Wood v Postnet [2002] ACTSC 48 (31 May 2002)

Last Updated: 20 June 2002

David Benjamin Wood v Postnet Pty Ltd [2002] ACTSC 48 (31 May 2002)

CATCHWORDS

NEGLIGENCE - duty of care - foreseeability - nightclub patron injured when falling from awning of nightclub - access to awning gained through window - occupiers duty of care

Law Reform (Miscellaneous Provisions) Act 1955 s 15

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

Downunder Rock Café Pty v Roberts (Victorian Court of Appeal) (1998) Aust Torts Reports ¶81-481

Fry v McGufficke [1998] FCA 1499

Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374

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

Phillis v Daly (1988) 15 NSWLR 65

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

No. SC 550 of 1997

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 31 May 2002

IN THE SUPREME COURT OF THE )

) No. SC 550 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID BENJAMIN WOOD

Plaintiff

AND: POSTNET PTY LTD

Defendant

AND: CAMERON DOUGLAS BROWN

Third Party

ORDER

Coram: Master T. Connolly

Date: 31 May 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $277,106.40

2. Costs reserved

1. This is a claim for damages for personal injuries arising from a fall sustained by the plaintiff on 26 June 1996 from an awning and associated structures outside licensed premises occupied by the defendant on the corner of Bunda Street and Garema Place in Canberra City, trading under the name of "Late Night Heaven". The licensed premises were situated on the first floor of the building, and windows opened at near full height from the licensed premises to the awning outside. The plaintiff and a friend, both then aged in their early twenties, left the nightclub through the window and then walked along the awning before climbing up on to a sunshade structure on a neighbouring building. The plaintiff then climbed to the top parapet of the building and sat on the parapet for a while with his legs dangling. He sought to return by pushing himself off the parapet and in effect jumping to the sunshade structure. This gave way, and he fell to the awning level. Unfortunately directly below the point at which he jumped there was a skylight on the awning, and he crashed though this and struck the ground. He sustained very serious injuries, and was indeed fortunate to survive.

2. At first glance this may seem to be the type of circumstances where a plaintiff should be seen to be entirely responsible for their own misfortune, and indeed the defendant has pleaded that it owed the plaintiff no duty of care, and that the plaintiff voluntarily assumed all risk by climbing through the window onto the awning. The plaintiff's case is strengthened, however, by the acknowledgment by the defendant that it knew that patrons regularly climbed through the windows to go out onto the awnings. The plaintiffs says that the defendant had a duty to ensure that patrons of the licensed premises were not able to get into the obviously dangerous situation that standing on a first floor level awning presented. There is uncontradicted evidence that after this accident bars were fitted to the windows, about six in all, that provided access to the awning, at a cost of about $100 per window. The plaintiff says that this reasonable precaution should have been taken before the accident in the knowledge that patrons regularly left through the windows and apparently sometimes obtained access to the club without paying an admission charge by climbing an adjacent tree and then scrambling across onto the awning and in through the windows of the club. The plaintiff acknowledges that contributory negligence will be established in this case.

3. There was contradictory evidence as to whether or not on this night the plaintiff and his companion, Mr Stamiros, paid an entrance fee to gain admission to the nightclub. The plaintiff sustained such serious head injuries that he has a very limited memory of the evening. Mr Stamiros said he thought he had paid a modest admission charge, as they normally did when they attended the nightclub. Ms Campbell a friend of the plaintiff's, said that there normally was an admission charge when she attended, but she acknowledged that she normally attended when her boyfriend was performing as a DJ on theme nights. The manager of the nightclub, Mr Zeravac said that the normal practice was for theme nights and busy nights such as Friday and Saturday nights to have a cover charge, whereas admission was free on quieter nights early in the week. His recollection was that this night was not a theme night, and he says that he recalls noting that the takings at the bar were good for a non theme night without a cover charge.

