O'Meara v Anu & Dominican Fathers [2002] ACTSC 115 (15 November 2002)

Last Updated: 12 December 2002

SKYE HELEN O'MEARA v AUSTRALIAN NATIONAL UNIVERSITY & DOMINICAN FATHERS [2002] ACTSC 115 (15 November 2002)

CATCHWORDS

NEGLIGENCE - Occupier of premises - fall from first floor balustrade - duty of care - plaintiff fails to exercise reasonable care for self

CONTRIBUTORY NEGLIGENCE - Plaintiff attempts to sit on first floor balustrade - falls

DAMAGES - Personal injury - assessment - no issue of principle

Barrett v Ministry of Defence [1994] EWCA Civ 7; [1995] 3 All ER 87

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512

Cardone v Trustees of the Christian Brothers [1994] ACTSC 85

Desmond v Cullen [2001] NSWCA 238, (2001) 34 MVR 186

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166

March v E & MH Stramere Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Postnet Pty Ltd v Wood [2002] ACTCA 5

Richmond Valley Council v Standing [2002] NSWCA 359

Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431

South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; Aust Torts Reports 81-670

Wood v Posnet [2002] ACTSC 48

Woods v Multi Sport Holdings Pty Ltd [2002] HCA 9, (2002) 186 ALR 145

No. SC 697 of 1997

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 15 November 2002

IN THE SUPREME COURT OF THE )

) No. SC 697 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SKYE HELEN O'MEARA

Plaintiff

AND: AUSTRALIAN NATIONAL UNIVERISTY

First Defendant

AND: DOMINICAN FATHERS

Second Defendant

ORDER

Coram: Master T. Connolly

Date: 15 November 2002

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the Second Defendant

2. Plaintiff to pay the Second Defendant's costs

1. This is a claim for damages for personal injuries arising from an accident which occurred late in the evening of 25 October 1996 when the plaintiff fell from a balcony at John XXIII College, a residential college at the Australian National University in Canberra run by the second defendant. The plaintiff, who was a 21 year old senior resident in the college and a student of fine arts at the University, had attended a sports dinner at the college dining hall earlier in the evening, and had then adjourned with other students and guests to the bar area, which was on the first floor of the college. Alcohol had been consumed during the evening. She says that at around midnight the tavern bar was about to close, and she joined other people in an outside balcony area, where people were discussing whether to go on to other entertainment venues. She was wearing a ball gown and high-heeled shoes, which she said were uncomfortable. She says that she endeavoured to sit on the balcony ledge, and said

"The ledge was above my bottom and I stuck my hands on it and lifted myself up. My shoe, I remember my shoe hitting the back of the wall and immediately falling over."

I am satisfied that as she attempted to lift herself backwards up on to a seating position on the balcony wall or balustrade, she fell over backwards.

2. The plaintiff sustained serious injuries when she fell about 5 metres to the garden area below the balcony. An ambulance was summonsed, and she was conveyed to the Canberra Hospital, and underwent immediate surgery.

3. The plaintiff settled her case against the first defendant the week before the hearing, and a consent judgment for $30,000 with no order as to costs was entered on 21 August 2002. The matter proceeded to hearing as an action against the second defendant only. The plaintiffs' claim is that the second defendant was negligent in permitting or allowing the construction of a balustrade that was of insufficient height and of too great a width, so that it formed a method of seating and in failing to warn students about the dangers of the balustrade. It is also pleaded that the defendant failed to prohibit students from sitting on the balustrade when it knew or ought to have known that it was dangerous to do so, and generally failed to supervise the students.

4. The second defendant denied breach of a duty of care, and argued in the alternative that if there had been a breach, there was contributory negligence on the part of the plaintiff in

"consuming alcohol to the extent that her ability to take heed for her own safety was diminished in that she attempted to use the top of the balustrade as a seat knowing that there was a substantial drop to the other side".

Liability

5. The primary liability issues in this case essentially involve two aspects of a claimed breach of care, going first to the nature of the actual design and construction of the balustrade, and secondly to the questions of failure to warn and supervise. In respect of the actual construction of the balustrade, there was agreement between the two building experts who presented reports for the plaintiff and the defendant that the balustrade, which was constructed in about 1967, met the standards of the relevant building codes at the time of construction, but did not meet the present standards for new constructions. The expert reports were provided by Mr Colin Simpson, a consulting engineer, for the plaintiff, and Dr John Cooke, of the Faculty of the Built Environment at the University of New South Wales, for the defendant.

6. Mr Simpson in his report says that the balustrade was 870mm high and of solid construction, and Dr Cooke said that it was 880 mm high. Despite this discrepancy, both agreed that at the time of construction the balcony met the relevant building code which Mr Simpson said provided that

"A hand rail or balustrade shall be provided along the side of any required balcony or the like and that the hand rail or balustrade wall be fixed at a vertical height of not less than 835 mm above the floor surface of the balcony or the like."

7. Both experts agreed that the wall met the building code at the time of construction in regard to height, and there was also agreement in relation to width, although there was again a discrepancy in measurements. Mr Simpson recorded the balcony as having a width at the top of 90 cm, and said in his report

"There is no regulation that the writer is aware of that provides a maximum width for the top surface of such a balustrade and therefore, from a building regulation or standard point of view, there can be no criticism made of the 90mm width of the concrete balustrade that existed at the time of the plaintiff's accident...As at 1967, the writer is of the view that there was probably little expectation that the top of the balustrade may be used for seating, and on that basis the 90mm width would probably be acceptable."

8. Dr Cooke agreed that there was no regulation then or now in relation to width, but said

"the width of the balustrade (110mm) is too narrow for the top edge to provide a comfortable seat."

9. The experts were also in agreement that the present Building Code of Australia, which was settled in 1990 and came into force in various parts of Australia from 1993, would require a higher balustrade on a new building. The new code sets a higher standard of a minimum height of 1 metre for balconies where there is a vertical drop of greater than 3 metres. Dr Cooke measured the vertical drop from the balcony to the ground floor level in this case at 3.46 metres. The new code retains 865mm as the height for balconies where there is a lower vertical drop. The experts were in agreement that the balcony at the point where the plaintiff fell does not comply with the present Building Code of Australia requirements, in that it fails to reach the 1 metre minimum height.

