Craig Deane Pollock (An Infant) By His Next Friend Allan Pollock v Janice Robinson and Ernest Russell [1993] ACTSC 50 (7 May 1993)

SUPREME COURT OF THE ACT

CRAIG DEANE POLLOCK (an infant) by his next friend ALLAN POLLOCK v. JANICE
ROBINSON and ERNEST RUSSELL
No. SC1450 of 1982
Number of pages - 12

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

HEARING

CANBERRA, 9-10 March 1993
7:5:1993

Counsel for the Plaintiff: J. Brewster

Instructing Solicitors: Baker Deane and Nutt

Counsel for the Defendants: I. W. Nash

Instructing Solicitors: Snedden Hall and Gallop

ORDER

The court orders that:
1. Judgment be entered for the plaintiff against both defendants for

$717,790.80.
2. The defendant pay the plaintiff's costs.
3. I direct that the judgment monies be paid into Court.
4. I grant liberty to apply within 14 days for directions about
payment out.
5. In the absence of any such application, relisted for further
directions on 21 May 1993.

DECISION

MASTER HOGAN This is an action for damages for personal injury sustained by the plaintiff in a fall from a balcony on 6 November 1980.

2. At the time of the accident the plaintiff was just 16 months old, having been born on 5 July 1979. His mother made arrangements for him to be minded for a short time by the first defendant at the home owned by the second defendant, in which the first and second defendant lived.

3. At the back of the house was a balcony, enclosed by iron railings. From the balcony to a concrete area below was a drop, which has not been accurately measured, but which appears from the photographs in evidence to be at least 4 or 5 metres.

4. The railing or balustrade that enclosed the balcony consisted of an upper and lower horizontal rail, joined by vertical uprights. To an observer looking at right angles to the railing the uprights were straight, and the gaps between the uprights varied between 12.4 and 12.7 centimetres. In the plane between the two horizontal rails, that is, to an observer looking along the structure, the uprights curved outwards, the bulge being greater towards the bottom of the uprights.

5. Although the horizontal rails were fixed to the brick wall at each end, at a distance of about the width of a brick from the outside edge of the wall, the curvature of the vertical rails was such that, at the end of the railing, the gap between the last upright and the edge of the wall measured 15.5 centimetres. The extent of the gap can be clearly seen in the photograph in Exhibit "D".

6. For more than 6 months before the date of the accident the plaintiff's parents, both of whom worked, had been leaving the plaintiff and his sister Kelly, then aged about 2 1/2 years, at the defendants' home to be minded, for varying periods between 8.00 am and 5.00 pm, five days a week, for payment of $100.00 a fortnight.

7. By the date of the accident the plaintiff could walk and was beginning to speak. His development appeared normal.

8. On 6 November 1980 the plaintiff's mother left the children with the first defendant at the defendants' home at about 8.00 am.

9. At about 9.00 am Mrs Robinson opened the sliding door between the kitchen and the balcony, allowing the two children to go out on to the balcony. She then began to work in the kitchen, occasionally going on to the balcony to intervene in an argument the two children were having about a ball they were playing with. As she worked in the kitchen the balcony was easily visible, and she looked out frequently to observe them.

10. After they had been there for about 10 minutes Kelly came to the door and said, "Craigie's down there." She ran out, looked over the railing, and saw the plaintiff lying on the concrete below, beneath the part of the balcony near the wall.

11. Mrs Robinson gave evidence that she had never before seen either child attempting to get through the railings. Her impression was that the plaintiff was too plump to fit through any of the gaps between the railings. She had never, before the accident, appreciated that the gap at the end of the railings was wider than the other gaps.

12. In a type written document setting out a statement that she is said to have made to Constable Haynes on that day there is recorded the following:

"I believe that it was not possible for Craig or Kelly to have
got through the bars on the railing of the balcony, as several
times recently, Craig had got his head caught between the bars
trying to get through and I have had to go out and release him
when he has been caught. I firmly believe that it was safe for
the children to play on the balcony."

13. The document containing that statement was not signed by her, although it is endorsed by Constable Haynes, "Statement taken and signature witnessed by me on 6.1.80".

14. In cross-examination, when asked about the document, she said, "Well, all I can say is he'd either misinterpreted something I'd said, but I most definitely didn't say it, because it never happened on any other occasion."

