Vance v Daramalan College [2002] ACTSC 117 (22 November 2002)

Last Updated: 12 December 2002

BRADLEY DAVID VANCE v DARAMALAN COLLEGE [2002] ACTSC 117 (22 November 2002)

CATCHWORDS

NEGLIGENCE - occupier liability - entrant to premises aware of construction work - walks over rubble in dark - whether breach of duty of care

CONTRIBUTORY NEGLIGENCE - plaintiff walks over debris in dark

DAMAGES - personal injuries - back injuries - no issue of principle

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

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

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

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

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

Postnet Pty Ltd v Wood & Brown [2002] ACTCA 5

Roads and Traffic Authority v McGuinness [2002] NSWCA 210

Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24

No. SC 433 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 22 November 2002

IN THE SUPREME COURT OF THE )

) No. SC 433 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BRADLEY DAVID VANCE

Plaintiff

AND: DARAMALAN COLLEGE

Defendant

AND: BEASEC ENTERPRISES PTY LIMITED (ACN 008 428 331)

Third Party

ORDER

Coram: Master T. Connolly

Date: 22 November 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $180,866

2. Costs reserved

1. This is a claim for damages for personal injuries arising from a fall which the plaintiff sustained while on the defendant's premises. The plaintiff was a relief driver for a milk vendor, and at around 5:30am on 17 July 1997 he was attempting to deliver milk products to the tuckshop at Daramalan College at Dickson in the Australian Capital Territory. He had made deliveries on three prior mornings this week, and he was aware that building works were being undertaken at the college. On the previous mornings he had been able to back his truck reasonably close to the tuckshop, so that the lighting from the back of the van would provide some illumination, but on this morning he says that the building works had advanced further and he was unable to back his truck in. He commenced to carry some crates of milk towards the tuckshop, walking over what he acknowledges he knew were earthworks, when he slipped and fell, sustaining injuries to his lower back. He brings his claim against Daramalan College as the occupiers of the premises to which he lawfully had access. The building contract, which was in evidence, makes it clear that the College did have ongoing control and possession of the site, so that it is the correct defendant.

2. The plaintiff was born in 1961 and educated to completion of Year 10 in Canberra. He then left school and commenced work as a greenkeeper. He continued in this role for many years, and eventually had his own business in gardening and landscaping. In March of 1996 he commenced relief work as a milk deliverer, and he says that this grew over time so that by 1997 he was working on a more or less full time basis, relieving about 13 different drivers over different occasions when they were on holidays or otherwise unavailable to drive. He says that the routine was that he would normally go out with the driver to familiarise himself with the run, and then would perform the work himself. He had done the run which includes Daramalan College in June 1996. He says that he would normally drop the milk off to the tuckshop as his first stop, at about 5.30 am, and then move on the Woolworths at Dickson, which was a large delivery, and then move on to other smaller shops in the northern districts. He says that there was considerable time pressure, as the shops liked to have the fresh milk deliveries by opening time.

3. He says that when he did the first run to Daramalan he was shown that he should back his truck up a driveway that leads off Cowper Street in Dickson between what was identified on a site plan tendered in his case as McCowage Hall and the Sharpe Building. This lead to the tuckshop, which was at the rear of the building identified as the Reid Wing. He says that he could bring the truck to within two or three metres of the door to the tuckshop, and that when the back door of the van was opened the interior lights provided sufficient illumination for him to open the door with the key that he had supplied, and deliver the milk supplies. It is common ground that the lighting system at the College turned off the outside lights automatically some time in the early hours of the morning before he arrived at about 5.30am. In Canberra in June and July at this time it would, of course, be quite dark. He said that these lights did not shine near the tuckshop even if they were on, and he always worked from the light in the back of the truck. The lights would, however, have provided some illumination in the general area.

