Chorlton v Australian Capital Territory [2003] ACTSC 91 (14 November 2003)

Last Updated: 24 November 2003

DEBORAH ANN CHORLTON v AUSTRALIAN CAPITAL TERRITORY

[2003] ACTSC 91 (14 November 2003)

NEGLIGENCE - public authority - cycle paths - design and construction - duty of care to users

DAMAGES - personal injury - T7 fracture - no issue of principle

Civil Law (Wrongs) Act 2002 s 110

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

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

No SC 125 of 2002

Coram: Master Harper

Supreme Court of the ACT

Date: 14 November 2003

IN THE SUPREME COURT OF THE )

) No SC 125 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DEBORAH ANN CHORLTON

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Coram: Master Harper

Date: 14 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $140,654.00.

1. 1. This action for damages for personal injury was commenced in the Magistrates Court on 2 March 2001. The originating process was presumably served on the defendant shortly after that date, and a notice of grounds of defence was filed on 7 May 2001. The action was transferred to this Court on the plaintiff's application on 15 March 2002: the costs of the application for transfer were reserved.

2. The plaintiff was born on 24 November 1970 and is 32 years old. She is presently self-employed as a hairdresser in Tamworth, NSW. She grew up in Dubbo, leaving school during year eleven to undertake a hairdressing apprenticeship. At the end of 1990 she had the opportunity to come to Canberra, to stay with a girlfriend rent-free for three months. She remained in Canberera until she moved to Tamworth in early 2000. Initially she was employed at a hairdressing salon at Belconnen Mall. In December 1992 she moved to a job with Australia Post which offered better hours and money.

3. On 21 February 1999, the plaintiff was roller-blading on a bicycle path in Gungahlin when she fell and injured her back.

4. The plaintiff was by then an experienced roller-blader. Her then husband (they have since divorced) was a triathlete and marathon runner, and she would accompany him on training runs around Canberra's lake paths, on her roller blades. At the time she was living at Spence and would regularly meet a friend, Claire Abrey, who lived at the nearby suburb of Ngunnawal, and they would skate on roller-blades a loop route commencing from Claire's home, into Nicholls, around Gungahlin Pond and back. This took about an hour. Claire was considerably less experienced and proficient than the plaintiff, who had been roller-blading for six or seven years and roller-skating prior to that. Claire had not engaged in roller-blading before meeting the plaintiff.

5. The plaintiff and Claire Abrey, on the day of the accident, were keen to identify a shorter loop which they could cover in about half an hour. The plaintiff was in the habit of driving from Spence to Claire's house in Ngunnawal: this took her through the suburb of Nicholls and onto Clarrie Hermes Drive, being the western extension of Gungahlin Drive beyond Ngunnawal. To the north of Nicholls and the west of Ngunnawal lies the proposed suburb of Casey, as yet undeveloped. From two roundabouts on Clarrie Hermes Drive and another two on Horse Park Drive, provision has been made for roads to enter Casey, but at this stage they are paved for only a short distance.

6. Some distance west of the roundabout at the junction of Horse Park Drive there is a pedestrian underpass below Clarrie Hermes Drive. This forms part of a concrete path which extends from the Perce Douglas Memorial Playing Fields in Nicholls through the underpass into Casey. Not far from the underpass, the path turns west and runs parallel to Clarrie Hermes Drive. The plaintiff had seen this path when driving to her friend's home in Ngunnawal. She assumed that the path extended east of the underpass and in a northerly direction.

7. On 21 February 1999 the plaintiff drove to Ms Abrey's home, and the two friends commenced to follow a concrete path on their roller blades, in a westerly direction just north of and parallel to Gungahlin Drive. This took them past Gold Creek Homestead towards the roundabout at the junction of Horse Park Drive, where the path turned north to follow Horse Park Drive on its eastern side. They reached a junction on the path near Gera Place. The path continued north, but it was joined by a branch on their left, which wound down a slope and through an underpass beneath Horse Park Drive. The plaintiff skated down the path at her normal speed. Ms Abrey was some distance behind her: she was much less confident on slopes, and walked sideways on her roller blades down the steeper part of the slope.