15. Constable Haynes was not called to give evidence. One could speculate on why, if she did not say it, he would have put that passage in the statement. He expressed his view that she had not been in any way negligent. On the evidence I am not prepared to find that she did make that statement to him. But it is not a crucial issue.

16. If Craig had got his head caught between the bars on any previous occasion, I think it would probably have been at some point other than at the end of the railing. I think it is clear from the photographs that a child could not get through those gaps, and no matter what had happened previously, if anything indeed had happened, I accept that Mrs Robinson did not in fact perceive that there was any risk that the plaintiff could get through any gap in the railings.

17. There was in fact only one point at which he could get through. I do not think for a moment that if she had adverted to the possibility that he could do so she would have let the children play on the balcony unattended.

18. The question is, however, an objective one, that is, whether a reasonable person ought to have observed the possibility.

19. The height of the balcony above the concrete was such that it was obvious that if a toddler fell from it very serious injury would be likely to result. The magnitude of the risk was very great.

20. Children of the plaintiff's age have no appreciation of danger from such a structure. They can be expected to try to get through any gap that presents itself to them. I do not think that the degree of probability that such a child would try to get through that gap was at all remote.

21. I think that the potential for harm and the magnitude of the risk were both so great that a reasonably prudent person would have inspected the railings carefully before allowing a 16 months old child to play on that balcony, at any rate unless an adult was physically present on the balcony the whole time. On a careful inspection it can easily be seen that the gap at the wall end of the railing is larger than the other gaps, because of the curvature of the upright. I do not think that I am being wise after the event, simply because the child did demonstrate that he could get through the gap. In my opinion, an inspection carried out with the degree of care called for by the gravity of the potential harm would have revealed the possibility, indeed the likelihood, that a child such as the plaintiff could get through the gap and be seriously injured.

22. The response of the reasonable person in the position of the first defendant to such a risk was simple and inexpensive. It would be not to open the door, and not to let the children play on the balcony, at least unless she was physically present with them all the time.

23. I therefore find that the first defendant failed to take reasonable care for the safety of the plaintiff by allowing the plaintiff to go on to the balcony, when, had she inspected the balcony with the degree of care that was called for by its height above the concrete paving below, she ought to have realised that it would be possible for the plaintiff to get through the gap between the railing and the wall, she not intending to be present at all times with the plaintiff on the balcony so as to prevent him from getting through the gap.

24. The duty of care of which that was a breach arose out of the fact that she had undertaken for reward to herself to look after the plaintiff at the relevant time on the premises at which she was living.

25. The second defendant was not a party to that arrangement, and he did not owe to the plaintiff the same duty of care. He was the owner, and had the care and control, of the premises on which the first defendant carried on the child minding activity. He and she were living together as husband and wife. He knew that the first defendant was caring for the plaintiff on a regular basis, for reward to her. There is no evidence that he obtained any direct benefit from that arrangement, which had been made between the first defendant and the plaintiff's mother.

26. There is no evidence that, subjectively, he was aware of any danger, arising out of the state of his premises, to the plaintiff.

27. I think that it should have been reasonably within his contemplation that the plaintiff might be allowed on to the balcony by the first defendant.

28. In answers to interrogatories he stated that he had "observed the balcony and believed it to be a safe area for the plaintiff to play whilst being supervised".

29. When asked in the interrogatories what action he took to ensure that the plaintiff would not fall from the balcony he replied, "I observed the balcony area and believed it was safe."

30. He did not take any action to ensure that the plaintiff would not gain access to the balcony without the supervision of an adult. He did not take any measures to ensure that any gaps in the balustrade on the balcony were not large enough to allow a child to pass through them.

31. There was available a means that could have been taken to ensure that the gap was not large enough, demonstrated by the fact that since the accident a metal bar has been welded across the space.

32. The second defendant did not give oral evidence.

33. In applying the law as laid down by the majority in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1986-1987) 162 CLR 479 (especially at 488), the first step is to determine whether the second defendant owed a duty of care to the plaintiff under the ordinary principles of the law of negligence. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the plaintiff.

34. The second defendant knew that the first defendant, with whom he was living, was, on a regular basis, caring for children on the premises that he owned and in which he and she both lived.