10. The fact that a building does not comply with a present building code does not, however, of itself establish a breach of a duty of care, as was made clear by the High Court in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166. In that case a child was injured when he walked into a glass door at a house his parents were renting, and the evidence established that the glass door met the relevant building standards when the house was constructed in the early 1960's, but did not meet more contemporary standards that since 1973 require thicker toughened safety glass in new doors, and require the new safer glass to be installed when an old door requires repair or replacement. The evidence was the glass door was in its original state and had not been repaired or replaced since the new standard was established.

11. This decision, it seems to me, is inconsistent with the decision of Higgins J in this court in Cardone v Trustees of the Christian Brothers [1994] ACTSC 85. In that case His Honour was considering a fall by a student through an older glass door which complied with the relevant safety standards when it was build in 1966, and he said

"In my view, whatever may have been reasonable in 1966, once it became an Australian Standard for safety glass to be installed, it was negligent for the defendant not to ensure that relevant glass panels were replaced with safety glass as soon as practicable after it became, or should have become, aware of that safety standard."

12. Counsel for the plaintiff urged me to apply this reasoning to the present case. Although such a decision would normally be binding on me as Master, it seems to me that the reasoning of His Honour is not consistent with the later decision of the High Court, which of course I must follow and apply.

13. Although much of the discussion in Jones v Bartlett went to a claimed duty to inspect the premises, it seems to me that it is implicit in the judgments that compliance with the standards in force at the time of construction is a good answer to a claim, at least where the newer standards are not made retrospective. Gleeson CJ said at [23]

"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean that it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tough glass to be put into the door that caused the injury unless, for some reasons, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense."

14. It seems to me that executive governments and parliaments have made a conscious decision to impose new safety standards for building design on a prospective, and not a retrospective basis. For a court to then impose a common law standard that requires all building owners to ensure that buildings always reflect contemporary standards would, it seems to me, be for the court to inappropriately trespass into the policy making area. The requirement that all new balconies at a height greater than three metres- in effect all new constructions from the first floor level and above- have an increased height from 865mm to 1 metre was no doubt an informed decision to improve safety standards. The code does not apply to existing buildings- if it did, all heritage wrought iron first floor balconies, for example, would have to be substantially modified. To hold that it amounts to a breach of duty of care for a building occupier to fail to renovate to reflect the latest Building Code of Australia standard would in effect be for a court to require an expressly non-retrospective executive instrument to be applied retrospectively, and this, it seems to me, would be to counter the decision of Ministers with responsibility for implementing building standards, and Parliaments that have approved the regulations. It seems to me to be consistent with the approach of the High Court in Jones v Bartlett to hold that there was no breach of duty of care in not renovating the balcony to reflect the 1993 standards, even though there is evidence that, after this tragic accident, the College did make renovations, at relatively modest cost, to increase the height of the balcony by adding a steel rail. The relatively modest cost of replacement glass in Jones v Bartlett did not affect that result. Negligence is not here established merely by failure to implement the latest Building Code of Australia Standards.

15. That is not, however, the end of the matter. The obligation owed by the second defendant as the occupier of the premises to the plaintiff as a residential tenant and a person lawfully on the premises to enjoy a social occasion is

"that which arise under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury ....The nature and extent of the duty in the particular instance depends upon the circumstances of the case." (per Dawson J in Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 at 343).

As Gummow and Hayne JJ pointed out in Jones v Bartlett

"What constitutes the taking of reasonable steps will, as Dawson J noted in Northern Sandblasting, depend on all the circumstances of the case. What is reasonable of premises let for the purpose of residential housing may be less demanding than for premises let for such purposes as the running of a school, or the conduct of a hotel or club serving liquor". (at 174)

16. It was argued by the plaintiff that the serving of alcohol from the student bar in the first floor common room should have alerted the second defendant to the need to ensure that the balcony was safe, and that the circumstances of the service of alcohol had changed since the original construction of the college in the 1960's. This, it was argued, meant that it was not a sufficient answer for the defendant to establish that the balcony was constructed in accordance with the appropriate safety standards at the time of construction.

17. It is the plaintiff's case that the first floor area of the college changed its use in about 1990 to a bar area. Mr Simpson the plaintiff's expert said in his report

"With the change in use of the rooms now consisting of the junior common room, the bar and the tavern, and with their close proximity to the external balcony, the writer is of the view that a very basic audit ought to have been made regarding the safety of the area bearing in mind the new usage to which the rooms and their environs were to be put to. Clearly, with the serving of alcohol and/or food stuffs from the bar, there will be a clear expectation that there will be prolonged and short term socialisation of those utilising the new facilities and that, with the limited internal space available, the nearby and convenient balcony area is likely to, and must be expected to be, used as part of the social area. In the opinion of the writer there ought to have been, at least at that time (about 1990) a ready realisation that the area and the expected usage was to be changed markedly and that the existing balustrade would form a convenient "seat" and or/railing over which persons such as the Plaintiff or other students would be expected to lean. Indeed, with the common area below and the table and chairs provided, the balcony and its balustrade must become an area whereby students must be expected to concentrate."

18. The expert in this passage expresses certain views as to the duty of care he expects should apply. I note that in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 Callinan J said of a similar report:

A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here" ([355])

19. The evidence establishes that there has been a bar or tavern operating in the common room area adjoining the first floor balcony area for many years. Father Saunders, who was Dean and Deputy Master of the College between 1981 and 1983, said that in those years there was a small room running off the junior common room at the opposite end from where the present bar is that served as a bar and a room for storing alcohol that was consumed at functions at the junior common room. In answers to interrogatories in 2001 Martin Gibson, bursar of the College, said that the present bar or tavern was installed between 1989 and 1992. He said that at that time the sale and consumption of liquor was governed by an Order of the University Council, being the John XXIII College (Liquor) Order. The plaintiff tendered a letter from the relevant ACT regulatory agency, being the Registrar of Liquor Licences, in which the Registrar, Mr Brown, said on 27 April 2000 that an applicant for a liquor licence would need to satisfy the Registrar in respect of the standard of the premises that

"building work has been completed substantially in accordance with the prescribed requirements of the Building Code of Australia and is considered fit for occupancy and use. The standards or requirements for balustrades or other barriers would need to comply with D2.16 of the Building Code of Australia."