4. He commenced doing these relief runs to Daramalan College on Monday 14 July 1997. He says that it was apparent that building works were being undertaken at the rear of the Sharpe Building. He said there was building material and a big rubbish hopper in the area and he was not able to get his truck as close to the tuckshop door. He says that on this first morning he backed his truck as far as he could, and then got out and walked with the crates to the tuckshop. He said he had to step over a little barrier, about two feet high to get to the canteen. On the Tuesday morning he said there was even more material around, and he was not able to get his truck as close, but he was able to effect his delivery. On the Wednesday morning he said there was further change to the site, and he could only back his truck to a point about level with the first part of the Sharpe Building.

5. On the morning of Thursday 17 July he says that he arrived at about 5.25-5.30 am and left his truck in the street because there was even more material around and he could not back the truck up. He was cross-examined as to why he did not drive his truck in as far as possible and leave the headlights on to illuminate his route. He conceded that he had not thought about doing this, but agreed that it would have been possible and that this would have provided him with light. He said that he had been told to reverse where possible. It was put to him that this would have been a way of providing greater light, but he said that it would have been more difficult to then reverse the truck into Cowper Street which he said was a busy street. It seems to me that, while reversing the truck into a street would be more difficult than driving into the street, this activity was occurring at around 5.30am, when Cowper Street would not be so busy as to prevent him from reversing out.

6. He agreed in cross-examination that, after making the deliveries for three days, he was well aware that the ground was covered with rubble. He said that he could, despite the absence of lighting, see rubble on the ground this morning. He said that he thought that he might have rung Capital Chilled Foods, who were the principal milk vendors, to tell them that there were building works going on and could something be done about lighting. He agreed that it was a dangerous activity to walk over building rubble at night in the absence of safe lighting.

7. He said that he had to deliver two crates of milk, weighing a total of about 25-35 kilos, and he carried both of these at one time. He said that the lighting was poor, and it was difficult to see where he was going. He says that he could not pick a way through the rubble, and he tried to follow his normal route, walking over a pile of rubble. He says that he stumbled forward, and he tried to save the two crates of milk by lunging forward, and he felt a twinge in his low back as he fell to his knees. He still had the crates in his hands, and he made the delivery, although he noticed pain in his low back. He then did the drop at Woolworths, but he said that he had to accept help from Woolworths staff. He says he then radioed the depot at Capital Chilled Foods to tell them that he had had an accident, and arranged to meet another driver to take over his run at the McKeller shops. He was able to get to his general practitioner about 10 am.

8. He was cross examined as to why, knowing that the path to the tuckshop was strewn with rubble and building materials, he did not on this morning when he realised that he could not reverse the truck in to provide some light, go instead to Woolworths and make his big delivery, and then return to this site some time around dawn when there would be some natural lighting. He said that this would involve doubling back and would delay in him in his run for the rest of the morning. While doubling back is obviously something to be avoided in a milk run, the geography of Dickson is that Woolworths is only a very short distance from the School.

Liability

9. The case against the defendant is pleaded on the basis that the defendant was negligent in the following manner:

a. Failing to take any or any adequate precautions for the safety of the plaintiff

b. Exposing the plaintiff to a risk of injury which could have been avoided by reasonable care on the defendants part

c. Failing to provide any or any adequate warning of the existence of the danger on the premises of which the defendant knew or ought to have known

d. Failing to provide sufficient lighting on the premises

e. Failing to erect any or any adequate fences and/or barriers

f. Failing to direct the plaintiff to an alternative entrance to the premises which would have avoided the danger

g. Allowing building works to be performed in such a manner that building rubble was left unprotected; and

h. Failing to instruct builders not to leave rubble where it was reasonable foreseeable that a delivery person might fall on it.

10. The defendant in its pleadings denies liability, and in the alternative pleads contributory negligence on the basis that the plaintiff failed to keep a proper lookout and failed to take adequate care and precautions for his own safety. In address, counsel for the defendant acknowledged primary liability by reason of failing to properly light the area, but maintained that contributory negligence should be found.