4. The law relating to the liability of an occupier since Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 has applied the ordinary principles of negligence regardless of any distinction as to whether the injured person was an invitee, licensee or trespasser. It follows that an occupier of premises must take reasonable care for the safety of persons entering those premises bearing in mind that what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises" (Australian Safeway Stores op cit at 488). The factors material to the question of whether there was a breach of such a duty are those set out in the well known test from Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

5. There have been holdings by State Courts of Appeal that a higher duty of care may be owed where a contractual entry fee is demanded (Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374 per Kirby P at 378, Downunder Rock Café Pty v Roberts (Victorian Court of Appeal) (1998) Aust Torts Reports ¶81-481. I am not satisfied on all of the evidence in this case that an entry fee was paid on the night in question, and accordingly the duty of care is to be determined on the ordinary basis.

6. The evidence in this case is that the defendant operated licensed premises at which music was played and alcohol served. Patrons would drink and dance, and management had for some considerable time observed that patrons would frequently exit the premises via the windows and gather on the awning outside. This was said to be far more common during the summer months, where patrons would find the outside awning, which operated as a balcony, cooling. The evidence of Mr Zeravac is that staff were told to discourage patrons from doing this, but neither Mr Stamiros nor Ms Campbell ever recalled being told not to go outside, and there were no signs. The windows, which were shown in photographs tendered as exhibit A photograph 9, ran from the floor level, and formed an easy passage to the awning. After the accident bars were fitted so that the windows could remain open to encourage fresh airflow but patrons would not be able to use the windows to gain access to the awning. The bars, which are shown in photos 1 and 2 in exhibit A, cost about $100 per window.

7. Regardless of the cover charge, the defendant encouraged persons to attend the licensed premises to drink and dance, and, I am satisfied, knew that patrons frequently went out through the windows onto the awning, and took no action to prevent this. The test for breach of duty, as laid down by Mason J in Wyong Shire Council v Shirt at 47-8 is whether a reasonable defendant would have foreseen that their conduct involved a degree of risk of injury to the plaintiff. That 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. As Mason J there said, "A risk which is not far fetched or fanciful is real and therefore foreseeable."

8. It is certainly also the law that a plaintiff is expected to take care for his own safety. As Mahoney JA said in Phillis v Daly (1988) 15 NSWLR 65 at 74

"In determining whether he must deal with a particular danger and what he must do, the occupier is still entitled to take into account that, with due allowance for human nature, a person he permits to be upon his premises will use reasonable care for his own safety."

An occupier would not generally be liable when persons lawfully on their premises elect to climb out of a window. It may be argued with success that a plaintiff would be expected to pay heed to the obvious danger and not climb out through a window. But the evidence in this case satisfies me that the defendant has long tolerated a practice of permitting patrons to leave the club premises by way of the windows and gather on the outside awning. The defendant cannot say that it could expect that patrons would pay heed to an obvious danger and not go out onto the awning, because that is exactly what the defendant knew patrons habitually did.

9. Counsel for the defendant, Mr McIntyre SC very properly conceded that, had the plaintiff simply slipped and fallen from the awning, liability would be established, as the risk of patrons using an awning for a balcony and falling was foreseeable, and the preventative measures, involving a cost of only some hundreds of dollars, should have been taken. He says that while a fall from a balcony was foreseeable, it was not foreseeable that patrons would walk along the balcony and then climb up on to adjoining structures.

10. Mr Wood was unable to recall any of the circumstances of the evening. Mr Stamiros said that he and Mr Wood left the nightclub by way of the window in the DJ booth, as they had on previous occasions. They went outside for some fresh air and to talk in quieter surroundings. They then decided to walk along the awning "to see where it went". Some distance from the window from which they gained access, their attention was drawn to an awning like structure about 5 metres above them, made of steel. The point at which they noticed this is shown as point B in photograph 3 in exhibit A, and the mesh structure itself is shown in photograph 5 of exhibit A. Mr Stamiros says that they wondered what this was and where it lead to, so they climbed up the steel supporting structure, shown in photo 5. They then walked along this mesh awning, which I am satisfied was a sunshade. At a point further along, marked as point C in photo 3, Mr Wood decided to climb onto the parapet of the wall, on Mr Stamiros' recollection "to see what was up there". He then sat on the parapet before pushing off in order to land on the mesh. The mesh gave way, and he fell to the awning level, and through the skylight, as shown in photograph 10 in exhibit A, which shows the broken mesh as seen from ground level through the skylight. The point at which he fell is about 41 meters from the window.