8. On the Ngunnawal side of the underpass, another path joined the path on the left, but went only a few metres over a stormwater drain. It would have been obvious to an approaching skater well before reaching this path that it went nowhere.

9. On the Casey side of the underpass, it would have appeared to a skater approaching the underpass from the east that the path divided into two, one going north and the other south. The path did not go straight ahead: there was a steel pipe fence, apparently to prevent users of the path from continuing over a drop into a drain beyond.

10. In fact, the path continued only for a very short distance to the north and south, stopping abruptly. Beyond was the natural paddock grassland of the undeveloped Casey area. The evidence of the plaintiff and Ms Abrey was that the grass was quite long.

11. The plaintiff assumed, incorrectly as it turned out, that if she turned left she would find herself on the path which she thought linked up with the path she had seen from Clarrie Hermes Drive. She skated through the underpass, accelerating because she expected the path to rise on the other side. She wished to build up some momentum to get her up the slope. As she emerged from the underpass and curved to her left, she suddenly realised that she had come to a dead end. She made a split-second decision to turn around. I accept that she would not at that time have taken in the fact that the path ran out to the north also, and that she may have formed the intention, almost at a subconscious level, to take the path north. As soon as she turned she must have become aware that the north fork was also a dead end. She probably tried to turn again or stop. In the process she lost her footing and fell heavily, landing on her coccyx. She injured the sacro-coccygeal area and also fractured her T7 vertebra. The plaintiff's evidence was that she spun around because she formed the view that she did not have time to brake and thought perhaps she could go the other way, but found she could not. There were stones and glass on the path. She was trying not to hurt herself, and saw it as preferable to stay on the path rather than hit the fence or go onto the grass. She thought it likely that if she ran into the grass she would hurt herself.

12. She said that the impact hurt beyond anything she had ever felt before. She rolled onto her side. She screamed and moaned. Very shortly her friend Claire arrived on the scene. Claire ran off the end of the path into the grass and bushes, and fell over, fortunately without injury. The plaintiff was unable to get up for about fifteen minutes. After some time, she and her friend made their way back on the path the way they had come, with the plaintiff hanging onto Ms Abrey for support. It was downhill most of the way back, and the plaintiff's evidence was that whilst she was able to make her way back on roller blades, she would have been unable to walk. At Ms Abrey's home she was given Panadol, and ice was applied to her chest and her tailbone. Her husband came a little later and picked her up. She had to lie in the back of the car on the trip home, and took Panadeine Forte. Shortly after the fall she had a sensation that it was getting dark, though in fact it was not.

13. She woke vomiting at about 2:00 am on the night of the fall. Her husband took her to the Canberra Hospital. She could not stop vomiting, and everything appeared very dark to her. She could not walk, and felt that her breathing was restricted. She spent about three hours at the emergency department, where x-rays were taken. The doctors at the hospital seemed to think, from her description of her symptoms, that she might have cracked her sternum. She was sent home and told not to do anything for six weeks. The next day she was in extreme pain and still vomiting. She could not use her muscles, which meant that she was unable to go to the toilet. She lay in bed and was unable to move. She was not able to lie on her side or on her back.

14. About a week later, she had a telephone call from the hospital to say that a fracture of the T7 vertebra had been identified on the x-ray. After a further period, she became conscious of back pain, which may have been masked in the earlier days by her chest pain. She described pain which started in her back and came around to her chest, which she said felt like a heart attack.

15. She was certified unable to go back to work for about eight to ten weeks. She returned to work on light duties in the mailroom but was unable to get back to mail delivery work. She could not cope with riding a motorbike. After about six months, she was offered a redundancy package and took this. She was very disappointed because she had loved her job. Her duties had included mail delivery at Reid, which she described as a nice suburb with nice people. She enjoyed the outside work and the fact that she was finished for the day at the end of her mail run, sometimes as early as 11:00 am.

