlier made reference to the plaintiff's computer use in the preparation of web site designs. I am satisfied that there is a compensable need to be addressed for the future, and I accept, as Ms Lukersmith reported on 10 September 1998 (Exhibit A1), that the plaintiff will require computer hardware and software upgrades in the future. 244 A report from Graeme Smith of Ability Technology, forming part of Exhibit A20, provided costings of the system he recommended for the plaintiff, and adopting his figures, the cost of providing the plaintiff with computer equipment for forty-nine years has been costed at $295,000. 245 The defendants do not challenge the mathematics reflected in the above figure, but it is submitted that it should not assumed that the plaintiff will use computer equipment for the rest of his life. Moreover, the costings assume replacement of equipment at very regular intervals. In the case of hardware, what is contemplated is changeover periods ranging from 2.5 years to four years; in the case of software equipment, the costings contemplate changeovers of items occurring every two to three years. 246 Mr Maconachie has submitted I should allow only $200,000 for computer costs with the above considerations in mind. 247 I confess that I have not found this item easy to address. The changeover periods contemplated seem very frequent, but Mr Smith was not required for cross examination. On the other hand, I have not allowed for the plaintiff deriving earnings from his computer after the age of forty-five years and I do not think it likely that the plaintiff will experience the need for changing equipment as frequently in his later years. 248 The plaintiff's figure must be reduced to allow for what I have determined to be his life expectancy. I have decided that the figure otherwise requires significant reduction having regard to what I perceive will be a less demanding use of computer resources in the plaintiff's later years. Nevertheless, there will remain an ongoing need in those later years that I must address, as well as the more intensive need before that. Taking account of those matters I have identified, I allow for future computer costs the sum of $220,000. The claim for increased holiday costs 249 A claim is made for the additional costs that the plaintiff must incur when on holidays. The evidence plainly establishes that the plaintiff would be unable to go on holidays without the assistance of two carers. 250 The plaintiff claims $381,753. This claim is calculated on the basis that it would be reasonable to provide for the plaintiff the increased costs associated with a trip to Europe in the immediate future and further trips to that destination every ten years and, in addition, the increased costs of holidays to Melbourne every second year. 251 I am satisfied that provision should be made in the plaintiff's award for increased costs that will be incurred when the plaintiff takes holidays. I accept that there will be a need for holidays and, indeed, the defendants do not contend otherwise. However, I do not consider it would be reasonable to award the amount claimed. The costings upon which the claim made by the plaintiff are based are to be found in Exhibit A12, a report from Travelaw. These costings include the cost of providing the carers with food, and no allowance is made for the saving on keep elsewhere provided for in the provision for the cost of caring for the plaintiff. Nor do the costings take account of package holidays or seasonal rates for air travel; I note for instance that $7037 is allowed in the costings as the cost of a return economy fare to Europe, and that is a very high fare indeed. Again, when looking at the airfares built into the costings for interstate travel, no allowance has been made for the cheaper fares so frequently available. 252 If the plaintiff does travel overseas in the future, it is not to be assumed he will always choose Europe as his destination or that he will travel as frequently as contemplated. He may well choose a less expensive destination, such as New Zealand. Nor is it to be assumed that he will always go to Melbourne for four weeks every second year. Once again, his holidays, and the length of them, with whatever frequency they are taken, may well result in less expenditure than that upon which the costings of the plaintiff's claim have been based. 253 Further, the costings assume that but for the accident the plaintiff would have gone to Europe in the immediate future and thereafter every ten years. Had the accident not happened, the plaintiff would, in all probability, have married and had children, and the associated responsibilities may well have restrained travel, certainly for so long as the children were financially dependent upon their father. Moreover, it is unlikely that the plaintiff uninjured would have chosen capital city holidays of four weeks duration every second year. 254 The figure I allow must provide for life expectancy of 45.2 years, not the longer period upon which the plaintiff's calculations are based. 255 The defendants have submitted that a reasonable allowance for future holiday costs is $250,000, and I have concluded that this submission should be accepted. Claim for future cost of equipment 256 The equipment needs of the plaintiff were assessed by Ms Temblett of Paraquad and her report of 5 November 1988 forms Exhibit A7. Two schedules of equipment needs have been given, the first of which identifies current requirements, and the second of which is headed "Possible Future Needs". 