11. Mr McIntyre says that it was not foreseeable that the plaintiff would act in this manner. Mr Stretton for the plaintiff says that it was known that young male patrons used the windows to access the awning, and that it is clearly foreseeable that they could fall from the awning. He says that once this genus of injury is foreseeable, it is sufficient to establish liability, and that in any event it is not "far fetched and fanciful" that young male patrons at licensed premises might wander along the awning and see what they could see, even climbing an adjacent structure to the roof.

12. In Downunder Rock Café Pty Ltd v Roberts (1998) Aust Torts Reports ¶81-481 the plaintiff was injured while attending licensed premises where a band was playing when a lighting structure collapsed on him because, in the words of Charles JA, another patron had "leapt out like Tarzan at the lighting grid" and swung along it, causing it to collapse. While the plaintiff in that case was a fully innocent bystander, the duty of care issue is the same as here, in that the question for the Victorian Full Court was whether it was foreseeable that a patron at licensed premises might decide to jump in the air and grab hold of an overhead structure and then climb, or swing, along it. The evidence in that case, as in the present case, was that after the accident the premises were rendered safe by a simple and inexpensive form or repair. The Court found that such a risk was not far-fetched or fanciful but one which, although unlikely, was nonetheless real.

13. It seems to me that the fact that the defendants were operating a nightclub is relevant to this question. In Phillis v Daly (1988) 15 NSWLR 65 McHugh JA (although in dissent on the application of the test) made the point in relation to the duty of care owed by a hotelier to patrons in respect of logs lying outside in the carpark of the hotel that

"A reasonable person would expect a higher standard of care from a person in the position of the defendants than from a private householder who had a log outside his premises."

14. On all of the evidence I am satisfied that the defendant owed a duty of care to the plaintiff to ensure that he did not gain access to the unsafe area being the awning and other areas of the adjoining building accessible from the awning, and that there were available cheap and effective methods of preventing such access, which have subsequently been applied. I am satisfied that there was a breach of duty of care, and primary liability is established.

15. The defendants pleaded contributory negligence, and this was not seriously disputed. A patron who gains access to an unsafe area, but then decides to climb onto an adjoining structure, and then on to a parapet wall, and then to get down from the parapet wall, not by climbing with due care in the manner of the ascent, but by pushing off the wall in order to land some metres below on a metal sunshade, is clearly not taking due care for their own safety. I find contributory negligence is established. In accordance with the apportionment legislation I will go on to assess damages before considering attribution.

DAMAGES

16. There was no dispute that the plaintiff sustained substantial injuries as a result of the fall, and the defendant did not serve any medical reports, despite having the plaintiff examined by a range of specialists.

17. The plaintiff was born in 1973 in Coffs Harbour. His father died in 1987, and he moved with his mother to Canberra. He completed his Higher School Certificate at Phillip College in 1991, but he had not secured a sufficient score to enable him to gain entry to his preferred tertiary course, so he took the not uncommon option of completing another year at College to improve his Tertiary Entry Score. In 1993 he enrolled in the course at the Canberra Institute of Technology in Sport and Recreational Leadership, but he found that it was not to his liking, involving too heavy an emphasis on gym activities, and he abandoned tertiary studies.

18. From 1994 to 1996 he undertook a range of jobs in the hospitality industry. He started in the job he described as "dish pig", being the term for the junior level of, in effect, cleaner upper and dishwasher, but progressed to bar work. He was a floor manager for a time at Canberra Casino, but he says that he did not like working in that environment, and he was ill for a time with flu like symptoms. He was terminated from this job. He undertook a course in silver service waiting, and says he found some part time work at restaurants in Civic and Belconnen. Not all of these appear on his last tax return for the year ending June 30 1996, but I accept the explanation that this form was filled in on his behalf by his mother while he was in hospital, and no suggestion was made of any impropriety.

19. At the time of the accident the plaintiff had not settled on a career, and did not have a steady employment record, but the evidence satisfies me that this shows only that he was not yet sure of his direction, having attempted one tertiary course which turned out not to be to his liking, he did what many young people do in holding down a variety of jobs in the hospitality industry. He had a strong interest in music, and took part in some of the DJ activities at clubs, including the Heaven nightclub. His pre accident tax records were in evidence, but I do not see these as establishing his likely long term earning base.