16. In September 1999 she obtained work with Channel Ten in Canberra in the makeup room, working for two hours a day, five days a week. This job lasted six weeks. She was unable to continue because of pain and inability to stand for long periods. She did not work again in Canberra. She moved to Tamworth in July 2000 and found work at the TAFE College teaching hairdressing. She also worked as an employee at a few different hairdressing salons. This was a little unsatisfactory, particularly because as a casual employee she received no pay during TAFE vacations.

17. In September 2002 she purchased her own hairdressing business in Tamworth. As her own boss, she was able to sit down or lie down when she needed to, and take time off. Her previous employers had found her need to do this unsatisfactory. She now has an apprentice and two casual employees who assist when required. She is unable to work long hours. She has some concern that the staff do not work as hard if she is not there, but there are times when she needs to go home and lie down. Sometimes, if there are no appointments, she goes home early.

18. Throughout the period since the fall, the plaintiff has had physiotherapy and massage therapy, both of which she finds beneficial. She also attends a gymnasium in an attempt to maintain her physical fitness. She is unable to cope with full-time work.

19. Prior to the fall the plaintiff had been injured in a motor accident. In November 1997 she was riding a small motorcycle when she was hit by a taxi. She injured her right knee. One of the reasons for her roller-blading was to try to build up the muscles around her knees. She still has some pain in the right knee from time to time, for example, if it is going to rain. Her evidence was that she settled a claim for that injury for $8000 early in 2001. I am satisfied that the knee injury had largely recovered by the time of the fall, and did not interfere with the plaintiff's earning capacity or leisure activities other than to a very minor degree.

20. The medical evidence included a report by Dr Atindra Bhattacharyya, an orthopaedic surgeon who saw the plaintiff in Tamworth in November 2002 at the request of her solicitors. On examination he found that the plaintiff was tender over the T6-7 area, and that rotation of the dorsal spine was restricted by about 30% in both directions. She was also tender over the sacro-coccygeal joint. He had the benefit of a report of the x-ray done the day after the accident, which showed a fracture of the superior endplate of the seventh thoracic vertebra with minimal loss in height, consistent with an anterior wedge compression fracture. He regarded the fracture as a mild one. The plaintiff continued to suffer stiffness in the middle of the back and pins and needles in the left foot. He accepted that she required occasional analgesics and that she found difficulty in sitting on a hard surface and in travelling for more than two hours. He accepted that the plaintiff had continuing back problems. His prognosis was guarded.

21. The plaintiff's Canberra general practitioner, Dr Maria Cox of Spence, saw the plaintiff on ten occasions for treatment after the fall, the last being in May 2000. She expected at that time that the plaintiff would continue to have pain for the foreseeable future.

22. Reports were also in evidence from Ms Carolyn Young, a Tamworth physiotherapist who has been treating the plaintiff since her move to that city. She expressed some concern about the plaintiff's ability to cope with spinal pain should she become pregnant and thought that the plaintiff's spinal condition would deteriorate over time.

23. None of the plaintiff's practitioners were required for cross-examination, and counsel for the defendant neither called medical evidence nor addressed on quantum. It seems from the medical evidence that the plaintiff's condition has reached a plateau, and there is little optimism that further improvement will take place.

24. The defendant relied upon expert evidence given by Ms Jennie Milton, who had owned Adrenalin, the shop in Canberra where the plaintiff bought her roller-blades, and has since moved to Brisbane. Ms Milton has been a roller-blading instructor for some years. Her work has included training other roller-blading instructors at an advanced level. She has worked with the ACT and Queensland roller-blading teams and has been engaged as a consultant by a number of companies in the United States, Hong Kong and Taiwan, as well as Australia. Her expertise in relation to roller-blading was unchallenged. I accept that she is a person with a national and international reputation in the field. She is highly qualified to give evidence about roller-blades themselves, that is the boots, wheels and brakes which form part of the equipment: and also about the techniques used for skating on roller-blades, including the recognised methods for turning and stopping. I accept, also, that she has outstanding skill as a roller-blade skater.

