Cindy Marienne Jean Van Der Gevel v Australian Capital Territory and the Nominal Defendant [1997] ACTSC 87 (31 October 1997)

SUPREME COURT OF THE ACT

CINDY MARIENNE JEAN VAN DER GEVEL v AUSTRALIAN CAPITAL TERRITORY and THE NOMINAL DEFENDANT
No. SC 152 of 1995
Number of pages - 10
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

NEGLIGENCE - Personal Injury - Attribution of liability between defendants - Plaintiff pedestrian at night along rural road - Car swerving towards her - Plaintiff jumped the guardrail falling 4 metres to concrete floor of unseen underpass - Whether breach of duty of care on behalf of first defendant - Whether risk of injury reasonably foreseeable, albeit remote - No Issue of Principle.

DAMAGES - Assessment - Personal Injury - Motor Vehicle Accident - Multiple fractures to vertebrae - Fracture to right wrist - Ongoing disability - Residual earning capacity - No Issue of Principle.

HEARING

CANBERRA, 14, 15 and 16 October 1997(hearing), 31 October 1997 (decision)

31:10:1997

Appearances

Counsel for the Plaintiff: Mr G Stretton

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the First Defendant: Mr C Erskine

Instructing Solicitors: ACT Government Solicitor

Counsel for the Second Defendant: Mr M McDonogh

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

Order:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $243,286.66.

2. Judgment be entered for the plaintiff against the second defendant in the sum of $121,643.34.

3. The first defendant pay two-thirds of the plaintiff's costs and the second defendant pay one-third of the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising out of an accident which occurred on the evening of 10 September 1994. The plaintiff was a pedestrian, walking along the edge of Coulter Drive in a southerly direction, approaching oncoming traffic. Coulter Drive connects the suburbs of Belconnen with central and southern Canberra. The plaintiff was going in search of her partner's motor vehicle which she believed had been left on the side of Coulter Drive when he had been apprehended earlier that evening for driving while intoxicated. The plaintiff was walking alongside a steel guard barrier when a car containing a group of young men approached, slowed down and weaved towards her. The plaintiff, a young woman alone on a lonely stretch of road at night, understandably feared for her safety, and she decided to step over the guard barrier to avoid the oncoming vehicle. While for most of its length the area beyond the guard barrier is a sloping grassy verge, the point at which the plaintiff stepped over was the point at which had been constructed an underpass to allow horses and stock to pass from the surrounding rural leases under Coulter Drive. The underpass was some 4 metres below the level of the road, and the plaintiff fell, sustaining severe injuries.

The extent of the plaintiff's injuries were not in question at the hearing. Indeed the plaintiff was not cross examined as to her injuries or her claimed past and future economic loss. The real issue for determination was whether liability could be found against the Australian Capital Territory, as the owner and operator of the road and underpass as well as against the driver of the motor vehicle.

This action was originally brought solely against the Territory. The pleadings were amended in November 1996 and the action was brought in its present form against both the Territory and the Nominal Defendant. The motor vehicle which swerved towards the plaintiff was never identified, and the Nominal Defendant accepted that due search having been undertaken, liability did lie against the Nominal Defendant for the actions of the motor vehicle, which counsel for the Nominal Defendant conceded were negligent. The Nominal Defendant joined the plaintiff in arguing that liability ought also be found against the Territory.

It is appropriate to note that counsel raised with me the issue of my previous period as Minister for Urban Services in the Government of this Territory. All counsel indicated that they saw this as no barrier to my sitting in this matter.

These proceedings were opened briefly late on the first day of hearing following the conclusion of another matter, and counsel on that occasion agreed that this would be an appropriate case for a view to be undertaken of the scene of the accident. This was arranged for before normal court sitting time on the second day of hearing. This was an appropriate course in the circumstances of this case. A view now forms part of the evidence in proceedings, pursuant to s.54 of the Evidence Act which provides that

"The Court ... may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection."