257 The defendants have not sought to challenge the need for any of the items scheduled on either list, nor the proposition advanced by Mr Wheelahan that allowance should be made for the second "possible" list on the basis that the provision for them should be postponed for five years. I therefore propose to allow for the various items on each list, providing, in the case of the second list, for the relevant costs to commence in five years time. 258 There is a saving to be gained by financial membership of the Paraplegic and Quadriplegic Association of New South Wales, and no reason has been advanced as to why the plaintiff would not become a member of that association. I find that it is reasonable that he should join, if for no other reason than to enjoy the savings on equipment costs. I therefore propose to allow for the cost of meeting the future needs at membership rates. I allow for such needs for 45.2 years, subject to postponement for the possible list costs for the period previously mentioned. 259 Again, employing the three percent tables as I have done previously where relevant, I make the following provision: For current requirements: $9483.12 annually (omitting cents) $237,296 For possible requirements: $3746.32 annually (omitting cents) $ 75,100 $312,396 Provision of an assistance dog 260 A claim is made for the provision of a dog to assist the plaintiff. This is an unusual claim but it is no doubt prompted by the adoption by the plaintiff of a recommendation of a psychologist. The plaintiff gave this evidence (T88): "Q. In May of 1997 did a psychologist recommend that you acquire a dog? A. Yes. Q. Have you owned a dog before then? A. No, never. Q. Did you do as you were advised? A. Yes, I did. Q. And I think it had been suggested to you by para and quad as well? A. Yeah. Q. What sort of dog did you get? A. A Border Collie. Q. What do you do with regard to the dog? A. Heaps. He's pretty much there the whole time with me. He's allowed inside the house, so if I'm sitting in the lounge room he's pretty close by, jumps up and puts his front claws on the side of my leg and I give him a pat. Walk him twice a day when the weather permits. When I'm outside he coasts around with me, yeah. Q. How to you find having the dog? A. It's great." 261 Mrs Beck was asked about the dog in the course of her evidence (T200): "Q. Just pausing there. With the dog, apparently he never had a dog before? A. No. Q. And it was recommended he get one for psychological well being? A. Definitely, yes. Q. To provide a companion? A. Yes. Q. And a pet? A. Yes. Q. When did you get the pet? A. It was three years ago, March, not long after we shifted into Tuckeroo Drive. Q. And you have observed him at very close quarters ever since that time? A. Yes. Q. What do you say, from a lay person's point of view, about the valve of the dog? A. Invaluable. He's just a joy to Dave, and Dave really loves him, and the dog seems to know it. When he is in bathroom he goes and lies outside Dave's window. He just wants to be around Dave all the time. It's beautiful. Q. Did you say it appears to assist with David's spirits? A. Yes." 262 The defendants have not contended that no allowance should be made for the provision of a dog. The only issue raised is as to the amount to be allowed. 263 The claim presented by the plaintiff is costed at $74,785. This claim is based upon a report from Assistance Dogs for Independence (Exhibit A23) which provided a cost analysis for a trained assistance dog. This analysis covered these issues: (a) assessment of the client's suitability for an assistance dog; (b) assessment of the requirements of the client; (c) the cost of purchase of the puppy and the cost of its early life; (d) the cost of intensive training for the dog; (e) the cost of training the client to use the dog; (f) the provision of equipment for the dog; (g) follow-up training for the dog. 264 The analysis also dealt with the average cost of maintaining a Labrador, assessed at $1845 annually. 265 Based upon this report and providing for all the elements of the analysis abovementioned, the claim was costed on the assumption that the plaintiff will require an assistance dog for the next forty-nine years. 266 Whilst I consider that the plaintiff is entitled to some allowance for a dog, I am not satisfied that the allowance should be made upon the basis presented on behalf of the plaintiff. 267 There is no evidence that "Banjo" has been trained as an assistance dog, nor does the evidence persuade me that the plaintiff has a need for a dog to be trained as contemplated in the report Exhibit A 23. The plaintiff will have available to him full-time carers. The compensable need which Banjo meets is the psychological need for which the dog was acquired. I consider therefore that it is reasonable to make some provision for the cost of the maintenance of the dog. 268 The maintenance costings referred to in Exhibit A23 are for a Labrador and Banjo is a Border Collie. I have no evidence as to the costs associated with Banjo's maintenance, nor do I know what he cost to acquire. 269 So far as Banjo's replacement is concerned, the evidence is that Banjo has been used for breeding purposes and the opportunity exists, no doubt, to defray the dog's maintenance costs and the cost of his ultimate replacement. 