New South Wales Supreme Court CITATION : WARDLE v KICK & ORS [2006] NSWSC 622 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 20-23 February 2006, 28 February 2006, 26 April 2006, 11 May 2006 JUDGMENT DATE : 21 June 2006 JURISDICTION : Civil JUDGMENT OF : McClellan CJatCL DECISION : 1. Verdict for the plaintiff as against the first and third defendants in the sum of $526,536.19. 2. Verdict for the second defendant as against the plaintiff. 3. Verdict for the fourth defendant as against the plaintiff. 4. That the second defendant's cross claim as concerns the fourth defendant is dismissed with no order as to costs. 5. That the fourth defendant's cross claim as against the second defendant is dismissed with no order as to costs. 6. With respect to the second defendant's cross claim as against the first and third defendants, that there be a verdict in favour of the second defendant in respect of its cross claim as against the first and third defendants. 7. That the cross claims of the first, third and fourth defendants as against the second defendant are dismissed. 8. With respect to the issue of costs; (a) The plaintiff is to pay the second defendant's costs of the proceedings as agreed or assessed, save that, with respect to each of the cross claims between (a) the first and third defendants and (b) the second defendant the first and third defendants are to pay the second defendant's costs of those cross claims; (b) That the fourth defendant is to pay its own costs except to the extent that it separately incurred costs that were not incurred in common with the costs of the first and third defendant; and (c) Otherwise, the first and third defendants are to pay the plaintiff's costs of the proceedings. CATCHWORDS : NEGLIGENCE – ORDERS AND COSTS – LIABILITY AND DAMAGES – award of damages including interest – determination of cross claims – costs – note that corrections to the primary judgment have been published Edward Wardle (Pltf) Darren John Kick (1D) PARTIES : Warringah Shire Council (2D) Northern Beaches Hang Gliding Club Incorporated (3D) Hang Gliding Federation of Australia Incorporated (4D) FILE NUMBER(S) : SC 20128/03 H Kelly SC/M Holtz (Pltf) COUNSEL : G Miller QC/E E Beilby (1D. 3D, 4D) I Harrison QC/G Sewell (2D) Cutler Hughes & Harris (Pltf) SOLICITORS : Riley Gray-Spencer Lawyers (1D, 3D, 4D) Bull Son & Schmidt (2D) LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 20128/03 LOWER COURT JUDICIAL OFFICER : McClellan CJ at CL LOWER COURT DATE OF DECISION : 26 April 2006 LOWER COURT MEDIUM NEUTRAL CITATION : Wardle v Kick & Ors [2006] NSWSC 327 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN CJ at CL WEDNESDAY 21 JUNE 2006 20128/03 WARDLE v KICK JUDGMENT 1 HIS HONOUR: Following the delivery of my reasons in this matter I invited the parties to bring in short minutes of order incorporating appropriate orders including interest and costs. Those matters have been agreed. In particular the parties are agreed, having regard to my finding, that the plaintiff's award of damages, including interest, may be properly calculated as follows: 1. Non economic loss $130,000.00 Interest on past NEL of $86,667 at 2% for 9.75 years $16,900.00 2. Economic loss $130,000.00 Past and future Interest on past loss x 5% x 9.75 years $46,800.00 $40,705.43 3. Out of pocket expenses Past Future General practitioner – 4 visits per year at $60 per visit ($4.62 pw x 773.25) $3,572.42 Orthopaedic specialist – 1 visit per year at $120 per visit ($2.31 pw x 773.25) $1,786.21 Physiotherapy $50,000.00 Medication $10 pw x 773.25 discounted Total for future treatment $5,000.00 $60,358.63 $4,480.00 $560.00 4. Domestic Services $6,720.00 Past $840.00 (a) Personal care and assistance $11,760.00 12.8.96-8 weeks x 28 hrs pw at $20 ph $24,360.00 November 1996 1 week x 4 hrs pd at $20 ph 8.2.01- 8 weeks x 28 hrs pw at $30 ph July 2001 – 1 week x 28 hrs pw at $30 ph Jan 2004 12 weeks x 28 hrs pw at $35 ph $4,560.00 (b) Handyman assistance (incl window cleaning etc) 12.8.96-23.2.06 – 9.5 yrs x 12 hrs pa at $40 ph (c) Lawnmowing and gardening assistance 12.8.96-23.2.06 – 9.5 yrs x 18 visits pa at $30 ph $5,130.00 (d) Handyman assistance (maintenance and repairs) 12.8.96-23.2.06 – 9.5 yrs x 24 hrs pa at $40 ph (e) Interest on a-d (which total $43,170) for 9.75 years at 5% $9,120.00 Total for past domestic services $21,045.38 $64,215.38 Future $27,968.45 (a) Future handyman assistance (window cleaning and maintenance & repairs) 36 hours pa at $52.25 ph ie $36.17 pw x 773.25 (b) Future lawnmowing 18 visits pa at $30 ie $10.38 pw x 773.25 $8,351.10 Total for future care and assistance $36,319.55 Future equipment needs Easireacher at $50 each 2 years - $0.48 pw Long handled sponge at $21.90 pa - $0.42 pw $1,237.20 Shower chair at $89.80 each 5 years - $0.35 pw $1.60 pw x 773.25 TOTAL $526,536.19 2 In these circumstances the orders which I make are as follows: 1. Verdict for the plaintiff as against the first and third defendants in the sum of $526,536.19. 2. Verdict for the second defendant as against the plaintiff. 3. Verdict for the fourth defendant as against the plaintiff. 4. That the second defendant's cross claim as concerns the fourth defendant is dismissed with no order as to costs. 5. That the fourth defendant's cross claim as against the second defendant is dismissed with no order as to costs. 6. With respect to the second defendant's cross claim as against the first and third defendants, that there be a verdict in favour of the second defendant in respect of its cross claim as against the first and third defendants. 7. That the cross claims of the first, third and fourth defendants as against the second defendant are dismissed. 8. With respect to the issue of costs: (a) The plaintiff is to pay the second defendant's costs of the proceedings as agreed or assessed, save that, with respect to each of the cross claims between (a) the first and third defendants and (b) the second defendant the first and third defendants are to pay the second defendant's costs of those cross claims; (b) That the fourth defendant is to pay its own costs except to the extent that it separately incurred costs that were not incurred in common with the costs of the first and third defendant; and (c) Otherwise, the first and third defendants are to pay the plaintiff's costs of the proceedings. 3 When I published my primary reasons in this matter I indicated that I had made some corrections to the reasons which I had previously published. It was necessary for me to make corrections because the transcript of part of the judgment I delivered ex tempore was in some respects significantly different to the reasons I delivered in court. 4 In some respects I was able to verify this by reason of the typed notes from which I read in open court. Apparently in part of the reasons where I had not previously made significant notes the transcript which was delivered omitted a significant section. The parties were able to verify this from the notes they made. I accept that the published reasons should include that matter and accordingly I have included an amended para [65] in my primary reasons. Other amendments have also been made. 5 In the circumstances it is appropriate that I withdraw the reasons previously published and now publish my reasons in relation to both liability and damages. ********** 30/06/2006 - incorrect amount for verdict - Paragraph(s) 2 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.