Coulter Drive forms part of the road network which connects the geographically diverse suburbs of Canberra. I was advised that it is classified as a rural road, but it was agreed that it served to connect the suburbs of Belconnen with the main roadways that connect to the central area of Canberra and to the southern suburbs. It is constructed as a single carriageway in each direction, with a broad paved shoulder area which was frequently described in the course of the hearing as an emergency stopping lane. The area on both sides of the road forms part of a rural lease. This land, and the land south of the "T" intersection which Coulter Drive forms with William Hovell Drive is all part of the same lease. I was advised by counsel that this was all originally operated as a single parcel of land, and that the roadway for William Hovell Drive and Coulter Drive were compulsorily acquired as part of the extension of Canberra's urban areas with the establishment of the Belconnen region in the late 1960's.

Coulter Drive is aligned in a broadly northerly direction, connecting the suburban areas of Cook and Weetangera with William Hovel Drive. It makes a gentle curve to the west as it approaches the suburban development. For much of its length, as was apparent from the view, it is raised somewhat above the surrounding farm land, with a gentle embankment falling away at either side of the paved area. At the scene of the accident, there is a guardfence, of a type described in the engineering reports tendered in the case as a "w beam guardfence". Counsel frequently used the term "Armco barrier" in argument. This is the type of barrier frequently seen on roads throughout Australia.

The accident scene was described by a consulting engineer who reported for the plaintiff in terms which are uncontroversial and may be set out in full.

"The location is about one kilometre south of the roundabout at the intersection of Springvale Drive and Coulter Drive, Weetangera. This intersection is the southern most limit of urban development in South Belconnen, and the accident occurred in a rural area with no street lighting. Coulter Drive is a subarterial road connecting urban neighbourhoods in Belconnen. At the accident location it has been constructed as a two lane rural road with bitumen sealed shoulders 2.4m wide.....Coulter Drive has a relatively straight alignment with marked edglines either side defining the road carriageway. At the accident location the road is on fill, and a safety barrier in the form of a steel guard rail fence, has been erected to prevent errant vehicles from leaving the road embankment. An equestrian underpass has been built beneath the road..."

Much of the engineering evidence, which comprised reports commissioned by both the plaintiff and the defendant, focused on whether the safety barrier at the accident scene had been constructed in accordance with standards laid down by a body known as the National Association of Australian State Road Authorities. This turned on the question of the correct distance a safety barrier should be from a kerb, so as to avoid a danger of a vehicle bouncing off the kerb and over the barrier - described as "ramping". It was argued for the plaintiff that a barrier should either be aligned precisely with the kerb or be a minimum of 3 metres from the kerb, whereas at the scene of the accident it was in fact some 600 mm from the kerb. This argument seemed to me to focus on the correct positioning of the guard barrier from the point of view of its primary purpose, that is to ensure that errant motor vehicles stay on the carriage way . This case turns on an entirely different question. The motor vehicle did not come into contact with the safety barrier at all. Rather, a pedestrian, walking as she should at the edge of the paved area towards oncoming traffic, was confronted with an oncoming vehicle swerving towards her and presenting an imminent danger. She stepped over the safety barrier to avoid that danger. If she had done this for most of the length of the safety barrier she would have stepped onto a grassy verge area sloping down from the road surface. The length of the barrier was not referred to in any of the expert reports, although Counsel and I walked its entire length on the view. For a very small part of this length, perhaps 4 metres, a person stepping over it would not step onto a grassy verge, but into space before striking the concrete floor of the underpass some 4 metres below the road surface.

Counsel for the plaintiff and the Nominal Defendant argued that, while the possibility of a pedestrian stepping over a barrier in the circumstances of this case were slim, they were not so remote as to remove the Territory of any liability. Evidence was before me by way of photographs of pedestrian safety barriers situated beyond a vehicle safety barrier at underpasses in the urban areas of Canberra, and at an underpass on Lady Denman Drive, near a number of prominent tourist landmarks.