20. On the night in question Mr Wood met with his friend Mr Stamiros at a bar in Civic, where they had one drink, and then went to the Heaven nightclub, where they had another drink. There was no suggestion in the evidence that the plaintiff had been drinking beyond this level.

21. Following the fall Mr Stamiros observed the plaintiff lying unconscious in a pool of blood, and ran back to the nightclub, and an ambulance was called. Dr McLaren of the Canberra Hospital, in a report of 21 April 1997 said

"The ambulance arrived within 5 minutes of the accident and an airway was established immediately. It is likely that such early airway intervention has saved this young man's life".

Clearly the paramedics with the ACT Ambulance Service performed their duty with distinction in this case.

22. The Hospital report states:

"Following admission to the Accident and Emergency Department here he was found to have a severe traumatic brain injury with multiple fractures. There was a fracture of the base of the skull and comminuted fractures of the parietal, temporal and frontal bones. Right subdural and extradural haematomas were seen on CT scan. The cistersn at the base of the brain were effaced, consistent with the swelling of the brain. There were fractures of the facial bones, involving the ethmoid sinus and also a fracture of the right patella. Urgent craniotomy was performed soon after admission and the extradural haematoma and subdural haematoma were evacuated. An intracranial pressure monitor was inserted and the bone flap was left out. He developed marked diabetes insipidus which required replacement hormonal treatment."

23. The plaintiff remained unconscious for some considerable time while this intensive, life saving surgery was being performed. He commenced to follow oral commands in early August. The view of the Hospital is that he emerged from posttraumatic amnesia only on 2 September 1996, the duration being 37 days. He was transferred to the acute Rehabilitation Ward on 2 September. Review by ophthalmologists indicated a marked degree of impairment of vision in his right eye as a consequence of the accident. Dr Stone, ear nose and throat surgeon, also identified a profound hearing deficit in the left ear, and tinnitus which he attributed to the accident.

24. Due to his profound level of injury, the plaintiff undertook intensive rehabilitation in order to learn again to walk and talk and perform activities of daily living. His mother gave evidence that she provided intensive assistance during this period, and the defendant accepted that this would sound in damages. Mr Wood was fortunate that his rehabilitation was facilitated by both the professionals at Canberra Hospital and his mother. It is also apparent that he has pursued his rehabilitation with determination and persistence. He was discharged from the hospital on 22 November 1996. Dr McLaren said in his report:

"Despite the severe nature of his traumatic brain injury Mr Wood has been able to return to live in the community, with the assistance provided by his mother. He has persistent cognitive deficits including problems with memory, organisation, problem solving and processing information. There is also significant visual impairment, disruption to normal hormonal production and regulation and high level physical problems. He has also developed epilepsy. Mr Wood remains on replacement thyroid hormone, steroid and testosterone replacements."

25. At the time of this report, being April 1997, Dr McLaren was guarded about the plaintiff's possibilities of future independent living or employment.

26. Dr Fuller is the neurosurgeon who performed the various procedures at Canberra Hospital. He reviewed the plaintiff in January 1997 and reported that he was "continuing to make a remarkable recovery from the severe head injury that he had sustained." In March 1997 Mr Wood developed an epileptic fit, and he has been on medication to control this ever since. He has, fortunately, only had one other seizure, in October 1997, but it is the opinion of Dr Tuck, consultant neurologist who reported in July 2000, that he will continue to require Dilantin medication, or an alternative anticonvulsant, probably for the remainder of his life. A medico legal examination was undertaken for the defendant by Dr Andrews, a neurologist, but was not served. I can draw from this the inference that it would not have assisted the defendant's case, and am left with the plaintiff's medicine.

27. There was also a fracture to the right knee at the time of the fall, and there remains some difficulty with the right patella, which required arthroscopic surgery at Calvary Hospital in March 2001 but in the scheme of things this is a minor problem.

28. I am satisfied that before the accident the plaintiff was a confident and outgoing young man. I am satisfied that he is now significantly lacking in self-confidence in relation to his social activities. He says that he feels that it will be difficult for him to form relationships with women given his ongoing disabilities, and he says that he has great difficulty in forming new friendships.