11. The plaintiff's argument that the conducting of building works and the absence of lighting makes it reasonably foreseeable that a person might slip or fall on the building site is, it seems to me, easily made out and in effect conceded. That injury is foreseeable, however, does not of itself establish the breach of a duty of care. The High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 has emphasised that in formulating a duty of care, a defendant is required to take precautions, not against any foreseeable injury, but against injury to persons exercising reasonable care for their own safety. Gaudron, McHugh and Gummow JJ said [para 163]

"The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general such persons are more able to see and avoid imperfections in a road surface. It is in the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards such as uneven paving stones, tree roots or holes."

12. In Roads and Traffic Authority v McGuinness [2002] NSWCA 210 Handley JA restated the law in relation to the duty imposed on an occupier of land towards a pedestrian as follows:

"The duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate obvious hazards which could possibly be an occasion of harm. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence."(at [33])

13. The need to take into account the plaintiffs' conduct has been emphasised by the ACT Court of Appeal. In Postnet Pty Ltd v Wood & Brown [2002] ACTCA 5 the Court (Crispin P, Higgins and Gray JJ) said:

"In determining whether there has been a breach of a duty of care, a court must address three issues. First, it must determine whether a reasonable person in the position of the defendant would have foreseen that his or her conduct involved a risk of injury to a class of persons including the plaintiff. In determining this issue, it must take into account the fact that a risk `which is not far fetched or fanciful is real and therefore foreseeable' per Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. Second, if it finds that there was such a foreseeable risk, it must proceed to determine what such a hypothetical reasonable person would have done in response to it. The latter question requires an examination of the magnitude of the risk and the degree of probability of it occurring, together with the expense, difficulty and inconvenience of taking preventative action. In weighing these factors the court must allow for the fact that an occupier is entitled to take into account the likelihood that, with due allowance for human nature, and entrant will use reasonable care for his or her own safety. See Phillis v Daley (1988) 15 NSWLR 65 at 74. Third, it must determine whether the conduct of the defendant fell short of such a response."(at [7]).

14. It seems to me that the plaintiff in this case has gone very close to a failure to exercise the reasonable care for his own safety that the occupier of the premises was entitled to expect and so the second limb of the test set out in Postnet v Wood would not be made out. While it was foreseeable that the building works would create an additional danger to persons seeking to gain access to the tuckshop area, and while additional lighting, or simply ensuring that the lighting remained on until dawn, would have been an appropriate response to this danger, the defendant, it seems to me, was entitled to expect that the plaintiff, who knew well that the area had rubble strewn about, and that the lighting was poor, would not attempt to carry two milk crates over the building site in total darkness. His evidence is that he walked over a low barrier to get to the tuckshop. Counsel for the defendant acknowledged, however, that it had control of the lighting, and knew deliveries were made in the early hours. Liability was therefore appropriately conceded, and the plaintiffs lack of care for his own safety goes to contributory negligence.

15. The case is brought against the College, and so the test to be applied is the test relating to an occupiers duty to potential lawful entrants as laid out above. Counsel for the plaintiff, in addressing the question of contributory negligence, took me to McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, where a garbage collector brought a claim for failure to provide a safe system of work after being hit by a motorist. It was argued the garbage collectors practice of running across the road while obscured by the truck amounted to contributory negligence. The Court characterised the employee's conduct as mere inadvertence or inattention rather than negligence. It seems to me that this refects the longstanding proposition that where an employee sustains an injury the tribunal of fact is entitled to have regard to

"inattention bred of familiarity and repetition, the urgency of the task, the mans preoccupation with the matter in hand, and other prevailing conditions"(per Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37).

16. These are indeed appropriate considerations in the context of a claim against the employer, whose duty to provide a safe system of work is in issue. The present action, however, is not brought against the employer, but the College as occupier of the premises, and it seems to me that the degree of latitude that the courts have given in respect of an employment claim does not necessarily flow on to an occupiers claim. The occupier of land, it seems to me, cannot be expected to know and take into account that an entrant may be an employee who is under pressure or otherwise inadvertent. The occupier is, on High Court authority, entitled to assume that any entrant will be exercising reasonable care.