The Territory called Mr Leigh Palmer, who manages the Infrastructure Management section in the ACT Department of Urban Services, to give evidence, not as an expert, but as manager of the relevant agency to advise on what standards the Territory applies in construction of underpasses. Mr Palmer said that the level of safety devices incorporated in an underpass will depend upon its location. He said, quite reasonably, that a road authority must always take into account public safety as well as cost, and that while the design at the accident site would not be approved if it was in a suburban street, it was appropriate for a rural road. The more complex form of secondary pedestrian barrier located at an underpass on Lady Denman Drive was, said Mr Palmer, justified because of the likelihood of significant pedestrian traffic in that area due to its proximity to a range of tourist facilities.

Counsel for the Territory urged that no liability be found. He said that a road authority could not be held liable for all the consequences of pedestrians choosing to step over a safety barrier. He said that along highways in Australia there were many hundreds, indeed thousands, of miles of safety barriers similar to that at the accident site, and that there may be many hazards beyond such barriers. To hold an authority liable for the consequences of a person stepping beyond such a barrier would, he said, be an unreasonable burden on a highway authority.

In so far as he refers to the reasonably foreseeable hazards beyond a steel safety barrier, I have considerable sympathy with this argument. A person who steps over a barrier and falls down an embankment, for example, could hardly be guarded against, save by providing pedestrian barriers for the entire length of embankments or cuttings. The presence of the safety barrier could in these circumstances be seen as a sufficient warning to a pedestrian that there is an embankment. In the circumstances of the present case, however, the Territory erected a safety barrier along a considerable length of raised roadway, with an embankment on either side. For a very short space of this barrier, was a sudden and severe fall to the floor of a concrete underpass which the Territory had constructed under the road. It seems to me that no warning at all was provided of this hazard, and that a pedestrian at night could be expected to know that beyond the barrier was a gentle embankment, but had no way of knowing that for a very short length of the barrier it concealed a potentially fatal hazard.

The standard to be applied to public authorities in the construction of public facilities is well set out in the decision of Mason J as he then was in the decision of Wyong Shire Council v Shirt [1980] HCA 12; (1979-80) 146 CLR 40 at 46-7. His Honour there sets out a twofold test. He makes the preliminary point that liability will only flow if a risk is foreseeable, but cautions that

"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 is not foreseeable."

A similar proposition was made by Walsh J in Schiller v Mulgrave Shire Council [1972] HCA 60; (1972) 129 CLR 116 at 131.

In this case I find that while the risk of a pedestrian stepping over the vehicular safety barrier at Coulter Drive is unlikely, it is foreseeable.

Mason J then set out the test:

"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 a class of persons including the plaintiff."

In this case the Territory has constructed an underpass which presents a steep drop of some 4 metres to a concrete floor immediately beyond a standard safety barrier, which extends for a considerable distance in an area which generally comprises a gentle sloped embankment falling away from a raised road area. The area is not suburban, but is approximately 1 kilometre south of the nearest suburban development along the path of Coulter Drive. Evidence was provided that the nearest houses in Cook are about 600-700 metres away by route of a dirt roadway from behind the houses which connects to Coulter Drive north of the accident scene. It seems to me that such a construction in such an area must be seen to involve a risk of injury to persons who may be walking along the roadway. Counsel for the Nominal Defendant referred to the risk such a structure could present to neighbourhood children, and his point is well taken.

Mason J continues:

"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."

In the circumstances of the present case, counsel for the Territory argued that it would be unreasonable to expect the Territory to provide supplementary barriers beyond the safety barrier in rural roadways. Counsel for the plaintiff and the Nominal Defendant agreed that the standard of pedestrian barriers used in suburban streets would be inappropriate, but that some form of warning should have been provided to alert a pedestrian to the presence of the extreme danger of the underpass situated in an area which was generally safe. The plaintiff pleaded the case by way of failure to erect any, or any proper pedestrian barrier above the underpass, and failing to provide any or any proper warning to the plaintiff of the risk of falling if she stepped over the guard fence, and failing to provide any or any proper warning to the plaintiff of the existence of the underpass beneath Coulter Drive.

Applying the test enunciated by Mason J to the facts of this case, I am satisfied that the Territory ought to have provided some form of warning or protection against the extraordinary hazard of a steep fall to an underpass concealed beneath the roadway. I thus find that the Territory was in breach of a duty of care to the plaintiff.