20. I am satisfied from this that the licensing authorities would consider compliance with the relevant building standards an essential precondition for the grant of a licence. The evidence is that there had been a form of bar on the premises since at least 1981. As the changes to the premises establishing the present bar or tavern occurred, on the evidence before me, at some time between 1989 and 1992, it would follow that the relevant standard would have been the building code in force at 1992, and on the evidence of Mr Simpson and Dr Cooke, this again was the code requiring a minimum height of 865mm, which it is common ground has been complied with. It seems to me that this does not take the matter any further, as the safety standard that applied when the bar was renovated was, on the evidence, a standard that was complied with at the time of the renovation.

21. In Jones v Bartlett Gummow and Hayne JJ discussed at paras 176ff the law relating to dangerous defects and common use, and made the point that although the common law requires an occupier to take reasonable care to avoid dangerous defects, there are many items which are dangerous, but only if misused. They said (at 179)

"the danger must appear in the course of the use of the premises for the purpose for which they were let. The reasonableness of the conduct engaged in by the person injured will be important. The danger my arise only to those performing acts unauthorised or uncontemplated as part of the purpose for which the tenancy was let. If so, there ordinarily will not be a dangerous defect."

22. It must be recalled that the evidence here is not that the balcony gave way or in some way collapsed. The evidence is that the balcony has been in the form it was on the night of this accident since the college was built in 1966. Various witnesses for the defendant gave evidence that there had never been a fall from this balcony. The plaintiff fell as she attempted to push herself up backwards, dressed in a ball gown and evening shoes, after an evenings socialising in which alcohol had been consumed. The defendants case is simply that the plaintiff, her judgment affected by alcohol, misjudged her foolhardy attempt to hoist herself up to sit on what was obviously a dangerous position, being an attempt to balance to sit on a first floor balcony.

23. On this basis the defendant says simply that the cause of her injury was her decision to try to sit on the first floor balustrade while intoxicated. In Postnet Pty Ltd v Wood [2002] ACTCA 5 the Court of Appeal noted that March v E & MH Stramere Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 requires a common sense approach to causation. They said that it was true that in that case injuries would not have occurred had access to an awning been prevented, much as here it is argued that the injury would not have occurred had the plaintiff not been able to sit on the balustrade, and continued

"we are conscious of the observation of Kirby J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 269 that the decision in March v Stramere did not involve expulsion of the "but for" test from consideration in relation to issues of causation but merely pointed to the need for the results thereby produced to be tempered by "value judgments" and "policy considerations". However, it is clear that the application of that test does not, of itself, provide an adequate basis for finding a defendant liable for an injury "which, though it could be traced back to the defendants wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff". See March v Stramere per Mason CJ at 517. In our opinion the injuries suffered by the respondent fell within this description" (per Crispin P, Higgins and Gray JJ) at [14].

It seems to me that the same can be said here.

24. It was common ground that the plaintiff had consumed alcohol on the evening of the accident. Her evidence was that she had about four or five glasses of wine with her meal (transcript p 24,25) and then one or two beers in the common room area (transcript p 26). She said that she was feeling good, and that she had a major appointment the next day to hang some of her work for an assessment, so she "didn't want to have too much of a big party." She said in cross-examination that she was "slightly affected" by alcohol at the time of the fall. She agreed that the wine glasses were refilled by students acting a waiters through the course of the dinner, but she rejected as impossible the suggestion by counsel for the defendant that she could have consumed up to 12 glasses of wine over the evening. She agreed in cross-examination that on this particular evening at the time of the accident she did not feel as though she could safely drive a motor vehicle.

25. A blood sample was taken from the plaintiff on her admission to hospital, and the report of this in the hospital records shows a blood alcohol concentration of 46.2mmol/L. Dr Dauncey, a consultant pharmacologist who gave evidence for the defendant, said that this translated into the more familiar form of alcohol concentration used for the purposes of drink driving legislation to a concentration of 0.21. She said however that it was possible (and she did not know on the material before her) that the hospital had tested plasma rather than whole blood, which would give a higher reading. Her opinion, contained in her report, was that her blood alcohol concentration at the time of the accident was in the range of 0.167 to 0.202. The legal limit for driving is of course 0.05, so both of these indicate a substantial degree of intoxication.

26. Dr Dauncey said that this would have involved the consumption over the evening of about 12 standard drinks, and that, if she had in fact consumed about 6 standard drinks (which she took to be 3-4 glasses of red wine and 2 cans of beer) over the evening her blood alcohol reading at about 1.30 am when the test was taken would only have been in the range of .05. This is consistent with the plaintiff's self-assessment that on her stated consumption she did not think she was fit to drive. Dr Dauncey was vigorously cross examined, but maintained the validity of her report and its reasoning.

27. It seems to me unnecessary to make a precise finding of fact as to the state of the plaintiff's sobriety at the point of the accident, beyond the finding that it is common ground that she had consumed alcohol to the point where her judgment was affected- on Dr Dauncey's evidence due to her high range blood alcohol concentration of between 0.16 and 0.2, and on the plaintiff's evidence that it was her assessment of her state of sobriety that she would not have been able to drive. That a person might be so affected by alcohol in the vicinity of a licensed bar area, says the plaintiff, reinforces the need for the defendant, who maintained those licensed premises, to ensure that reasonable steps were taken to ensure the safety of patrons, and this, it is said, included the need to ensure that the balcony was made safe.

28. While the fact that the premises were used for the service of liquor is a relevant factor to be taken into account in determining what constitutes reasonable steps to ensure the safety of premises (per Gummow and Hayne JJ in Jones v Bartlett at [174]) the law in Australia has not, it seems to me, gone so far as to create a special duty of care on innkeepers in relation to the safety of patrons. A person who drinks to the point where they take actions that are clearly dangerous cannot, at least on the authority of two recent decisions of the New South Wales Court of Appeal, hope to recover in an action against the person who sold them the liquor. (Desmond v Cullen [2001] NSWCA 238, (2001) 34 MVR 186, South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; Aust Torts Reports 81-670). These cases both involved persons who injured themselves, as the court found, after leaving licensed premises, whereas what is in issue here is an ´injury occurring on the licensed premises.