25. Ms Milton was taken to the site of the plaintiff's injury in January 2002 by the defendant's solicitor and counsel. A video was taken showing the area of the path leading to the underpass, and the path on both sides of the underpass. There was also video of Ms Milton skating, at different speeds, down the path towards the underpass, and successfully stopping without falling over, using a number of methods. She was able to skate at high speed down the path and stop, without turning, before reaching the steel fence directly in front of the underpass. She was able to turn left and stop before reaching the end of the path, by turning one boot sideways and using the wheels as a brake on the path surface. She was able to run her skates onto the grass at the end of the path, and stop naturally in a short distance. The grass was short and looked to have been recently mowed.

26. Ms Milton was asked to skate down the path and through the underpass, raising an arm when she could first see that the path came to an end. She raised her arm whilst still in the underpass, perhaps two-thirds of the way through it.

27. Ms Milton expressed the opinion that it would be unwise to accelerate coming out of the underpass with the intention of gaining momentum for the approaching rise in the path, in circumstances where one could not see that the path ahead was clear. She thought that this would be very inadvisable: for example a bicycle might be coming in the other direction, on the wrong side of the path.

28. I accept Ms Milton's evidence without reservation, but I do not find it of much assistance in determining the issues that arise in this case. In the first place, Ms Milton knew that she was being taken to the scene of a roller-blading accident. It is likely that, even when she skated through the underpass for the first time, she would have been a little more apprehensive than the ordinary recreational skater that she might be approaching a section of the path which held some danger. After the first time she came through the underpass, she knew precisely what that danger was. By then, she knew where the path stopped, and she knew what to expect as she emerged from the underpass tunnel. Her reaction time would therefore have been considerably shorter than that of a recreational skater going through the tunnel for the first time. Further, Ms Milton is a roller-blader of world-class ability. The plaintiff at the time of the accident was an experienced roller-blader, but not of anything like the same experience and skill as Ms Milton. It would hardly be surprising that Ms Milton would be able to stop more quickly than someone in the position in which the plaintiff found herself, and that she would have at her disposal a greater number of methods available for turning and stopping. It does not seem to me reasonable to test the plaintiff's conduct against so high a standard.

29. The questions to be determined in this case are whether the defendant owed a duty of care to the plaintiff, the scope of that duty, and whether the defendant was in breach of it. If those questions are resolved in the plaintiff's favour, it will become necessary to consider whether the plaintiff was guilty of contributory negligence.

30. It is common ground that the defendant was responsible for the design, construction, care, control, management and supervision of the path on which the plaintiff was skating, and that the plaintiff was behaving lawfully in skating on the path.

31. Since the decision of the High Court of Australia in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; [2001] 206 CLR 512, claims against public authorities in the position of the defendant are to be determined in accordance with the ordinary rules of negligence. It was submitted on behalf of the defendant that the facts of the present case were comparable with those in Ghantous. Ghantous was a claim by a pedestrian who had lost her footing and fallen because of a differential in height between the concreted part of a footpath and the adjoining earthen surface. Callinan J, in his analysis of the facts, with which the majority agreed, said at para. 355:

There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.

32. As Kirby J explained in the same case at paras 247-248:

The reason Mrs Ghantous fails, in my view, is not any lack of attention on her own part... the real reason she fails is that no breach of duty is shown on the part of the local authority which she sued. Local authorities are not insurers for the absolute safety of pedestrians and other users of roads and footpaths. To recover, a person in the position of Mrs Ghantous must establish a want of reasonable care causing his or her injuries. Her mishap was simply an accident. Her damage was not shown to be the result of negligence on the part of the respondent. No other basis was made out upon which she could succeed.

33. I do not agree with the submission of counsel for the defendant that the present case is one where such findings would follow. There are two significant differences. The plaintiff in Ghantous failed to see, in broad daylight, a difference in height between the concrete and the earth which was plain for all to see, and of which she had previously been aware. More importantly, as explained by Kirby J, the defendant Council had been guilty of no act or omission capable of amounting to negligence.