In so finding I should not be taken to be saying that a road authority is liable for any consequences of a pedestrian electing to step beyond a vehicular safety barrier, or be seen to be imposing any unrealistic obligation on a public authority to provide elaborate and expensive pedestrian barrier fencing along potentially hundreds of kilometres or roadways in rural area to guard against the possibility of pedestrians electing to step beyond such vehicular barriers. But where a vehicular safety barrier is erected to ensure errant vehicles remain within a carriageway, and in specific short sections of long areas of vehicular safety barriers a particular hazard is constructed, some warning or safety device is appropriate. This could take the form simply of a raised section of the vehicular barrier for the duration of the particular hazard. This would at least alert a pedestrian to the fact that something in that particular area is different to the surrounding areas.

I thus find that both the first and second defendants are liable for the plaintiff's injuries.

The plaintiff was born in 1971 in Canberra. She completed her education to Year 12 standard at Copeland College. While completing secondary college she did some bookkeeping for the family business, as well as waitressing and kitchenhand work. After completing her schooling in 1988 she worked on a full time basis in an office and bookkeeping capacity for a number of firms in Canberra. In 1990 she obtained a position in the accounts section at the University of Canberra.

The plaintiff was diagnosed in 1991 with Hodgkin's disease, which required an intensive course of chemotherapy. She resigned her position because of the rigours of her treatment, and was able to successfully recover from this serious setback to her health. For a number of months in 1992 after her recovery she and her partner moved to Queensland, and at this time she again found work in a bookkeeping capacity. On their return to Canberra the plaintiff again found work, this time in the accounts section of a prominent hotel, on a full time basis.

The plaintiff gave birth to a daughter in March 1993, and ceased work. In June 1994 she obtained part time employment back at the University of Canberra. She started working 15 hours, but said that it was her intention to build these hours up to full time work and arrange care for her child. Ms Abraham, her supervisor, gave unchallenged evidence that confirmed that the plaintiff was very well thought of as an employee.

The accident occurred when the plaintiff had been back in the workforce for some three months. Ms Van Der Gevel described her fear as she was confronted with the youths in the oncoming car, and her decision to move off the road way to the safety of the embankment beyond the vehicular safety barrier. She described her horror as she fell away into the darkness. She described how she sought to protect her head and twist as she fell so as to minimise her injuries. She described the impact, and coming to some time later at the bottom of the overpass, and how she struggled to crawl up to the road surface. She described how she then tried to flag down oncoming traffic for assistance. A vehicle did stop, but the plaintiff was incoherent, and there was some delay, and further distress for the plaintiff, as the motorist assured himself that the plaintiff was indeed in need of assistance by requiring her to stand in the glare of his headlights while he assessed the situation.

The plaintiff asked to be taken home, but the motorist formed the view that she was indeed quite severely injured, and he took her to Calvary Hospital. She presented there to the Emergency Department at around 11.30 pm, complaining of lower back pain and pain in her tail bone. She was examined and allowed to go home. While at the Emergency Department she was quite distressed, and a police officer, who was there for other purposes, noticed that she appeared to be hyperventilating, and stayed for some time talking to her and assisting her to calm down. A letter from the Head of the Legal Branch of the Australian Federal Police confirms that this conversation took place, and that the plaintiff advised the police officer of the circumstances of the accident and the unknown vehicle. The police officer in fact undertook no further enquires, but this letter does establish that the plaintiff did advise the police of what had occurred.

X-rays were taken at Calvary and these revealed crush fractures at L2 and L3 and a fracture of the right wrist. A plaster was applied to her wrist on 12 September and she was advised to attend her general practitioner.

The plaintiff attended Dr Hannaford, an orthopaedic surgeon, through the fracture clinic at Calvary Hospital. He continued to be involved in her care. In a report to her solicitors of 9 March 1995 he said

"In summary Miss Van Der Gevel suffered an undisplaced fracture of the distal right radius and minimal crush fractures of T10, T11, L2 and L3 in September 1994. These injuries are consistent with the history of the accident as related to me. The radial fracture has made a full and complete recovery, unfortunately there is persisting pain in the mid thoracic and lumbar spines. The prognosis for the wrist is excellent, however I am reserving judgment on her thoracic and lumbar spine at this stage as it may take a further twelve to eighteen months for full resolution of her symptoms."