29. The plaintiff pleaded her case on the basis, inter alia, that the fact that the defendant served and sold alcohol from the first floor bar and tavern meant that the defendant should have taken measures to improve the safety of the balustrade, and in this sense it is necessary to examine the question of the degree to which the service of alcohol imposes an additional duty on a defendant. It seems to me that the reasoning in Desmond v Cullen and South Tweed Heads Rugby League Football Club v Cole is compelling in rejecting an additional and new duty of care arising from the sale or supply of alcohol. The same conclusion was reached by the English Court of Appeal in Barrett v Ministry of Defence [1994] EWCA Civ 7; [1995] 3 All ER 87 where Beldham LJ said (at 95)

"I can see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount that he can safely consume or to exercise control in his own interest as well as in the interest of others. To dilute self responsibility and to blame one adult for another's lack of self control is neither just nor reasonable and in the development of the law of negligence and increment too far."

30. The second defendant, it seems to me, is not to be held liable merely on the basis that it was a supplier of alcohol, and that it operated a premises on the first floor that had a balcony that, although compliant with the relevant building standards at the time of construction, and at the time of the renovations to the bar and tavern in 1989-92, was not compliant with the more recent Building Code of Australia standard. An innkeepers type liability was not pleaded in this case, but Father Fowler, who was Master of the College at the time, was taken to the College's policy on alcohol consumption, which indicated that students should not consume alcohol to the point of intoxication or beyond 0.02, and he conceded that on this night students would have exceeded this limit. Although this of itself may indicate a failure to supervise, in that it indicates a failure to require compliance with college policy, it does not, it seems to me, amount to establishing liability for the reasons set out above.

31. The balcony was clearly and apparently on the first floor, and it was clear and apparent that below the balcony was a drop of at least 3 metres to a paved area below. The plaintiff denied in cross examination that this was obviously dangerous, in a passage that I set out in full:

"You didn't consider that it was dangerous to sit on that ledge? No, sir

In hindsight do you consider it was dangerous, knowing what you know now?- I fell off the balcony.

Do you consider what you did was dangerous?- No, sir

No. Despite the fact that you hoisted yourself up and just fell straight over backwards? You're not serious?- I- in hindsight I think we had a false sense of security about it maybe."

32. I find it difficult to accept that it could not be obvious that it is dangerous to attempt to hoist oneself up in order to sit on a balcony top on a first floor of licensed premises with a drop below to ground level .

33. The significance of the plaintiff's claim that she had a "false sense of security" goes to the claim that the defendant knew that students regularly used the balcony balustrade as a seating position. In these circumstances, it was said, the defendant owed a duty to warn the students of the danger, and to take steps to ensure that this clearly dangerous activity was discontinued.

34. Since the accident the College has placed signs on the balcony warning students against the risk of sitting on the balustrade, and the plaintiff has pleaded failure to warn by way of signage. The cost of the signs was not in evidence, but clearly it would be minimal. Given the obvious risk presented by balancing on a first floor balustrade, I am not satisfied that signage was necessary. In Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at 478 Kirby J said that

"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."

Romeo was in the context of a person who, in an intoxicated state, walked off a cliff in a park, and in a sense the proposition that there should be signs at all cliff areas in national parks saying "Warning, cliff" (and, the accident having occurred at night, the signs being appropriately illuminated) may now seem obviously unsustainable.

35. In Woods v Multi Sport Holdings Pty Ltd [2002] HCA 9, (2002) 186 ALR 145 the plaintiff was injured by being struck in the eye while playing indoor cricket. The trial judge rejected the claim that there was a duty of care to warn players that they faced injury. In the High Court report Gleeson CJ states that

"French DCJ concluded that the risk of a player being struck in the face by a cricket ball was so obvious that reasonableness did not require the respondet to warn players about it ." (at [43]).

His Honour referred to Kirby J's statement from Romeo referred to above and said:

"It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all of the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J said is, with respect, fair comment. That is how French DCJ and the Full Court understood it, and they did not more than indicate that they regarded it as apposite to the present case. There is no error in that."

36. It seems to me that in the circumstances of this case there would generally be no duty on the defendant to erect signs to warn students at a first floor bar that it was unwise to perch on a balcony outside the bar area. The danger, it seems to me, is obvious, and applies to all licensed premises throughout the land where food or drink is consumed on a balcony. Adult patrons, and the plaintiff was an adult at the time, do not need a sign to warn them that it is unwise to sit on a narrow balustrade above a drop of in excess of 4 metres. As the High Court stated in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512

"In dealing with questions of breach of duty, while there is to be taken into account as a `variable factor' the results of `inadvertence' or `thoughtlessness', a proper starting point may be the proposition that persons using the road will themselves take ordinary care" Per Gaudron, McHugh and Gummow JJ at [63]

37. I am satisfied that it is not reasonable to require a general warning. The situation may be otherwise, however, if it be established on the evidence that the defendant knew that there was a general practice of students using this area to sit dangerously on the balustrade, and if the College, knowing of this dangerous practice, took no steps to prevent it and avoid the obvious risk of a student falling.

38. In Wood v Posnet [2002] ACTSC 48 I found the operator of licensed premises liable in circumstances where it was acknowledged by the night club operator that it knew that patrons regularly exited from a first floor window to get fresh air by standing on an awning. It was not contested in that case that the nightclub knew of this practice and took no steps to prevent it. In the present case, the degree of knowledge of this practice was strongly in issue. The Court of Appeal has reversed that finding of liability (Postnet Pty Ltd v Wood [2002] ACTCA 5) on the basis that the accident there involved a fall from adjoining premises, and so the defendant's breach of duty of care was not the cause of the plaintiff's misfortune. The Court of Appeal agreed that, had the plaintiff slipped or fallen on the defendants premises after exiting through the window, liability would be made out [12].