29. The medical evidence, and the evidence of Mr Wood and his mother, satisfies me that the plaintiff has had a long and relatively slow process of recovery, but he has persevered, and despite the somewhat guarded early prognosis, has indeed made what Dr Fuller described as a "remarkable" recovery. He attended on rehabilitation services with little benefit, but his mother is a senior officer with ACTEW/AGL, the prominent Canberra based utility supplier. She is a manager in their information technology area, and she gave evidence that by late 1997, as he continued to improve in mobility and speech, and at the time that he obtained again his drivers license, she made enquiries with her employer about the possibility of Mr Wood commencing a traineeship with ACTEW/AGL in the information technology area.

30. The company, to its credit, was prepared to take a chance, and Mr Wood undertook the traineeship, enrolling for an Associate Diploma in computing studies at Canberra TAFE. He has continued with these studies, with some obvious difficulty, and his traineeship was successfully completed, and he has secured promotion to a permanent position in the information technology area, where his primary responsibility is in keeping track of the many computing assets within the ACTEW/AGL organisation. He hopes to continue to improve his skill, but he acknowledges that his level of qualifications and skill is below many applicants for positions in the information technology sector, which is also the evidence of his mother. This was not seriously questioned in cross-examination.

31. The plaintiff's case is that his employment at the moment, while genuine in that he is doing a real job with real responsibilities, and doing it, on the evidence, to the satisfaction of his employer, has been fortuitous, and that should anything happen to this position, he would be at a real disadvantage in the open labour market, going up against candidates for information technology jobs with far higher qualifications than he possesses.

32. In relation to general damages, I take account of all of the medical evidence tendered in the plaintiff's case, and the evidence as to the impact the accident has had and continues to have on him. Counsel for the defendant did not tender any medical evidence, and did not dispute that general damages would be assessed on the basis of this being a very significant injury. I have set out above the course of medical treatment and rehabilitation that the plaintiff has been through. He continues to require close medical attention, and his hormonal treatments require regular minor surgical procedures to replace his implants. There is the ongoing cognitive difficulties, and it his hearing and vision impairments continue to be a difficulty, particularly, on his evidence, in perceiving objects in poor light. As his counsel put it, even walking down the street at night poses dangers and threats for him, and will continue to do so. He has made what his doctors have described as a very successful rehabilitation effort, and is able to drive, work, and live to a large degree independently, although his mother continues to provide him with considerable assistance, which will be dealt with under the appropriate category of his claim.

33. I award the sum of $180,000 in respect of general damages, with $100,000 for past loss, generating interest of $11,865 for a total award of $191,865.

34. Out of pocket expenses were agreed in the sum of $127,346.20, which I award. This is a case where there are considerable ongoing medical expenses, which were set out in the evidence. The ongoing cost of this is, I am satisfied, in the order of $30 per week, and Mr Stretton for the plaintiff calculated this out on the basis of the plaintiff's life expectancy which on the tables is 52 years, generates a present value sum of $42,471. There is also a strong likelihood of a future procedure on his knee, presently costed at about $4000. This amounts to a total of $46,471, which I award.

35. The plaintiff's economic loss claim for the past is based on the difference between average male weekly earnings from January 1997 to date and his actual earnings since he has commenced employment with ACTEWAGL. This has been calculated out as a claim for $51, 035, which generates interest in the sum of $15,125.

36. The defendant argues that the plaintiff had an irregular employment record before the accident, and that it is not appropriate to make the assumption that, but for the accident he would have been on average male earnings from January 1997. It is true that the plaintiff had been in and out of irregular work in the years before the accident, and had also commenced, but not completed, tertiary study. Mr Stretton made the submission that this is a not unfamiliar pattern for a young person after completing their secondary education, and that I should be satisfied on the balance of probabilities that Mr Wood would have settled down to begin a career, and that on this basis the claim should be awarded. In this regard it seems to me that Mr Wood's commendable efforts in respect of his rehabilitation must be taken into account. He has shown real determination, and it seems to me that he is not a person who would, but for the accident, have continued much longer with his pattern of casual employment. It seems to me that I can be satisfied that the methodology adopted by the plaintiff is appropriate, and I award the sum of $66,160 in respect of past economic loss.