35. He was therefore under a duty to the plaintiff to take care that the premises were reasonably safe for that activity involving the plaintiff.

36. The measure of whether he discharged that duty is what a reasonable man would do in the circumstances by way of response to the foreseeable risk.

37. I think that in this case the remarks of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 at 47, 48 are particularly apposite. After expressing the view that the decision of the Privy Council in The Wagon Mound (No 2) should be followed, he continued:

"In essence its correctness depends upon a recognition of the
general proposition that foreseeability of the risk of injury and
the likelihood of that risk occurring are two different things. I
am of course referring to foreseeability in the context of breach
of duty, the concept of foreseeability in connexion with the
existence of the duty of care involving a more generalized enquiry.
A risk of injury which is quite unlikely to occur, such as that
which happened in Bolton v Stone (42), may nevertheless be plainly
foreseeable. Consequently, when we speak of a risk of injury as
being "foreseeable" we are not making any statement as to the
probability or improbability of its occurrence, save that we are
implicitly asserting that the risk is not one that is far-fetched
or fanciful. Although it is true to say that in many cases the
greater the degree of probability of the occurrence of the risk the
more readily it will be perceived to be a risk, it certainly does
not follow that a risk which is unlikely to occur is not
foreseeable.
In deciding whether there has been a breach of the duty of care the
tribunal of fact must first ask itself whether a reasonable man in
the defendant's position would have foreseen that his conduct
involved a risk of injury to the plaintiff or to a class of persons
including the plaintiff. If the answer be in the affirmative, it
is then for the tribunal of fact to determine what a reasonable man
would do by way of response to the risk. The perception of the
reasonable man's response calls for a consideration of the
magnitude of the risk and the degree of the probability of its
occurrence, along with the expense, difficulty and inconvenience
of taking alleviating action and any other conflicting
responsibilities which the defendant may have. It is only when
these matters are balanced out that the tribunal of fact can
confidently assert what is the standard of response to be ascribed
to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk
of injury which is remote in the sense that it is extremely unlikely
to occur may nevertheless constitute a foreseeable risk. A risk
which is not far-fetched or fanciful is real and therefore
foreseeable. But, as we have seen, the existence of a foreseeable
risk of injury does not in itself dispose of the question of breach
of duty. The magnitude of the risk and its degree of probability
remain to be considered with other relevant factors."

38. The second defendant knew what the balcony was like. He ought to have realised that small children such as the plaintiff might be allowed there to play. There is no suggestion that he had any reason to expect that they would not be allowed on the balcony by the first defendant. The magnitude of the risk and the degree of probability of its occurrence were, for him also, such that he should have turned his mind to the question of what he should do to protect children such as the plaintiff from harm. There was no particular expense or difficulty involved in adding the horizontal bar to the balustrade. The failure of the second defendant to take reasonable care for the safety of the plaintiff consisted in his failing to carry out that work before the accident happened.

39. There will therefore be judgment for the plaintiff against both defendants.

40. There was no dispute between the parties on the question of the quantum of damages.

41. When Mrs Robinson saw the plaintiff lying on the concrete slab below, she rushed downstairs, rang for an ambulance, and waited with him till it arrived. He was moving, but unconscious. When the ambulance arrived she was able to ring the plaintiff's mother to inform her of what had happened.

42. Craig was taken to Royal Canberra Hospital, and admitted under the care of Dr Newcombe, neurosurgeon, and Dr Crawford, consultant paediatrician. He was diagnosed as suffering from a right parietal depressed fracture, cerebral laceration and cerebral contusion. An immediate operation was performed to elevate the depressed fracture and clean the tear in the right parietal lobe of the brain.

43. He was in a coma for some weeks. A CT scan on 2 December 1980 revealed the development of a porencephalic cyst in the traumatised right parietal and temporal lobe of the brain.

44. While he was in hospital he was examined by Dr Wong See, ophthalmologist, who found that the right sided brain damage had affected his vision. There was complete blindness of the left side of the visual field from both eyes.

45. He was discharged home from hospital just before Christmas 1980. He was not yet mobile. He was suffering from a left hemiparesis.