39. It was the plaintiffs' case that students regularly used this wall as a seat, and that the second defendant knew this. The plaintiff was asked what she meant about a "false sense of security" in sitting on the wall, and she replied "with people sitting there all the time."

40. The plaintiff called a number of witnesses who said that it was a common practice to sit on the balcony. Ms Brown was a resident at the time of the accident. She said that it was a regular occurrence to see people sitting on the balustrade (transcript p 110), and in cross-examination she maintained that it was quite a common thing, and she had sat on the balustrade herself, although it was not comfortable (p 118)

41. Mr Mann was also a student at the relevant time, and he said it was a regular occurrence for students to sit on the concrete balustrade. He also said that on one occasion the Master of the College asked students to keep the noise down, and that at that time there were students sitting on the ledge, and they were not told to get off the ledge. In cross-examination he identified the Master at the time as Father Waite, although he agreed in cross-examination that at that time the people were "just leaning against the ledge".(p 129) He said that there was another occasion that he recalled when Father Fowler spoke with a group of students to keep the noise down, and he says that he was then sitting on the ledge, but others were leaning on the balustrade . In evidence-in-chief he had not said that he was himself sitting on the ledge, and he agreed that, when he was asked whether anyone had been sitting on the ledge when Father Fowler asked about the noise, answered "there would have been" and did not identify himself as having been sitting on the ledge. He agreed these were not consistent answers.

42. Ms Ryan was also a student at the time. She said it was a regular occurrence for people to "lean against and sit" on the balustrade.(transcript p 138), and in cross-examination she maintained that it was common to see people both lean on the ledge, and sit on it with their feet in the air. Similar evidence was given by Ms Keans, also a student at the time.

43. Evidence to the contrary effect was given by various witnesses for the defendant. Ms Smith was president of the Residents Association at the relevant time, and was at the dinner when the plaintiff was injured. She said that she could not recall ever seeing anyone sitting on the wall. In cross-examination she agreed that the balustrade may have been convenient for people to lean against, but maintained that she had never seen anyone sitting on the ledge.

44. Mr Isaacs was also a student at the time. He said that he had seen students sitting on the ledge , but only, he said, along a stretch of the balustrade which is directly above the roof of the ground floor structure, so that there would be only a minimal drop. He said that he had only ever seen the plaintiff sit on the balustrade where it drops directly to the ground level. In cross examination he said that it was common for people to lean against the wall, and for people to sit on the ledge where it was directly above a roof, but that he had only ever seen the plaintiff sitting on the balustrade in the area overhanging the courtyard.

45. Father Fowler was the Deputy Master at the college from April 1996, and Master from September 1996. He said that he had frequently seen students leaning against the balustrade on the first floor, which he would pass several times daily going from the dining areas to his office, but that he had never noticed students sitting on the top of the balustrade. He maintained that he had not seen people sitting on the balustrade, or the ledge as it was sometimes called, but that leaning on it was common. In cross-examination it was put to him that

"you could appreciate that it may well be that somebody during the course of that evening might be tempted to use the ledge as a seat if there was no other seating available, is that not correct?"

to which he answered

"That could be a temptation to do that, yes".

He then said that he was aware of this now, but had not been aware of it at the time.

46. Father Saunders had been Deputy Master at the College between 1981 and 1983. He gave evidence relating to the sale of liquor at the College at this time and the existence of a bar area, but he was also asked whether he had ever observed persons sitting on the ledge with their feet off the ground, and he said that he could not recall that, although he could recall people leaning on the balustrade. He agreed in cross-examination that he had only been asked about this recently, and his recollections would not be clear.

47. There is clearly a conflict in the evidence as to the prevalence of persons sitting on the balustrade. The plaintiff brings four persons who were fellow students at the time who say it was common for persons to sit up on the ledge. Mr Mann went the furthest, because he said in cross-examination, although not in chief, that he had been sitting on the ledge when Father Fowler spoke to a group of students about noise. Father Fowler had no recollection of this, but was adamant that he had never seen students sitting on the ledge. The defendant brought two fellow students, who said that while it was common for students to lean against the balustrade, it was not common for them to sit. Ms Smith said she had never seen anyone sitting on the ledge, and Mr Isaacs said he had never seen anyone sit where the plaintiff fell, although he had seen students sit at another area where there is a roof directly below, so that any fall would be only to the equivalent of ground level. Father Fowler said he had never seen a student sit on the ledge, and Father Saunders had no recollection of anyone sitting on the ledge, although he agreed that he had last been at the College in 1983 and had only recently been asked to think about this question.

48. On this evidence, it seems to me, the plaintiff has established that some students have sat on the wall, but the plaintiff has not established that this was known to the college authorities, which is in contrast to the position in Woods v Posnet. I accept that all the witnesses were doing their best to be truthful, and that indeed some students have never seen anyone sit on the wall, and others have. Where there is a direct conflict, as there only is, it seems to me, between Mr Mann and Father Fowler, I prefer the evidence of Father Fowler. Mr Mann acknowledged that he only referred to himself sitting on the ledge when Father Fowler was speaking to the students about noise in cross-examination, and that this was not consistent with his evidence-in-chief. This seems to me to be something of an embellishment, and I prefer the evidence on this point of Father Fowler. I am therefore not satisfied that the defendant did in fact have knowledge that some students would sit on the balustrade.