37. There is also, appropriately, a claim for past superannuation loss. The rate of the Commonwealth superannuation guarantee has varied in the years since the accident from 6% to the present 9%. There is of necessity a degree of discretion required here, and I award the sum of $3500, based on a rate of 7% applied against the economic loss award.

38. The question of the plaintiff's future economic loss presents real uncertainties in a case such as this. The earlier medicine presented a fairly pessimistic picture for the plaintiff's future employability, but through his own efforts, that of his mother in recognising an opportunity as an information technology trainee, and his employer's willingness to take a chance on him, he has now found a well paying job in the information technology sector. It was common ground, however, that he would be at a disadvantage in the open labour market, and that this must be reflected in damages. A court must try to fairly assess damages for the future in the absence of a crystal ball. As Mr Stretton said in submissions, Mr Wood may continue with his present employment, even achieving promotions, or he may lose his job and find great difficulty in ever again achieving his present level of earnings.

39. Counsel for the plaintiff suggested that I could be satisfied on the evidence that the plaintiff has about an equal chance of continuing to work and not work, and this would be an appropriate basis for calculating an award of damages. Counsel for the defendant made the submission that this was a case for a buffer or contingency, but left the quantum at large.

40. The plaintiff's claim for future economic loss was particularised as based on the difference between an average net weekly wage of $715 and the plaintiff's present net wage of $602. This amounts to a claim for $112 per week for the rest of the plaintiff's working life, being 39 years. This would yield a present value of $135,000, and a discounted figure applying the conventional 15% discount for contingencies of $115,000.

41. Given the uncertainties of this case, the particularised claim, it seems to me, amounts to an appropriate global award. I am not satisfied that it would be appropriate to in effect award 50% of the plaintiff's full earnings on the basis that he has equal chances of continuing in employment. While he would face real difficulties if he lost his job, he has secured a permanent position in the information technology sector, and he has been able to undertake study towards higher qualifications. While he has difficulty with this, he is persevering, which is to his credit. There is the real possibility that he will continue with this work and indeed achieve earnings above average net weekly earnings. A buffer award, taking into account the cautions appropriate to such an award as set out by the Full Court of the Federal Court in Fry v McGufficke [1998] FCA 1499, seems appropriate in this case, and a quantum of such an award at $115,000 is in my opinion and taking into account all of the circumstances appropriate, such an amount being also equivalent to an ongoing loss at the difference between his present wage and average earnings. I award the sum of $115,000 in respect of future economic loss.

42. In respect of future superannuation, I would award 9% of his award for future economic loss, being $10,350.

43. There was a substantial claim in this case for care and assistance provided to the plaintiff by his mother. This was particularised with some care, and broken into a period of intense care in the 20 weeks following the accident where 7 hours per day is claimed for a total of 980 hours, and then a period of 40 weeks from November 1996 to September 1997 where 4 hours per day is claimed, for a total of 1120 hours. The rate claimed is $14 per hour, which I am satisfied is appropriate.

44. Mrs Wood gave evidence that she spent a great deal of time with her son at the hospital, and that she actively assisted with his care. I have no doubt that this has materially assisted in his remarkable level of recovery from life threatening injuries. Mr McIntyre SC for the defendant accepted that this past claim was reasonable and appropriate, and this was a most proper concession. I award the sum of $29,400 for this past care.

45. For the period from October 1997 to the present the plaintiff makes a claim on the basis of 2 hours of assistance per day. This amounts to a claim for some 3276 hours. Counsel for the defendant accepted this claim up until the time the plaintiff commenced full time employment, being February 1998.

46. I am satisfied from the evidence that the plaintiff has been gaining in skills of independent living, and does ordinary household activities for himself such as making the bed, washing and hanging out clothes, and ironing. His mother does assist him, but it must be remembered that the damages flow for the accident caused need, and not as a form of general remuneration for voluntary activities performed by a member of the family. Mr McIntyre made the submission that 2 hours a day was excessive for the accident created needs. He pointed to the absence of any direct medical evidence on the need for assistance, although he acknowledged that the undoubted problems with lack of coordination, particularly when tired, did indicate a degree of need for assistance. I am satisfied that his memory can be a problem and that his mother plays an important role in his medication regime. It seems to me on all of the evidence that two hours a day to the date of trial is justifiable and I award this additional sum of $45,864. This makes a total award for past care in the sum of $75,264. Interest must be awarded on this sum, which applying the practice direction and assuming it to be a regular loss generates interest in the sum of $22,270.