46. During the first half of 1981 Dr Wong See noticed some slight improvement in his left vision, and he progressively began to be able to walk again.

47. In May 1981 Dr Newcombe found that the depressed fracture element was surrounded by comminuted fractures, and in particular a fracture extending down into the posterior temporal region and base of the skull. On 8 June 1981 he operated to close the skull defect, and inserted a shunt to prevent further expansion of the porencephalic cyst.

48. Subsequently he developed several severe attacks of meningitis. Further investigations established that cerebro spinal fluid was passing through a fracture in the base of the skull into the middle ear and thence to the nose.

49. On 3 November 1981 Dr Newcombe operated again, to close the defect. As he recovered from that operation he suffered recurrent septicaemia due to an infection. He required prolonged intensive care and antibiotic therapy. The operation failed to overcome the discharge of the cerebro spinal fluid into the nose.

50. The plaintiff was admitted to Royal Alexandra Hospital at Camperdown, where after a number of investigations, on 25 November 1981 Mr Ian Johnston performed a craniotomy to close the defect in the dura and repair the basal skull fracture. He suffered intermittent fever as he recovered from the operation, and a further operation was needed on 10 December 1991 to insert a shunt to deal with the build up of fluid within the ventricular system. He was discharged home again on 29 January 1982. He was readmitted for follow up CT scan and assessment on 14 March 1982. The hemiparesis was continuing to improve, and he appeared to be active and alert.

51. In June 1982, when he was almost 3 years old, Dr Crawford reported that he was left with the residual defect in the left field of vision, and left hemiplegia. There was quite a degree of spasticity in his left arm and leg. The achilles tendon was beginning to tighten. He was having regular physiotherapy and occupational therapy. His speech was slow, but improving. He was on constant medication to reduce the risk of fitting.

52. At the age of 4 he began to attend Hartley Street Special School.

53. Towards the end of 1983 his mother noticed episodes of vacantness, during which his arm jerked. Dr Crawford had an EEG performed, which disclosed epileptic activity. His medication was adjusted.

54. At the end of 1985 Dr Walters, the paediatrician to Hartley Street School, reported on his experience at the school. He was making slow but steady progress, though at a rate behind that of normal children.

55. In April 1986 he was again admitted to the Children's Hospital at Camperdown, where Mr Johnston performed a cranioplasty to repair the cranial defect with acrylic.

56. About the middle of 1987 Dr McNicol operated to elongate his tendo-achilles, and also to alleviate a left sided pronation curvature of the left forearm. By November of 1987 he was able to jump. He had a range of passive supination of the forearm, but nothing active.

57. When Dr McNicol reviewed him on 28 July 1989, at the age of 10, there was a deformity of the left foot that required correction. On 14 September 1989 Dr McNicol performed a medial displacement osteotomy of the left os calcis. His post operative course was uneventful, and the plaster and wires were removed under general anaesthesia on 26 October 1989.

58. Mr Johnston reviewed Craig's condition in January 1990. His neurological status was by then stable. His disabilities were, in summary, an impairment of intellectual function, a moderately severe left hemiparesis and a left sided loss of visual field. He also had post traumatic epilepsy, which was well controlled by anticonvulsants.

59. Dr McNicol reported that in April 1990 his hindfoot was in the neutral position, his left leg was 0.5 centimetres shorter than the right, and his hamstrings were tight. His forearm showed a good range of passive supination. There had been no recurrence of the pronation curvature. He prescribed continuation of the physiotherapy and rehabilitation.

60. Dr Crawford reviewed him in September 1990. He reported on the difficulties involved in finding the best type of medication for the epilepsy. There were some continuing focal seizures in the left arm. He was able to walk independently but with some difficulty. He was unable to use his left arm for any useful activity. He would always need supervision and assistance with day to day activities such as dressing and bathing. He thought that his life expectancy was reduced slightly, maybe into the 50's or 60's.