17. In any event, it seems to me that the want of due care for his own safety here is not comparable to the "inattention bred of familiarity and repetition" referred to by Windeyer J. The plaintiff here was aware over the prior three mornings that the area near the tuckshop was a building site, and that the light was poor, and yet he elected to walk, in the dark, carrying two crates, over piles of rubble, rather than drive his truck in with the headlights on, or do another delivery and return when the light was better or to use a torch. This goes well beyond mere inadvertence.

18. I would accordingly find that there has been a breach of duty of care, and direct a judgment for the plaintiff. I am however satisfied that the plaintiff's conduct amounted to contributory negligence. In accordance with apportionment legislation it is appropriate to proceed to an assessment of damages, and then a consideration of the quantum of contributory negligence.

Damages

19. Mr Vance attended at his family general practitioner on the morning of the accident, where he was seen by a locum. Dr Doumani, his general practitioner, reported in February 1998 that he had after the accident consistently complained of low back pain radiating to his legs as far as his calves. He was certified unfit for work, and has remained off work, on Workers Compensation, to date. He has continued to complain of low back pain. A CT scan of July 1997 has shown

"At L5/6 the disc space is slightly narrowed and there is a mild, diffuse posterior disc bulge. There is no focal disc herniation and posterior joints appear normal."

20. An MRI scan of January 1998 has shown that

"At L5/6 the disc is moderately reduced in height and shows marked loss of signal intensity on T2 weighting. There is an associated minor diffuse posterior disc bulge. However, the lateral recesses appear clear and the L5 roots appear to have adequate space to pass."

21. He was seen by Dr Hudson, orthopaedic surgeon, in May 1998. He diagnosed a disc protrusion at L5/6 and in relation to attribution said

"I believe the condition of the disc protrusion is consistent with the injury which Mr Vance describes. It is quite likely that the disc at this level was abnormal prior to the accident and it is more common than not that a disc protrusion occurs in a segment affected by some wear and tear."

Dr Hudson has advised that as the damage is at one level, a surgical procedure would be an appropriate option, but Mr Vance has said that he would prefer to avoid surgery.

22. Dr Chandran saw him in February 1999,and formed the view that the facet joints may have been involved, but a facet joint injection did not provide significant relief. Mr Vance said that after his first injections with some relief, he had another injection where the needle bent, causing great pain, and he has not had further facet joint blocks. Dr Chandran said

"there is evidence of dehydration and a slight bulge of the disc above the last one in the spine but his pain seems to be more confined to the back and possibly arising from a facet joint in addition to some pain from disc degeneration. It is likely that an injury occurred to this disc as well as to the facet joint."

Dr Chandran was of the view that he might end up with a lumbar fusion.

23. Dr Corry, a rehabilitation physician, examined the plaintiff in November 1999. He noted the ongoing complaints of low back pain and the MRI and CT findings. He said these showed

"age related changes in the L5/L6 lumbar disc with loss of disc height and loss of signal intensity due to dydration and some mild posterior disc bulging. These changes are non specific and are common in the normal adult population (30% of adults over the age of 30 will show at least one such disc abnormality) and are not on their own an explanation for the presence of pain."

He formed the diagnosis of non specific mechanical low back pain.

24. He gave evidence that his ongoing back pain has had psychological consequences. The evidence is that Mr Vance has been a hard worker all of his life. He was a greenkeeper for some 14 years, and left after a falling out at that place of employment. He then set himself up in his own small business, and also was able to find the relief milk delivery work, which grew to nearly a full time job, and involved quite heavy work. He has been unable to return to work, and he has said that he has become frustrated at attempts by the medical profession to assist him. Dr Lucus, a consultant psychiatrist, saw in 2000 and has reported that he had an adjustment disorder with depression and anxiety, of moderate degree, that was being treated appropriately with an antidepressant. He has subsequently been undertaking cognitive behavioural counselling with Ms Langford, a psychologist, which in her report of October 2002 she said was of assistance.