47. The claim is continued for the future in the amount of 2 hours per day for the balance of the plaintiff's life. The plaintiff led evidence of the commercial cost of such services. There are two rates, one GST inclusive and one GST exclusive. As the award is for recompense for voluntary service, it seems to me that it would be incorrect to base it on a rate that included a component of GST, so I will look to the GST exclusive rate. The evidence set out the rates for registered nurses, enrolled nurses, and assistants in personal care, and it seems to me that it is the latter rate that is appropriate here in the absence of any expert evidence that a particular nursing expertise is required. The rate is, I am satisfied, $21 an hour. This is the Monday to Friday rate, with higher penalties for weekends and public holidays, but it seems to me that as this is again a recompense for voluntary assistance I need not delve into penalty rates.

48. While I have been satisfied that the claim to the date of trial was appropriate at 2 hours a day, I am not so satisfied for the future. It seems to me on all of the evidence that the plaintiff has significantly progressed, and his care needs from here in would be fairly protected by an award based on an hour a day at $21 per hour, or $147 per week. Such an amount calculated at a 3% discount rate over 52 years yields a present net value of $173,093.

49. This amounts to a total award of $831,319.20. However, as I have found that the plaintiff was himself negligent, it is necessary to attribute the degree of fault to make the final judgment.

50. Counsel for the defendant made the submission that the responsibility for this accident should overwhelmingly be found to rest with the plaintiff, as it was his choice to climb, in the early hours of a wet winters morning, out of the window of the nightclub, to walk along the awning onto the adjoining property, and then to clamber up on to the sun shade, walk along this, and then climb up to the top of the parapet, and then jump off onto a structure that was not designed to be weight bearing. Mr McIntyre said that this was an overwhelming case of the plaintiff bearing responsibility for his own misfortune, and suggested a finding of 90% contributory negligence. Mr Stretton, for the plaintiff, acknowledged that there was contributory negligence, but submitted that the defendant's failure to block the window when it knew that patrons used the windows to gain access to the awning was a greater cause of the plaintiff's accident.

51. The function of the court where contributory negligence is made out is, pursuant to s 15 of the Law Reform (Miscellaneous Provisions) Act 1955, to reduce the award of damages

"to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. "

The classic explanation of this task is that of Dixon CJ, Webb, Fullager and Kitto JJ in Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 where at 16 Their Honours 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."

52. It seems to me, taking into account all of the circumstances of the case, that the plaintiff's conduct here has had a greater impact on his resulting misfortune than the negligence of the defendant in failing to prevent persons from leaving the club and gaining access to the awning. The plaintiff, by walking along the awning, climbing onto the sunshade structure, and then climbing up to the parapet, should it seems to me have departed significantly from the degree of care that a reasonable person visiting a nightclub should be expected to observe. I would attribute responsibility in the proportion of two thirds to the plaintiff and one third to the defendant. Accordingly, I would reduce the assessed award of damages by two thirds, and award the plaintiff damages in the sum of $277,106.40. I will hear the parties as to costs.

53. The defendant issued a third party proceeding against Mr Cameron Brown, who sometimes worked as a disc jockey at the club, but no evidence was lead on his involvement, and no submissions were made. It is of course open to a defendant to wait for the outcome of the substantive action before deciding whether to proceed with a third party claim, and so it is appropriate to let this matter remain open.

I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 31 May 2002

Counsel for the Plaintiff: Mr G. Stretton

Solicitor for the Plaintiff: Snedden Hall and Gallop

Counsel for the Defendant: Mr J McIntyre SC

Solicitor for the Defendant: Minter Ellison

Counsel for the Third Party: Mr Baxter

Solicitor for the Third Party: Baxter & O'Keeffe Lawyers

Date of hearing: 22 & 23 April 2002

Date of judgment: 31 May 2002