270 In all the circumstances, and I use the Labrador maintenance costs as some sort of a guide, I have decided that it is reasonable to quantify the costs of the compensable need at $20 per week. The need to be addressed by Banjo, or some other dog, will continue indefinitely. Accordingly, mindful of the plaintiff's life expectancy, I allow the sum of $26,000. Future cost of housing 271 The plaintiff has advanced a very large claim under this item which, stated broadly, is as follows: Cost of purpose built home and land $734,361 Maintenance and running costs of carers' accommodation 148,367 Cost of furnishing the carers' accommodation 6,165 Restoration costs for specific fixtures required 4,880 $893,773 272 The plaintiff gives credit against the above costings for the cost of a home averaged between a three bedroom and a four bedroom home. The amount thus credited is $235,938, and this results in a nett claim of $657,835. 273 The defendants submitted that the above claim is excessive and it has been submitted by the first defendant that adequate allowance for this item would be $100,000, but although Mr Maconachie made certain specific criticisms of the plaintiff's approach on this claim, no analysis as to how the figure of $100,000 was arrived at was attempted. It was simply stated to be provision for the cost of modification and for moving twice in his lifetime. 274 When the plaintiff left hospital he went firstly to his father's home at Ballina, because the two storey unit he had lived in with his mother before his accident was plainly unsuitable. His father's home, although some modification was done to it, was not suitable either and Mr Beck then purchased adjoining premises, in one of which the plaintiff has lived up to the present time with his mother. His father lives in the property next door and on that adjoining property there is a swimming pool. Unfortunately, the plaintiff has been unable to make even limited use of it as the pool is not heated and access to it is too difficult. 275 The house in which the plaintiff is presently living has been modified to some extent. The plaintiff identified some difficulties in living there and so too did his mother and the architect, Mr Watts. Although I consider the premises nevertheless to be reasonably sufficient for the immediate future, they would not be adequate in the long term. The plaintiff understandably wishes to live in his own home suitably modified to meet his handicaps and I am satisfied that the case calls for allowance to reflect the added costs in the provision of housing by reason of the plaintiff's handicaps and his requirements associated therewith. To determine the appropriate allowance is, on the evidence presented, an extremely difficult task. 276 Mr Watts, who I accept is an architect of considerable experience in projects involving disabled persons, prepared a report, Exhibit A25, and he gave evidence influenced by the plaintiff's understandable wish to continue to live in Ballina where his family and friends reside and where his interests are. It seems to me to be altogether reasonable that the plaintiff should continue to live in the Ballina area. 277 I am satisfied, as I have already indicated, that it is reasonable to meet the plaintiff's needs for future care by providing for a live-in couple and the plaintiff's future housing requirements are to be considered with this in mind. 278 What Mr Watts has done is to prepare a report describing and costing a home to be constructed on vacant land which would be satisfactory in addressing the plaintiff's special needs. His design provides for a three bedroom home with a study, a breakfast room, a kitchen, a living room, a gymnasium, an en suite bathroom for the plaintiff's exclusive use, and a second bathroom. It also provides for separate quarters for the live-in couple which have a bedroom, a kitchen and a living area. Further, the designed residence has a full sized swimming pool, verandahs, a carers' carport and an additional parking space, with garden area as well. I extract these costings from the architect's report: The home $184,000 The garage 25,000 The carport 8,500 The covered way and verandahs 20,000 External works 17,700 Carers' quarters 35,000 Special installations 34,000 Safety items 7,300 Air conditioning 13,000 Household equipment 4,000 Swimming pool 38,500 279 To the above costs, Mr Watts added expert fees for architectural and engineering services. In a supplementary report, reference was made to an increase in building costs. 280 Mr Watts' costings make no provision for the cost of the land on which the residence was to be built. 281 Mr Shay, who is a real estate agent with some twenty-eight years experience in the Ballina region, was called to give evidence of the cost of available land, considering large blocks of the order of 1000 square metres. Mr Shay's evidence was that the cost of such blocks is inflated because land of that size is zoned for units, and Mr Shay gave evidence of various land costs, including very expensive sites with ocean views. The average land cost, according to Mr Shay, for the size block he had in mind was $255,000. By adding the cost of land to the ultimate cost of Mr Watt's designed home, the figure of $734,361 previously mentioned is reached. 282 The home designed by Mr Watts would, I am sure, be satisfactory for the plaintiff, but the task I have to address is what is required to meet the plaintiff's "reasonable requirements" and not his "ideal requirements" : see Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661. 283 I am not satisfied, having considered Mr Watts' evidence, and in particular his cross examination by Mr Maconachie, that the plaintiff's reasonable requirements could not be met, even assuming the construction of a new home, on a block of land no larger than 700 square metres. The plaintiff's reasonable requirements do not call for a garage as large as that for which Mr Watts has made allowance, as well as a carport and a car space. The plaintiff's reasonable requirements do not extend to a full sized swimming pool. Since I am not satisfied that the plaintiff reasonably requires 1000 square metres of land, Mr Shay's costings for a block of such a size are not particularly helpful, although I derive some guidance from his evidence as I shall shortly indicate. 