34. In the present case, the defendant was responsible for the design and construction of a path which came to a dead end to right and left at the end of an underpass at the foot of a downhill slope. The dead ends to the left and right could not be seen by a person using the path until well through the underpass tunnel. Although the tunnel has been described as a pedestrian underpass, the defendant must be taken to have been well aware that the path would be likely to be used by cyclists and roller-blade skaters. The defendant could have extended the path beyond the underpass in both directions, far enough for it to be obvious to a user of the path that it was coming to an end, in sufficient time to do something about it. Equally, the defendant could have erected signs beside the path, warning users that they were coming to a dead end. The risk of someone in the position of the plaintiff suffering injury was in my view foreseeable. It was not even particularly remote, in the sense of being extremely unlikely to occur: cf Wyong Shire Council v Shirt [1980] HCA 12; [1980] 146 CLR 40 per Mason J at 48. As his Honour said in that case,

In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

35. I am satisfied that in the present case, the risk was foreseeable by the defendant and that alleviating action could have been taken at modest expense. It was not suggested on behalf on the defendant that any relevant issue arose as to the financial or other resources available to the defendant, or as to the broad range of the defendant's activities, functions and obligations, as contemplated by s 110 of the Civil Law (Wrongs) Act 2002. That section is not yet in effect but appears to do little more than express the existing common law.

36. Counsel for the defendants submitted that if the Court was satisfied that the defendant had been negligent, there should be a finding that the plaintiff was guilty of contributory negligence of such an order that she should be regarded as entirely responsible for her own injuries. It is unnecessary for me to determine whether such an outcome is achievable as the law presently stands.

37. The defendant pleaded contributory negligence on the following bases:

a) failure to keep any or any proper lookout

b) failing to have proper regard for her own safety

c) failing to observe where she was going

d) failure to wear appropriate safety devices

e) failing to apply the brake of her roller-blades at all or in time to permit her to roller-blade safely, cautiously and defensively

f) failing to slow her speed when turning a corner so as to permit her to respond to changed conditions

g) failing to take hold of the fence beside the path to assist her in slowing and staying upright.

38. I am not satisfied on the evidence that the plaintiff was not looking where she was going, or that she did not respond quickly enough when she became aware that she had come to the end of the path. Nor am I persuaded that she acted inappropriately, considering that she was faced with an emergency and had to make a split-second decision and then implement it. I do not accept that she should have slowed down as she emerged from the underpass and the path curved to her left. Users of such paths are entitled to assume that other users will behave responsibly, and that those using the path at speed will keep to their correct side, unless the user observes something inconsistent with that assumption. The submissions as to what the plaintiff might have done are made with the benefit of hindsight: no doubt, having regard to the severity of the injury, the plaintiff now wishes that she had taken some different option, but it does not follow from this that the choice she made at the time amounted to a failure in some way to have proper regard for her own safety.

39. Kirby J made it clear in Ghantous that he was basing his finding on the fact that the local authority had committed no breach of duty, rather than "upon any enlarged assumptions about a pedestrian's need for vigilance for his or her own safety." As his Honour went on to say,

I do not agree in the latter day enthusiasm for the notion of contributory negligence that is abroad. It goes against the steady trend of common law authority in this country and indeed in Australian courts back to colonial days to exaggerate the expectations that manifest themselves in various forms of disqualification for suggested contributory negligence. (Ghantous, para 247)

I am not satisfied that the plaintiff's injuries were caused to any extent by a failure to take reasonable care for her own safety.

40. This brings me to damages. The plaintiff suffered a severe injury. The extent of her pain immediately after the accident, and in the period following, is described above. She continues to suffer from back pain which interferes with her working capacity, and prevents her from engaging in a variety of physical activities. The latter is of particular significance for a plaintiff for whom athletic and physical activities were such an important part of life. Her present level of disability is unlikely to improve and may get worse in the long term. The view has been expressed, and not challenged, that she faces an increased level of spinal pain if she becomes pregnant. I assess the plaintiff as a relatively uncomplaining and strongly motivated person. This is not to say that the pain and disability she suffers are any less significant. It seems to me that an appropriate sum to compensate the plaintiff for her pain and suffering and loss of enjoyment of life is $60,000.00, which I apportion, having regard to her age, as to $20,000.00 for the past and $40,000.00 for the future. I award interest on the past component of $2,000.00.