25. Reports were tendered by the defendant from Dr Schaeffer, consultant neurosurgeon, and Professor Oakshott. Dr Schaeffer in his report of December 2000 expressed the view that the degenerative disc seen at L5/6

"has clearly been in existence for several years. It was in existence on the first MRI scan performed six months after the subject injury and I am sure that it preceded the injury by several years. The incident on the 17 July 1997 is consistent with producing a symptomatic aggravation of the pre existing disc condition assuming the incident occurred in the manner that he suggests."

26. Professor Oakshott in his report of July 2000 refers to both the CT and MRI scan as showing "no significant abnormality", and said

"I consider that he does not have any significant degenerative changes in his lower back apart from what would normally be expected in a person of his age."

He said there was no disability to his back. Professor Oakshott in this regard has taken a view that is markedly different from all of the other doctors.

27. I am satisfied that the plaintiff sustained soft tissue injuries of some significance to his lower back as a result of this fall, and also, taking account of all of the evidence, that he aggravated a previously degenerate disc at L5/6. I accept that he has had ongoing low back pain of moderate severity such that he is unable to engage in heavy labouring activities, and that this has lead to a psychological sequelae as described. I note that no contrary psychological reports were served.

28. I accept that the medical condition caused by the accident would have precluded the plaintiff from continuing with heavy physical work. His evidence was that he had not been a great scholar at school, and his only jobs have been labouring type jobs, although he did work as a petrol station attendant for a time in his youth. He agreed that he had made little attempt at retraining until in February and March 2000 he undertook a five-week course at the CIT in computers, and in July 2000 commenced a course in computer servicing. He failed in the first exams, but sought to re enter in 2001, only to learn that the course was not being offered that year. He has enrolled in 2002 in a correspondence course from Sydney TAFE as a computer technician, and he said that he was doing well. He enjoys the work, and has done some computer repair and maintenance work for friends, and has a small workshop at his home. He acknowledged that his wife, who had left the workforce, has gone back to work since he has been out of work, and with his compensation payments the family is not significantly disadvantaged, and Mr Parker submitted that this should be seen as a factor in relation to his lack of efforts to obtain suitable employment that avoids heavy lifting.

29. In relation to general damages, I assess the plaintiff on the basis that he has sustained a low back injury of some significance by way of a significant aggravation of a previously degenerative, but largely asymptomatic, lower back. The plaintiff was fully frank about some minor prior episodes of back pain, but the evidence clearly establishes that these resolved and he was able to return to heavy sustained work. He has not been able to return to heavy work since this fall. I accept that this has had implications to his social and recreational activities, and that he has suffered a degree of adjustment disorder and depression. He has undertaken a pain management course and some counselling, and this aspect is improving on the latest report, but his psychologist says that he will need further care. Taking all of this into account, I assess general damages in the sum of $47,000, with $35,000 for past loss, generating interest of $3800 for a total award of $50,800.

30. Out-of-pocket expenses were agreed in the sum of $26,300 for the past, which I would award. For the future I accept that he will require a degree of pain relief and some counselling. There is the possibility of a future fusion procedure at the L5/6 level, but this is only a possibility, and as I have found that this condition was aggravated and rendered symptomatic, but not caused by the accident, I must also discount this. I would assess future out of pocket expenses in the sum of $7,500.

31. Loss of earning capacity for the past is claimed in the sum of $152,884. Counsel for the defendant accepted that this was an appropriate award on the basis that he was precluded from heavy work, and I would award this sum. He has been in receipt of workers compensation payments in the sum of $127,175, so interest is only payable on the extent that he was out of pocket. I accept Mr Crowe's calculations that this amounted to a net compensation payment of $105,075, so he is entitled to interest on the difference from the date of the injury, being $12,549 for a total award of $165,433.