49. Father Fowler acknowledged that, with hindsight, he could see how the balustrade could be used as a seat by students. This concession, it seems to me, reinforces my impression of him as a frank and honest witness, but does not establish the case that the defendant ought to have known that the balustrade was used by students, clearly dangerously, as a seat. The test to establish a duty of care is not, as Gummow and Hayne JJ noted in Jones v Barlett in the context of determining what amounts to a dangerous defect, "an exercise in hindsight"(at [186]). On the evidence I am not satisfied that the college authorities had actual knowledge that some students would engage in this activity, and I am not satisfied that, although in hindsight Father Fowler acknowledged the possibility, the college ought to have taken precautions against students engaging in an obviously dangerous activity, and using part of the premises for an inappropriate purpose. Mere foreseeability does not of itself create a duty of care. As the New South Wales Court of Appeal recently observed in Richmond Valley Council v Standing [2002] NSWCA 359 whether a defendant owes a duty of care to a plaintiff depends on whether there is a reasonably foreseeable risk of harm to a plaintiff exercising reasonable care for her own safety. As Kirby J said in Romeo, an occupier of premises

"is generally entitled to assume that most entrants will take reasonable care for their own safety" [1998] HCA 5; (1998) 192 CLR 431 at 478 [123]

50. I am therefore not satisfied that the plaintiff has established that the defendant was in breach of a duty of care, in tort or contract, and I direct that judgment be entered for the defendant. While the contractual claim was not canvassed extensively in addresses, it seems to me that the extent of an implied contractual term for the College to care for the plaintiff as a tenant also presumes the tenant taking appropriate care for herself. It is nevertheless appropriate for me to continue to consider the issue of contributory negligence, and to proceed to an assessment of damages.

Contributory Negligence 

51. The defendant argues that, if primary liability is established, there should be a finding of contributory negligence, on the basis that the plaintiff, on her own case affected by alcohol in that on her estimation she should not drive a car, chose while dressed in a ball gown and high shoes, to attempt to hoist herself onto a wall, facing away from the wall so that it was a backwards movement, and then toppled over the wall and fell backwards. Counsel for the plaintiff acknowledged that a degree of contributory negligence was present, but argued that this should be assessed at a low level. I find that contributory negligence is established, and in accordance with the apportionment legislation it is appropriate for me to proceed to assess damages and then to determine the extent to which responsibility is to be attributed between the plaintiff and the defendant.

Assessment of Damages

52. The plaintiff was born in October 1974, and the accident occurred just before her 22^nd birthday. She completed her secondary education at McDonald College of Performing Arts at Strathfield in New South Wales, where she transferred in Year 10 primarily due to her interest and enthusiasm for music. She was an accomplished flautist. The school specialises, as the name suggests, in art and music education, and the plaintiff intended to go on with her music, but during years 11 and 12 she grew increasingly interested in the visual arts, and she achieved some distinction in this field, with her art works short listed for "Art Express", a combined High Schools art exhibition. Her teacher gave evidence in very glowing terms of her ability and potential to develop as an artist, with a particular interest in works on a large canvas.

53. She completed her Higher School Certificate successfully, and in 1994 commenced study towards a Bachelor of Visual Arts degree at the Australian National University, and she commenced her residency at the College. The accident occurred towards the end of her third year of study.

54. There is no question that the plaintiff sustained very significant injuries in her fall. She was taken by ambulance to Woden Valley Hospital where she was stabilised and initial critical care was given in respect of her facial and head lacerations, debridement of wounds and stabilising fractures to her right wrist and left elbow by way of operative procedures. Both limbs were placed in plaster casts following these procedures, and she was stabilised for transfer to the Strathfield Private Hospital in Sydney, where she would be closer to her family. This occurred on 28 October 1996.

55. She underwent further procedures under general anaesthetic on 30 October 1996 to correct the fracture to her left elbow, and on 1 November, again under general anaesthetic, she underwent extensive head surgery for multiple reduction and internal fixation of multiple facial fractures. The procedures involved the insertion of wires and plates, fully set out in the medical reports, and this of course necessitated a series of further operative procedures over many months as the time came for the removal of the various plates and wires as the bones regenerated. Ms O'Meara was discharged from hospital for full time rest at home with her parents on 8 November, but they were all aware that many more hospital visits lay in front of them.

56. During this period she received extensive support and assistance from members of her family which, as well as being significant in terms of calculation of damages, no doubt was of great benefit in her period of recovery.

57. There were further attendances at the Strathfield hospital for operations to remove wires on 18 November, 4 December and 9 December, which involved removal of wires in her elbow, wrist and jaw.

58. She learned in December 1996 that she would have to repeat some subjects in her degree due to missing out on the final part of the year as a result of her accident, but she was able to re-enrol in February 1997, finding appropriate off campus accommodation with a group of friends in a share house. I am satisfied that these friends also provided significant assistance to the plaintiff during this period involving household assistance and transportation to and from the university.

59. She attended for dental assessment in January 1997, which confirmed that there was significant damage to her teeth which would require attention over the coming years. She has received root canal therapy on a number of teeth, and the evidence establishes that more procedures will be required over time.

60. She recommenced her studies in the 1997 academic year, but had some problems with her left elbow and right wrist. Wires were removed from the wrist by operation in June 1997, and there was arthroscopic surgery to try to improve range of movement in the left elbow. Dr Roberts, the surgeon, noted a degree of malunion at the site of the fracture. She had a fall some weeks after this procedure, and had her right arm placed in a cast, but no fractures were detected. Dr Roberts recommended a further procedure to her elbow.

61. She had a number of falls during 1997 which placed further stress on her right arm. In August and September she attended twice at Calvary Hospital complaining of jaw pain. Overall, 1997 was a difficult year for the plaintiff, and although she was able to complete some subjects, she still had to repeat some subjects. I am satisfied that this was due to her injuries. I accept that as part of her study for the degree of Bachelor of Visual Arts required her to submit completed art works in her preferred medium of large canvas paintings, her wrist and elbow problems were a significant barrier. In the end she was able to complete all of her course requirements by the end of the 1998 academic year, and achieved her degree with distinction, but a full year after she would otherwise have been expected to complete.

62. In 1999 she returned to Sydney, and began a casual art teacher job at her old school. She continued to receive treatment for her orthopaedic problems, and advice on future plastic surgery in relation to her scarring on the scalp and face. She obtained some retail work in mid-1999, and in September embarked on a trip to Europe with a group of university friends. I accept her evidence that she was somewhat limited in her activities during this three month trip, and that her friends arranged the trip so that it would be achievable for her, while they did more arduous hiking trips before and after her period in Europe.