41. Past treatment expenses are agreed at $1,154.00. The plaintiff has been fortunate to have been able to make an arrangement in Tamworth for massage therapy on a non-commercial basis, but it cannot be assumed that this will remain available permanently. I note from the tables contained in the appendix to Luntz, Assessment of Damages for Personal Injury and Death, 4^th Edition (Table 4A) that the value of a regular loss of $1.00 per week to a female, assuming compound interest at 3% per annum and mortality according to the Australian Life Table 1997-1999, in respect of a woman now aged 33, is $957.40 to age 60, $1059.40 to age 65 and $1,331.20 to death. Using those figures as a guide, and applying the conventional reduction of 15% to take account of the vicissitudes of life, it seems to me that a reasonable allowance to compensate the plaintiff for future treatment expenses is $7,500.00.

42. The evidence does not permit me to calculate a sum to compensate the plaintiff for impairment of earning capacity to the date of judgment on a mathematically precise basis. Still less is this possible in relation to the future. It is nevertheless clear that the plaintiff had substantial periods out of employment, and that for the whole period she has been unable to work at anything like the same level of intensity as before her injury. Counsel have agreed that I may have regard to the earning figures set out in the statement of particulars. The plaintiff was unable to work at all from 22 February 1999 to 2 April 1999, but she was paid sick leave for that period, and as she has left that employment, she is under no obligation to repay it. Thereafter she began a graduated return to work on light duties. Her earnings were supplemented by sick pay but she lost the opportunity to earn overtime payments which had been a substantial component of her income prior to the accident. In 1997-1998, her taxable income with Australia Post was $28,222.00. She left Australia Post in September 1999, and was paid a redundancy lump sum of $9,220.00. This was included in her 1999-2000 taxable income of $31,609.00. She lost about $5000.00 in that year through the unavailability of overtime work.

43. For 2000-2001, her taxable income was $23,686. This was the year she moved to Tamworth. She was paid $45.00 per hour for her teaching work at the Tamworth TAFE College. Her taxable income for 2001-2002 was $30,275.00. On 1 September 2002, she bought her hairdressing business for $30,000.00. It is estimated that the business earned a net profit of about $32,000.00 from 1 September 2002 to 30 June 2003, through final figures are not available at this time.

44. These figures are incomplete, but they do not reveal any significant drop in income level following the accident. The plaintiff has been fortunate that she has been able to earn income in a variety of ways which have protected her from much actual loss. It is clear from her evidence, however, that she is no longer capable of working the same hours she could before her accident. She needs to take considerable time off. For the period since the accident, now approaching five years, I am satisfied that a reasonable sum to compensate the plaintiff for loss of earning capacity, including interest, is $30,000.00.

45. For the future, I regard it as reasonable on the evidence to value the reduction in the plaintiff's earning capacity at a net amount of $100.00 per week, that is to say about $5,000.00 per year. There are many imponderables in assessing an appropriate sum to compensate a young woman for loss of earning capacity to cover the rest of her working life. Again I have regard to the present value table in Luntz, and the conventional 15% reduction for vicissitudes. All things considered, it seems to me that an appropriate sum to compensate the plaintiff for loss of earning capacity for the future is $40,000.00.

46. The total of the individual components is:

general damages $60,000.00

interest on past component of general damages $2,000.00

treatment expenses - past $1,154.00

treatment expenses - future $7,500.00

past loss of earnings including interest $30,000.00

loss of earning capacity $40,000.00

$140,654.00

47. I am satisfied that the total represents an appropriate award of damages, proportionate to the losses suffered by the plaintiff as a result of the defendant's negligence. There will be judgment for the plaintiff in the sum of $140,654.00. I will hear the party as to costs and any other consequential orders.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 14 November 2003

Counsel for the plaintiff Mr B J Salmon QC

Solicitor for the plaintiff Higgins Solicitors

Counsel for the defendant Mr A Doig

Solicitor for the defendant ACT Government Solicitor

Date of hearing 27 -28 October 2003

Date of decision 14 November 2003