32. He has paid tax on the compensation payments, so a Fox v Wood award in the sum of $22,100 is appropriate. I accept also a loss of superannuation in respect of the past wage loss in the sum of $10,600 inclusive of interest.

33. The plaintiff's future economic loss claim was based on four years of ongoing loss at $600 net per week to cover retraining, and then a buffer for the difference between his potential future earnings and his prior earnings. Mr Parker for the defendant submitted that this should be discounted for the fact that he has made no real efforts until recently to undergo retraining, but he accepted that there should be a buffer to reflect the period for retraining for appropriate employment. Mr Vance is interested in computer technician work, and is motivated and apparently doing well in the course. I would award a buffer for future economic loss in the sum of $75,000 inclusive of future superannuation.

34. A Griffiths v Kerkemeyer claim was particularised, but I am not satisfied that the rearrangements of domestic activities apart from a period immediately following the accident goes beyond the normal give and take of domestic relationships. He gave evidence that he still gardens and mows the law, and has helped other family members with landscaping projects, although avoiding heavy lifting.

35. I should add that in the statement of particulars in this case there was included an economic loss report which included within it a so called "Report on activities of daily living' prepared by a Mr Girdler, with qualifications as a rehabilitation counsellor. Such a document, it seems to me, ought be tendered in the ordinary way as an expert report, and not included in the statement of particulars, which should confine itself to pleading the extent of the plaintiffs case, and not itself contain evidence.

36. A court is of course not obliged to accept an expert's views. As Callinan J said in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512:

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])

37. The report, which in its form seems to be based on the New South Wales Workers Compensation Act 1987 scheme, merely restates a claimed need for care from the plaintiff. It states that his wife mows the lawns and gardens for 1 hour and 45 minutes a week. This is not consistent with the evidence given in court. It also has a brother pruning trees for 15 hours a year. No evidence was given of this and the plaintiff's acknowledgement that he assists other family members in gardening and building projects. There is also an annual claim of 20 hours for washing a dog, but no medical evidence as to why the task would be beyond the plaintiff.

38. On all of the medical evidence, and the plaintiff's frank acknowledgement in cross-examination of his range of activities, I am not satisfied that he has established a claim for damages for care and assistance going beyond the give and take of family relationships, apart from during a period immediately following the accident. I would award the sum of $4000 in respect of past gratuitous care, inclusive of interest, and make no award for the future.

39. This amounts to an award of $361, 733 clear of contributory negligence.

Contributory Negligence

40. This award will need to be reduced to reflect the degree of contributory negligence. The appropriate starting point in determining contributory negligence is the well known test laid down by the High Court in Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 where Dixon CJ, Webb, Fullager and Kitto JJ said at 16:

"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"

41. I am satisfied that the defendant failed to vary the timing on its lighting system so as to ensure a building site, strewn with rubble, would be adequately illuminated when it knew or ought to have known, that deliveries had to be made in the vicinity of that site. I am satisfied that the plaintiff attempted to negotiate, in the dark, the area that he knew was strewn with debris while carrying two milk cartons, in circumstances where he otherwise could have illuminated the scene with his truck headlights or returned after doing another delivery or use a torch.

42. It seems to me, applying the above test, that the parties are equally culpable, so I would assess contributory negligence in the amount of 50%. This results in an award of $180,866 which I consider to be appropriate in all the circumstances of the case.

43. There will be judgment for the plaintiff in the sum of $180,866.

44. I will hear the parties as to costs.

I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 22 November 2002

Counsel for the Plaintiff: Mr R Crowe

Solicitor for the Plaintiff: Pamela Coward & Associates

Counsel for the Defendant: Mr F G Parker

Solicitor for the Defendant: Dibbs Barker Gosling

Date of hearing: 22 & 23 October 2002

Date of judgment: 22 November 2002