The plaintiff said that she returned to work on 19 September 1994, a week after the plaster cast had been applied to her wrist, but that she had increasing difficulty in undertaking her duties. Ms Abraham confirmed that the plaintiff was trying hard to fulfill her duties, but that it was apparent to her colleagues that she was in pain. Her colleagues would assist her in any tasks involving lifting or carrying, but she had increasing time off due to pain. Ms Abraham said that on occasions she would, as the plaintiff's supervisor, order her to go home. A brace was fitted to the plaintiff's back in March 1995, but she had increasing difficulty. She fell pregnant again in early 1995, and found that she could not continue with her work, ceasing at the end of April 1995. She said that, were it not for the injury, her intention would have been to have worked up until shortly before the birth of her child, and then resume part time work thereafter, building up eventually to full time hours. Her son was born in October 1995.

Dr Hannaford provided further reports in November 1996 and September 1997, which confirm that the plaintiff continues to suffer back pain. In his report of 17 September 1997 he said

"Based on the history and previous examination it seems very likely that Ms Van Der Gevel's back discomfort will continue for a long time and may render it very difficult for her to tolerate an occupation which requires either prolonged sitting or prolonged standing and certainly would obviate any occupation requiring lifting. If Mrs Van Der Gevel is to return to the work force I believe she would need to be in an occupation which would allow her to stand from a sitting position on a regular basis to stretch her back to allow some measure of comfort during the working day. It is quite likely that she will continue to suffer some level of ongoing back discomfort throughout her life."

Her general practitioner, Dr Dawson, has provided a series of reports which confirm that the plaintiff suffers ongoing pain in her back, and occasional wrist pain. Dr Ashman, an orthopaedic surgeon, examined the plaintiff in August 1996 at the request of her general practitioner, and further examined her in November 1996 for the purposes of a medico legal report. He found significant restriction of movement to the lumbar spine to 50% of normal, and said

"In summary this lady has sustained significant back injuries as a result of her fall in September 1994 and continues to be disabled by these symptoms. In my opinion her condition is permanent and there is very little chance that her painful symptoms will resolve in the near future. She will require ongoing pain management therapy but as an orthopaedic surgeon I am not able to speculate on the frequency, nature or cost of these treatments. She does not require surgical intervention in her spine."

The plaintiff was examined twice by Dr Keiller for the purposes of medico legal reports. Dr Keiller stated in his report of November 7 1996 that

"...she has genuine back pain of, I believe, some severity, associated with the healed stable fractures."

He found that there was no indication for surgery. In relation to future treatment he said

"She will incur some expense for conservative management in the short term, but she should not be involved indefinitely in prolonged, expensive forms of physical treatment which until now have not shown lasting benefit in over a year. She will probably need to use mild analgesics from time to time, and is liable to increasing discomfort in the winter months. Short courses of physiotherapy may then be appropriate and helpful."

Dr Keiller expressed the view that the plaintiff should be able to return to work as an accounts clerk with restrictions, and on a part time and graded return basis.

The plaintiff has clearly suffered a significant and ongoing injury as a result of this accident. The circumstances of the accident were distressing, and the plaintiff has suffered a series of fractures which, although they have healed, are productive of significant ongoing pain and restrictions. The plaintiff has, on the view of all the doctors, adopted a very positive attitude to getting on with her life in the face of these restrictions, and continues to undertake all household tasks, albeit with difficulties, and the need to use a brace. She has difficulties lifting her children. These injuries and ongoing disabilities must sound in a significant award of general damages going well beyond what would be appropriate for ongoing back and neck pain of a purely soft tissue injury basis. In relation to general damages, I award the sum of $80,000. I assess half of this to be in respect of past loss, generating interest of $2,511, resulting in an award of $82,511.