284 Turning to the various costings contained in Mr Watt's report, these provide for a 50 square metre garage, a carport and a covered way from the garage to the house. It seems to me that the plaintiff's reasonable requirements could be met by having a garage of lesser size incorporated into the house structure, thus eliminating part of the garage cost and the covered way. 285 In relation to the swimming pool, Mr Watts has costed this at $38,500, but, whilst the provision of some pool is desirable, what is required is an area for the plaintiff and his helper where his helper can support him. In the language of Dr Buckley in his report dated 24 December 1998, what is required is "a small heated swimming pool of sufficient size to contain Mr Beck in a floating supine position with a carer to assist him." This requirement can be provided for at a total cost of $16,000. I draw this figure from the evidence given by Mr Watts in cross examination. The smaller pool would have much smaller running costs: Mr Watts said something between ten to twenty percent of the running costs for which he provided. 286 What Mr Watts has done in his costings is to cost the house designed. His costings make no allowance for what costs would have been incurred in the construction of a house which did not have to be modified for the special needs of the plaintiff. I accept Mr Watts' opinion that the plaintiff's need would best be addressed by the construction of a new home, but I am not satisfied that, by simply adding the cost of such a house to the cost of a block of land, and then deducting the cost of a house already built, the plaintiff's approach to this item makes adequate allowance for what has to be kept in mind, namely that my task is to provide compensation for the additional costs reasonably to be incurred because of the plaintiff's particular needs. 287 This difficulty, which I perceive in the approach I am invited to take, extends to the provision for the verandahs, external works, many of the safety and security items and the household equipment. 288 Whilst I acknowledge the imperfections of the approach I have decided to take, it seems to me that it affords the most helpful guide to the determination of a reasonable allowance under this heading. Drawing on Mr Watts' evidence, but not accepting it in its entirety for the reasons I have already indicated, I adopt the following approach. I allow his basic home construction cost of $184,000. I allow altogether for a garage of reduced size and a carport the sum of $25,000. I allow $35,000 for construction of carers' quarters. I allow $16,000 for the provision of a swimming pool (accepting the evidence given by Mr Watts in cross examination at T318). I allow for special installations of the sort considered by Mr Watts at pp 23-23 of his report, the sum of $33,000. I allow for safety items the sum of $3100, being for items 2, 5 and 6 of the items identified at p 23 of his report. I allow $13,000 for the air conditioning costs outlined by Mr Watts. Providing for professional fees, I allow for building costs for a residence suitably constructed the sum of $340,000. 289 I have considered, but have not allowed for the reasons earlier recorded, the remainder of the capital cost items of the building works referred to in Mr Watts' report. 290 To the allowance for building costs provision must be made for the cost of a block of land. I am not satisfied that it will be reasonably necessary for the acquisition of a larger block than one of 700 square metres. Mr Shay did not directly address the cost of blocks in the Ballina area 700 square metres or less; and I observed earlier the larger blocks with which his evidence was concerned were made the more valuable because they were large enough for home unit development. Mr Shay did give evidence that prices for 1000 square metre blocks in Ballina started at $200,000. Mr Watts referred in his report to information given by an estate agent that there was a block in the Headlands Estate north of Ballina over 900 square metres expected to sell "for about $100,000" but that information was not tested. It seems to me that it is reasonable to infer that, if prices for 1000 square metre blocks start from $200,000, a smaller sized block of, say, 700 square metres could reasonably be expected to be purchased for $150,000 or thereabouts. 291 Adding this acquisition cost to the figure earlier stated, I arrive at the sum of $490,000 as the reasonable cost of the provision of a new residence for the plaintiff, constructed to meet his special requirements. 292 There must be offset against this the cost that the plaintiff would have incurred in acquiring a residence suitable for an able bodied person. There has been no attack upon the figure of $235,750 used in the plaintiff's costings and I adopt it. On this approach I arrive at the sum of $254,250 for the extra cost of a home suited to the plaintiff's reasonable needs. 293 The plaintiff is also entitled to provision for the cost of furnishing the carers' accommodation. In this regard, the figure advanced by the plaintiff of $6165 has not been challenged and I allow it. 294 Provision must be made for maintenance costs associated with the air conditioning the plaintiff will require and with the pool maintenance. 