61. At about the same time Dr Procopis, paediatric neurologist at the Children's Hospital, reported as follows:

"Prognosis
Although Craig's seizures are much better now than previously he
still has a moderately severe seizure disorder and I think that
it is unlikely that it will improve spontaneously or with the
use of drugs. Antiepileptic surgery is a real option in this boy
and if the seizures continue to be a problem, as they most likely
will, then investigations to determine the exact site of seizure
discharge and to determine whether that area of brain can be
removed without causing him any further neurological damage
should be undertaken. At this stage it cannot be said whether he
will be a candidate for surgery but if the investigations show
that he is, then there is a likelihood of marked reduction or
cure of his seizures. Of those patients who have a favourable
response to surgery about 50% show either a marked reduction in
their drug requirement or may not require any drugs at all.
There is no likelihood of his left sided weakness improving any
further."

62. Dr Crawford's most recent report, in February 1993, summarises Craig's present condition:

"Craig is now 13 years and 7 months old. He continues to have
focal epilepsy involving the left arm in a rhythmic jerking
movement which lasts for up to 5 minutes. These episodes occur
2-3 times a day. At home mother hasn't been really aware of
blanking episodes but she hasn't had the opportunity to discuss
this with his school teachers at Woden Special School to see if
they are observing any. Occasionally she feels Craig doesn't
respond as quickly as he should to the spoken word but she hasn't
been able to actually observe blanking.
He still has significant intellectual delay. Reading has not
improved significantly over the past 2-3 years and he still is at
about Grade 1 level according to mother. He can understand simple
sentences. He can count up to 100 or so but when dealing with
money he doesn't have any idea about subtraction. Social skills
and survival skills are being taught at Woden Special School. He
does have a lot of dribbling which bothers mother. I am sending a
copy of this letter to Dr Peter Procopis, Neurologist at the
Children's Hospital, Camperdown, to see whether he has any
ideas on controlling that won't be too unpleasant for Craig.
The left hemiparesis is still quite dense with spasticity and
wasting of the upper limb and the left lower limb. The left upper
limb is the most affected with stiffening of all joints and marked
weakness. The left leg is smaller and shorter than the right and
Craig walks with a typical hemiparetic limp. He tends to scuff and
wear out his left shoe quite quickly. He has a left homonymous
field defect. His ventricular peritoneal shunt seems to be working
well and his optic fundi appear normal."

63. Dr Plushke, ophthalmic surgeon, also reported in February 1993. He has been observing Craig's progress since 1984. His age and condition in the early part of that period made it difficult to establish visual acuities, or to prove that there was a true hemianopia. By mid 1991 he thought it more probable that Craig had more of a perceptual attention deficit rather than a true hemianopia, but the practical effect for his every day living would seem to me to be the same in either case. His present condition does not require any ophthalmological treatment, and Dr Plushke did not expect his accommodative ability to deteriorate beyond age related changes. There is a divergent deviation and nystagmus which have so far not been embarrassing and do not warrant treatment, but should there be any uncosmetic development they would need to be attended to.

64. Dr Crawford advises that regular review of his epilepsy will be required, but should not involve additional medical expense. The shunt continues to function well, but in the future might need replacing. Further orthopaedic procedures may be necessary on the leg and possibly the arm, but would depend on functional impairment and could only be ascertained with the passage of time. I do not propose to assign a separate figure to the possibilities of future ophthalmological or surgical treatment, but to take the contingency into account in assessing general damages.

65. He will need to continue to take anticonvulsants at least twice a day for an indefinite period and possibly for the rest of his life. There was no evidence about the cost of medication. It is not included among the items that make up the claim for past out of pocket expenses. I assume therefore that the plaintiff has obtained, and will continue to obtain, his medication at no expense to himself or his parents.

66. His visual and physical handicaps make him prone to injury, and he will be dependent on continued supervisory care throughout his life.

67. Dr Corry examined the plaintiff for the defendants in September 1984 and September 1991. His independent assessments are the same as those of Dr Crawford.

68. The detailed reports from Hartley Street Centre and Woden Special School are in evidence. They demonstrate that he displays enthusiasm and determination to join in activities despite his disabilities. His scholastic abilities remain at elementary school level. His mother confirmed that he still needs daily supervision, but the degree of care required has reduced considerably in recent years.

69. This is a very difficult case in which to assess damages, and I am constrained to complain that the submissions of counsel were exiguous in the extreme. Counsel for the plaintiff put the claim as being one for "general damages for pain and suffering, etcetera; out of pockets, Griffiths v Kerkemeyer, future economic loss."