63. In 2000 Ms O'Meara commenced an Honours degree in Fine Art at the University of New South Wales, which she successfully completed in the appropriate one academic year, culminating in an exhibition of her art work. During the year she underwent surgery to release the ulnar nerve around the left elbow in an attempt to improve left arm mobility, and numbness in her left hand. She continued to undergo various medico legal reviews, and the consistent advice of experts both for the plaintiff and the defendant was that arthritis was a possibility to affect her fracture sites, and that this would present a problem for a person engaged in an artistic career. There is some conflict on the evidence, here, with experts for the defendant indicating that there is less likelihood of osteoarthirtis at the left elbow than the right wrist, although there is general agreement on ongoing restriction of movement.

64. After the successful completion of her Honours degree she obtained admission to a Masters of Fine Art degree at the ANU, which she deferred for twelve months. She obtained casual employment at the Dendy Cinema in Sydney, and sought, unsuccessfully, a number of curatorial jobs in the Sydney art world. She enrolled in the Masters program in 2002, and is doing well.

65. There have been concerns expressed in the medical reports, particularly in the period closer to the injury, that the plaintiff's trauma to the head may have long-term implications in terms of neurological function. Dr Langeluddecke, a psychologist and Dr Wolfenden, a neurologist, were both of the view that she has some residual short-term memory loss and emotional lability consistent with traumatic brain injury. In his report of July 1999 Dr Wolfenden noted that this was fortunately relatively mild, and had not precluded her from completing her degree, although he said that it could make further training or education a little more difficult. Dr Langeluddecke agreed in cross-examination that she had in fact been able to complete her honours year, involving a thesis as well as production of works, and was doing well in her Masters degree, and that the effects were mild or minor, and should not prevent her from completing her present study, or undertaking a diploma in education in order to teach.

66. The plaintiffs' ambition would be to go on to be a successful visual artist, but she is conscious that her wrist will continue to be painful and restrict her movements. She recognises, as did Mrs Elliot, an art teacher, that this can be a difficult thing to achieve, and that financial success in this field can depend as much on public taste in the art market as on technical skill and capacity. There is no question that the plaintiff, as demonstrated in her course achievements, has the skill and capacity. No evidence was lead as to any market demand for her works, in terms of actual sales arising from her various exhibitions.

67. She acknowledges that, pending a demand for her works that would enable her to paint full time, a career as a secondary or tertiary art teacher would be her goal. I accept the evidence that appointment at the tertiary level is on merit where both artistic capacity and academic achievement at the graduate degree level are important, and that at the secondary level, post graduate art qualifications as well as a diploma in education are required. There is no question about the plaintiff having the ability to achieve this, and Ms Elliot spoke highly of the plaintiff's abilities when she was teaching part time at her old college in 1999.

68. I accept the evidence that being an art teacher also requires a degree of physical effort in moving equipment and hanging works, and that the plaintiff's orthopaedic injuries will restrict her ability to do heavy work.

69. In relation to general damages, I assess the plaintiff on the basis of her extensive injuries, the multiple operations which she has had to undergo, and the further procedures that will be required in relation to her teeth, and final resolution of her scarring at the hair line. I am satisfied on all of the evidence that she will have long term problems in relation to movement and strength in her left elbow and right wrist, and I also accept on the evidence that there is a real probability of her undergoing accelerated arthritic degeneration at the sites of both injuries. In assessing general damages I must take into account the impact that this type of injury has had and will have on the future of the plaintiff, who is a gifted young artist whose preferred medium clearly involved fine motor skills of the highest order. Restriction of elbow and wrist movements to an artist must sound in damages in a manner which reflects the extent of the impact on her life- just as a broken finger will sound in damages to a greater degree in a concert pianist than a labourer, or a lawyer. Present restrictions, and the potential deterioration of her ability to paint, must be taken into account.

70. I also take into account that the plaintiff has an ongoing degree of scarring. While her facial scars have healed relatively well, I accept that she is no longer able to play the flute, which had been her first artistic passion. There is still a visible hair line scar, but this may well be able to be corrected. The scarring issue in this case is not so much a question of facial cosmetic effect, but of the embarrassment the plaintiff has in relation to her elbow and her wrist. Her wrist scar is particularly embarrassing, as the surgical procedures have left a permanent scar at about the point where a scar would be left if a person had done harm to themselves by way of an attempt to slit their wrists. The plaintiff gave evidence, which I accept, that this is often taken the wrong way, and this causes her distress and embarrassment.

71. Counsel for the plaintiff set out in some detail a schedule of damages, which has been most helpful. I am generally in agreement with his submissions and I would award general damages in this case in the sum of $150,000, with $70,000 for the past, generating interest of $8,400, for a total award of $158,400.

72. Out of pocket expenses were agreed in the sum of $29,883,and I would award this sum.

73. I am satisfied that the evidence establishes a significant claim in respect of future medical expenses. There is likely to be considerable future dental work in respect of crown work and eventual implants, and I would award $50,000 in respect of this. There will be future orthopaedic work, particularly in the event of the arthritic change developing, and I accept Dr Bracken's estimate of $10,000 in respect of this. There will be further scar revision on the scalp, and the need to remove remaining wire in the jaw, and these amount to a future cost of $5000. She will need some ongoing physiotherapy for the balance of her life in order to maximise her mobility to the elbow and wrist, and I accept the estimate of $7,000 for this. Ongoing medication and medical supervision for the balance of the plaintiff's life will also generate about $20,000. I would award $92,000 in respect of future medical expenses.

74. There was a claim for damages pursuant to the principle of Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 in respect of gratuitous care and support provided to the plaintiff since the accident, and into the future. As I indicated earlier in these reasons, the plaintiff's family provided extensive care and assistance in the immediate aftermath of her accident, and the associated surgical procedures. This has been claimed at the rate, which I consider to be appropriate, of $15 an hour for three months at eight hours a day, and I would award this sum of $10,800. The claim for two weeks at eight hours a day after each of eight operations also seems to me to be appropriate on the evidence, and I would award this sum of $13,440. I accept that there has also been a degree of assistance from friends, particularly during the period that the plaintiff was living in share houses in Canberra as a student. Some of this claimed care, however, seems to me to merely reflect common share arrangements- the plaintiff would get a lift in to university with a friend, but the friend was driving in to her classes in any event, and this does not, it seems to me, translate into a claim. Taking all of the evidence into account I award a total of $30,000 for past gratuitous care, inclusive of interest, and noting that it has been based on a contemporary rate of charge.