295 It seems to me on the evidence that $40 per week is a reasonable assessment of the cost of maintaining air conditioning and the lump sum presently required to provide for such a cost for the duration of the plaintiff's life is $52,048. 296 Next, provision is to be made for maintenance of the carers' accommodation. I draw on the figures identified in Exhibit E and, accepting that the average annual cost for such maintenance is $739, I allow for the future the sum of $18,216. 297 The smaller pool which I find to be a reasonable provision in the circumstances of this case will, according to Mr Watts, cost ten to twenty percent of the running costs set out on p 26 of his report. I allow $26,000, in round figures. 298 In all then, for maintenance costs I allow $96,264. 299 I am not persuaded that it is reasonable to allow for the restoration costs, being the fourth item identified in the plaintiff's claim for future housing costs. This contemplates the contingency that the house to be provided is ultimately to be sold to a person without a disability. This item is too speculative to warrant an allowance. 300 I summarise the allowance for future cost of housing as follows: Provision of housing $254,250 Relevant maintenance costs 96,264 Furnishing carers' area 6,165 $356,679 Summary of assessment 301 I summarise the above assessment as follows: Allowance for general damages $375,000.00 Interest on past general damages Nil Loss of earnings and loss of earning capacity Past loss 129,000.00 Future allowance 810,000.00 939,000.00 Interest on claim for past economic loss 25,560.00 Fox v Wood allowance 3,905.30 Lost superannuation benefits 93,082.00 Loss of long service leave entitlement Nil Out of pocket expenses 635,332.31 Past gratuitous assistance 300,091.00 Interest on past gratuitous assistance 83,775.00 Future care provision 4,550,296.00 Cost of a motor vehicle 265,835.00 Provision of mobile phone 15,354.00 Cost of future medical treatment 115,303.00 Acupuncture 15,000.00 Future medication and pharmaceutical requirements 166,046.00 Future cost of Baclofen pump surgery 74,440.00 Future cost of child care Nil Future cost of a computer 220,000.00 Increased cost of future holidays 250,000.00 Future cost of equipment 312,396.00 Provision of an assistance dog 26,000.00 Future cost of housing 356,679.00 $8,823,094.61 Payments made by the first defendant 302 I have earlier made reference to the payments that have been made to or for the benefit of the plaintiff by the first defendant. No comprehensive list of such payments was proved at the hearing but since I reserved my decision in this matter, and at my request, counsel have provided particulars. A list provided by Mr Wheelahan acknowledges payments totalling $908,243.81; the subsequent list provided by Mr Laughton details payments totalling $943,841.85. The payments made assumed relevance having regard to the claims for interest I have now addressed. The communications of counsel are marked for identification, mfi: 17 and mfi: 18 respectively, and will be placed with the papers. 303 For the purposes of my assessment however, the precise amount that has been paid does not assume relevance because it is not contended that I should make any deduction from the damages assessed by reason of the payments that have been made. Their only relevance for my purposes concerns allowances for interest. Such payments as have been made by the first defendant have not been pleaded by way of defence and the Court is informed that the plaintiff is under a contractual obligation to repay what the first defendant has paid out following the entry of judgment in this matter in the plaintiff's favour. Indeed, I have been informed that the first defendant will continue to make payments up to the date upon which judgment is entered and the fact that payments have been continuing may well account, at least in part, for the difference between the figures advanced concerning payments by Mr Wheelahan on the one hand and by Mr Laughton on the other hand. The plaintiff's entitlement 304 Consequent upon the finding of contributory negligence I have made, the plaintiff is entitled to recover the damages above assessed less twenty percent. He is therefore entitled to verdict and judgment against the defendants in the sum of $7,058,475 (omitting cents). The cross claims 305 The first defendant is entitled to judgment on its cross claim against the second defendant for forty percent of the sum for which judgment is to be entered in favour of the plaintiff, that is to say in the sum of $2,823,390. 306 The second defendant is entitled to judgment on its cross claim against the first defendant for sixty percent of the sum of $7,058,475, that is to say in the sum of $4,235,085. Costs 307 Costs would ordinarily follow the event but I propose to reserve costs in this case to afford the parties an opportunity to make any submissions that may be considered appropriate concerning costs. Formal orders 308 1. Verdict and judgment for the plaintiff against the defendants in the sum of $7,058,475 2. Verdict and judgment on the cross claim of the first defendant against the second defendant in the sum of $2,823,390. 3. Verdict and judgment on the cross claim of the second defendant against the first defendant in the sum of $4,235,085. 4. Costs reserved. 5. The matter to be listed on Friday 20 April 2001 at 9.15 am for the purpose of considering any submissions as to costs of the plaintiff's claim and of the cross claims by each of the defendants. ********** Last Modified: 04/19/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.