70. Counsel for the defendant submitted that future economic loss should be approached on the basis that the plaintiff will require sheltered workshop employment in adult life, and that in relation to the claim for Griffiths v Kerkemeyer the number of hours has stabilised at about an hour a day. Apart from that he does not need any additional care over and above what a child of that age would need.

71. In light of those submissions I shall do my best not to fall into appellable error, but if I do so it should be clear where the responsibility lies.

72. Although he is at present lovingly cared for by his parents and siblings, the statistical probabilities are that he will outlive at least his parents. There was no evidence and there were no submissions about the economic consequences of that fact.

73. He is at present under an age disability. But it is obvious that when he attains his majority he will not be capable of managing his affairs. There is no evidence about the effect that his disability will have on the costs of administering the fund that will result from this judgment. See, for example, Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 and GIO v Rosniak (1992) Aust Torts Reports 81-178. It is not for me to give advice on evidence to the parties, and if there is no evidence about a particular matter and no submissions are made about it I do not see how I can lawfully take it into account.

74. Craig will spend the whole of his conscious life with the physical and intellectual disabilities that resulted from the accident. They do not in themselves cause pain. He is because of them at increased risk of accident, with resultant pain and suffering. There is no evidence of emotional impairment, but it must be doubted that he would ever be able to marry, for example. There is no suggestion that he is not fully aware of his disabilities, and of the differences between himself and uninjured boys of his age.

75. For general damages I award $175,000. $75,000 of that I would attribute to the future. In assessing the interest on the past component I take account of the fact that the multitude of operations took place in the early part of the period. I award $35,000 for interest.

76. The out of pocket expenses are agreed at $20,258.80. There was no suggestion that interest should be awarded on that item.

77. The calculation of the value of the services provided by the plaintiff's family was not contested, and totalled $124,532. I award that sum for the past. The need for care will continue indefinitely into the future, at about 7 hours a week, valued at $14.80 an hour. The present value of $103.60 a week for the plaintiff's actuarial life expectancy of 59 years at 3 percent compound interest is $150,864. In addition to the normal contingencies I take into account the greater risk of accident to the plaintiff arising from his disabilities, and discount that figure by about 25 percent. I award $113,000 for the value of future care. Whatever income earning capacity he would have had has been completely destroyed, in my view. I take Dr Corry's comment to mean that if he were to gain employment it would have to be in a sheltered workshop. But I do not think his abilities will ever improve to the extent that he would be able to gain a place even there.

78. Because he was injured at such an early age there can be no evidence of what his capacity would have been. Blackburn CJ, in D'Ambrosio v De Souza Lima (1985) 60 ACTR 18, approved and followed the approach of Mahoney JA in Settree v Roberts (1982) 1 NSWLR 649 in cases of this kind. That is, to recognise that in assessing compensation for loss of income earning capacity in a case such as this the Court is involved directly in the valuation of the capacity or chance to earn money in the future. It is involved, not in a process of calculation, but in the making of a social or value judgment, in a similar way to quantifying general damages in accordance with current ideas of fairness and moderation.

79. I do not think that I should consider myself bound by the fact that Blackburn CJ assessed the damages in that case at $100,000 in 1985, or make an attempt to adjust that figure by a guess at the rate of inflation since them. There is evidence in this case that the full time adult average weekly ordinary time earnings in November 1992 were $623.00 a week. There are present to my mind the types of sums that are awarded for loss of future income earning capacity in cases where the evidence enables calculations to be made. I think that an award of at least $250,000 is called for, in accordance with current ideas of fairness and moderation, for the loss of the opportunity to earn money in the future.

80. The total award is therefore made up as follows:

General damages $175,000.00
Interest 35,000.00
Out of pocket expenses 20,258.80
Post Griffith v Kerkemeyer 124,532.00
Future Griffith v Kerkemeyer 113,000.00
Loss of future income earning capacity 250,000.00
TOTAL $717,790.80

81. I direct the entry of judgment for the plaintiff in the sum of $717,790.80.

82. I order the defendant to pay the plaintiff's costs.

83. I direct that the judgment monies be paid into Court.

84. I give liberty to apply within 14 days for directions about payment out of any moneys.

85. I direct that, in the absence of any such application, the action be relisted for further directions on 21 May 1993.