75. The plaintiff is now living independently, but will, I am satisfied, require a degree of assistance for the future, particularly for heavier tasks. The evidence satisfies me that this need will grow in time rather than ease. This includes a range of tasks particular to her role as an artist or art teacher- stretching and hanging large canvass works is, I am satisfied, a role that she would have been able to do alone, but will now require assistance to undertake. I would award the sum of $40,000 in respect of future gratuitous care over her lifetime.

76. The plaintiff's claim for economic loss is complex. I am satisfied that the accident has had the effect of delaying the completion of her undergraduate studies by one full-year, finishing her studies at the end of 1998. In 1999 she undertook some part-time work and then went on a three month trip to Europe with some friends, and in 2000 she returned to study, and is now completing her Masters degree. She may well turn to teaching, and I am satisfied that she would be able to complete her required diploma in education, if she seeks to teach at the secondary level.

77. Her past wage loss is based on the loss of part-time holiday earnings during university breaks up to the end of her undergraduate course, in the sum of about $10,000, but the past taxation records do not show that the earnings for the financial year 94/5 were repeated in the year before the accident. I accept that the plaintiff would be limited in part time work, at least up until the period towards the end of 2000 when she obtained ongoing part time work at the Dendy Theatre. I accept her evidence that she had difficulty with retailing work in 1999, and that, although she enjoyed part time art teaching, this was also a strain. Her past part time employment record, however, together with the acknowledged receipt of trust income, does not satisfy me that but for the accident she would have been undertaking part time work throughout her period of study.

78. The past loss claim from the point where her undergraduate studies should have ended is particularised on the basis of the difference between her actual part time earnings and the average full time earnings for female employees in cultural and recreational services as produced by the Australian Bureau of Statistics, in the sum of $80,000. This would only be made out if the evidence established that the plaintiff would have, but for the accident, sought and obtained such work. I am not satisfied that this is so. There is evidence of her seeking such work, but no evidence that it was her injuries that precluded her from obtaining the curatorial jobs that she applied for. The evidence is that such jobs are very competitive. The fact is that the plaintiff has chosen to go on to further study, and the evidence is that this is appropriate for a person who wishes to teach fine art at tertiary or secondary level.

79. Notwithstanding this, the plaintiff clearly has been delayed by a year in her career, and has an ongoing restriction in relation to the type of part-time employment that she can undertake during her studies, and this must sound appropriately in damages for past economic loss. Moreover, when she does enter the full time workforce, probably as an art teacher, it will be one year later than it would otherwise have been. It seems to me that this is an appropriate case for a buffer award for past loss, and I would award past loss in the sum of $50,000 inclusive of interest.

80. The plaintiff's future economic loss claim is particularised as a buffer claim on the basis of an ongoing loss of $250 a week, for the sum of $301,975. The evidence satisfies me that, once she completes her studies, she is likely, given her acknowledged skills, to find work as an art teacher, and her counsel conceded as much. Mr Kennedy submitted that, although she will get a start in this field, I must take into account the extent to which her restrictions will impact on her ability to maintain full time employment, and how she would fare in promotion. I accept that the work of an art teacher involves a degree of heavy work. While the evidence of Ms Edwards, who is the head of a department, is that her workload only involves limited heavy work, Mr Kennedy fairly made the point that the plaintiff's problem is not coping with the physical work of a senior teacher, whose workload is significantly administrative, but it is in coping with face to face teaching well enough to achieve promotions over the years. I accept this argument.

81. There is also the factor of the impact of her injuries on her ability to go beyond a career as an art teacher or administrator, and to secure an income from sale of her work. That she is talented and skilled is not in dispute, and I am satisfied that her injuries have an ongoing impact on her range of movement and strength in her arms, and I am further satisfied that it is likely that this will get worse rather than better. To this extent, it will impact on her ability to create works into the future. The extent to which this will sound in economic loss is difficult to predict, and must be regarded as a loss of a chance. I have noted that, while there is evidence of her skill, and her former teacher spoke very highly of her talent, there is no evidence that her works, while technically excellent, have been able to command a market, and Ms Edwards acknowledged that this was a matter of individual taste. However, to the extent that a market may emerge, her ability to meet it will be limited, and this must be taken into account.

82. Taking into account all of these factors, and the fact that the impact will be on the plaintiff's entire career, from the point of entry into what I accept is a very competitive field for both secondary and tertiary teachers of fine art, I would award damages for future economic loss in the sum of $200,000.

83. This amounts to a total award of $600,283 which I would have made had liability been established.

Contributory Negligence

84. I have found contributory negligence to have been made out, and it is necessary for me to make an attribution after determining damages. It seems to me that to attempt to hoist oneself up backwards onto a narrow ledge known to be on the first floor level and with a sheer drop below, after drinking to the point where Ms O'Meara acknowledged that she should not drive a car, amounts to a significant degree of contributory negligence. In Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 the High Court (Dixon CJ, Webb, Fullager and Kitto JJ) said

"What has to be done is to arrive at a just and equitable apportionment as between the plaintiff and the defendant of the responsibility for the damage. It seems clear that this must of necessity involve a comparison of culpability. By culpability we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man."

It seems to me that on this test a just and equitable attribution would be to attribute 60% responsibility to the plaintiff, on the basis that the action of trying to climb backwards to sit on a first floor balcony was a very significant departure from the standard of care expected of a reasonable person.

85. I would therefore have awarded the sum of $240,113 had I been satisfied that primary liability has been made out.

86. There will be judgment for the second defendant, with costs.

 

I certify that the preceding eighty six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 15 November 2002

Counsel for the Plaintiff: Mr D T Kennedy

Solicitor for the Plaintiff: Elrington Boardman Allport

Counsel for the Second Defendant: Mr R Mildren

Solicitor for the Second Defendant: Pappas J, Attorney

Date of hearing: 19, 20, 21 August & 9 September 2002

Date of judgment: 15 November 2002