The plaintiff has claimed damages for past loss of earning capacity based on 136 weeks of absence to the date of trial at $200.64 net which was the plaintiff's wage for the 15 hours she was working at the time of the accident. It is appropriate to make an award on this basis, which amounts to $27,287, which generates interest of $3,412 making a total award for past economic loss of $30,699.

In relation to future loss, the plaintiff claims on the basis of an ongoing loss of 15 hours a week at the rate of $200.64. It seems to me that this is an appropriate, and indeed if anything a modest basis for a claim. The plaintiff gave evidence, which was unchallenged, that after she returned to work in 1994 working 15 hours it was her intention to build up her hours to achieve full time work. Her supervisor spoke highly of her, and it is entirely reasonable to assume that she would have achieved this goal, and indeed perhaps gone on beyond the level of her then position. The plaintiff makes a claim for an ongoing loss of 15 hours on the basis that she may well have some residual capacity to work, as outlined by Dr Keiller and other doctors, but that she will, at the least, be unable to achieve full time work or the promotions or other advancement which she may otherwise have expected. It seems to me that this is a reasonable and realistic claim, and it was not challenged by counsel for the defendants. It is appropriate, taking into account all of the evidence in this case, to adopt this approach, and award, in respect of future economic loss, the sum of $242,373, an award based on an ongoing loss to normal retirement age of 15 hours a week at a rate of $200.64.

Counsel for the plaintiff urged that it would not be appropriate to apply the conventional 15% discount for contingencies for an award calculated in this way. He argued that the claim was modest, as the plaintiff's present incapacity was on any view greater than 15 hours a week, and that the approach adopted itself reflected a range of contingencies. Counsel referred me to the decision of the New South Wales Court of Appeal in Norris V Blake [No2] (1997) 41 NSWLR 49 where the court found that it was inappropriate to automatically adopt a normal discount for contingencies in the context of a case where the assessment of future loss itself reflected a range of possibilities. Clarke JA cited with approval the observations of Windeyer J in Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 544 where His Honour said

"Moreover, the generalisation, that there must be a 'scaling down' for contingencies, seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful. A particular plaintiff must have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."

I accept the argument that, on the facts of this case, and taking into account the assumptions utilised in calculating the claim for damages for future economic loss, it would be inappropriate, and indeed involve a double discount, to apply the conventional discount for contingencies to the figure calculated in this case in respect of future economic loss.

There is a claim for past out of pocket expenses of $4,347.10, which I award. In respect of future out of pocket expenses, the plaintiff claims a sum of $5,000 by way of a discretionary award to reflect the need for future medication, physiotherapy and doctors visits. This seems quite appropriate on the evidence before me, and I so award.

This amounts to a total award to the plaintiff of $364,930.10, which it is appropriate to round to $364,930, which I award, plus costs.

The final matter for determination is to divide this between the two defendants. Counsel for the Territory primarily based his submissions on the proposition that there should be no finding of liability against the Territory, but said that, if the Territory was to be found liable, the distribution of damages should reflect the proposition that the motor vehicle was the primary cause of the accident. Counsel for both the plaintiff and the Nominal Defendant submitted the contrary, that the primary responsibility for the plaintiff's injuries and ongoing disabilities should lie on the Territory.

The facts of this case certainly demonstrate the fallacy of attempting to apply a "but for" test to the causation of damages in personal injuries claims. This much, however, can be said. The motor vehicle was clearly negligent, and it was this negligence which caused the plaintiff to seek shelter behind the vehicular safety barrier. Had she done this at virtually any other point along Coulter Drive where a vehicular barrier is erected, she would have found safety on a grassy verge. At the particular point where she crossed, however, she faced a severe drop to a hard surface. There was no warning or protection, and I have found this to amount to negligence on the part of the Territory as the owner and operator of the road. On these considerations, I find myself in broad agreement with counsel for the plaintiff and the second defendant. I attribute responsibility at two thirds to the first defendant, and one third to the second defendant.

This results in a judgment of $243,286.66 against the first defendant, and $121,643.34 against the second defendant, with each to contribute to the plaintiff's costs in the proportion of their liability.