Posetti v Kosciusko Thredbo Pty Limited [2004] ACTSC 50 (23 June 2004)

Last Updated: 24 June 2004

JULIE POSETTI v KOSCIUSKO THREDBO PTY LIMITED

[2004] ACTSC 50 (23 June 2004)

NEGLIGENCE - personal injury - ski resort - claim against resort operator - timber ramp on boardwalk - gradient of ramp - compliance with building code - compliance with Australian Standards - effect of ice on ramp

DAMAGES - personal injury - T7 fracture - damage to associated structures - chronic pain dysfunction syndrome - loss of career - no issue of principle

National Parks and Wildlife Act 1974 (NSW)

National Parks and Wildlife Act Regulations 1974 (NSW), r. 11

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44

Practice Direction No 2 of 2001

No. SC 487 of 2000

Judge: Master Harper

Supreme Court of the ACT

Date: 23 June 2004

IN THE SUPREME COURT OF THE )

) No. SC 487 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JULIE POSETTI

Plaintiff

AND: KOSCIUSKO THREDBO PTY LIMITED

Defendant

ORDER

Judge: Master Harper

Date: 23 June 2004

Place: Canberra

THE COURT ORDERS:

1. Judgment be entered for the defendant.

Background

1. The plaintiff's claim is for damages for injuries which she suffered when she fell on a ramp at Thredbo in New South Wales on 5 August 1997. The defendant is sued as the company which occupied, managed and controlled the area of land on which the ramp was located.

2. The company is, and was in 1997, the lessee of part of the Kosciusko National Park, where it operates, for commercial purposes, the Thredbo Ski Resort. The resort is promoted by the defendant as the best resort in the southern hemisphere, and is regarded by many as Australia's premier ski resort. The land includes extensive downhill ski runs on the south-facing slopes of the Ramshead Range, accessed by a complex of chairlifts and T-bars. At the foot of the slopes lies a substantial village, which includes commercial, club and private lodges and apartments, a hotel and a number of restaurants, cafes, bars and shops. Portions of the village are located on both sides of the Thredbo or Crackenback River, which flows through the valley in a generally northeasterly direction. Whilst primarily a winter resort, Thredbo is a popular destination for tourists in the summer months also, offering a golf course, tennis courts and a bobsled which was installed some ten years ago.

3. The terrain is steep, and much of the village has been built on sharply inclined ground, particularly on the southern side of the river. Shortly before midnight on Wednesday 30 July 1997, without warning, a catastrophe struck the village. There was a landslide, and an entire ski lodge, foundations and all, slid down the hill, destroying another lodge in its path. There were people in both lodges, mostly asleep in bed. By daylight, police, ambulance and emergency services personnel were in the village, and over the next few days and nights rescue workers toiled ceaselessly in an attempt to rescue any occupants of the lodges who might still be alive. As it turned out, there was only one survivor. It was a week before the last body was removed from the wreckage.

4. 1997 was a poor season for snow. The occupation levels of the destroyed lodges and indeed the entire village were well below capacity. The landslide and the rescue project were, as one would expect, the major national news story of the time. A large media contingent arrived in Thredbo to report on the events and to keep the public informed of developments.

The pleadings

5. The statement of claim asserts that the defendant at all material times occupied and/or managed and/or controlled an area of land near Thredbo in New South Wales containing timber walkways providing access to Friday Flat, and that on 5 August 1997, the plaintiff was walking along one of the walkways when she slipped and fell heavily and was injured, suffering a compression fracture of the T7 vertebra and soft-tissue injuries to the back and elbow. The injury is alleged to have been caused by the negligence of the defendant by its employees and/or agents. The action went to trial of the following particulars of negligence:

(i) Constructing and/or leaving in place a ramp on the walkway which was extremely slippery and hazardous in icy conditions.

(ii) Constructing and/or leaving in place a ramp on the walkway which was too steep for icy conditions.

(iii) Failing to ensure that the surface of the walkway on the ramp was raised or otherwise treated to reduce the risk of slipping during icy conditions.

(iv) Failing to supervise or supervise adequately the use of the walkway during icy conditions when it was extremely hazardous.

(v) Failing to provide adequate warnings of the risk of using the ramp during icy conditions.

(vi) Failing to warn persons such as the plaintiff that they should not walk upon the walkway in icy conditions unless special footwear was used.

(vii) Constructing and/or leaving in place handrails adjacent to the ramp which were inadequate.

6. The defence put all of these assertions in issue, and alleged that the plaintiff was guilty of contributory negligence, particulars of which were:

(i) Failure to take proper precautions for her own safety.

(ii) Failure to wear appropriate footwear for the prevailing weather conditions.

(iii) Failure to take any steps to avoid the consequence of any act or omission of the defendant relied upon by her.

(iv) Carrying equipment in such a way as to cause the plaintiff to be unstable.

(v) Carrying equipment in a bag slung or placed across the front of the body.

(vi) Failing to carry equipment stabilised in a backpack or similar container such that the plaintiff would not become unbalanced.

(vii) Failing to grip the outer edge of the balustrade provided so as to prevent the plaintiff falling.

The case on liability - the plaintiff's evidence

7. At the time of the landslide, the plaintiff was a senior political reporter with the Australian Broadcasting Corporation, based in Canberra. She was asked by the head of her department to go to Thredbo to relieve other ABC staff who had been down there for some days. The request came at relatively short notice: the plaintiff packed some clothes and equipment and went to Thredbo on the afternoon of Monday 4 August 1997. She was unfamiliar with the village and with the snowfields generally. She stayed at the Thredbo Alpine Hotel, which the ABC was using as its base. Her duties were to commence on the morning of Tuesday 5 August 1997, and her first task was to attend a press conference in a building in the Friday Flat area, at the northeastern end of the village. The building would in normal circumstances have been accessible by Friday Drive, the main access road into the village, but use of the road was heavily restricted by police and emergency workers.

8. There was another route for pedestrians from the hotel to the press conference site, via one of two bridges across the river in front of the hotel. For part of its length, at either end, the path was paved with interlocking concrete paving blocks. The path led around the Thredbo tennis courts on their northern side. East of the tennis courts, the path consisted of a raised timber walkway, with slight undulations matching the contours of the ground a short distance below. The walkway led to a rectangular platform at the foot of the bobsled track, upon which was a small timber building. The path joined the platform at its northwestern corner, and continued in the same direction via a ramp at its southeastern corner. The timber walkway ended at the foot of the ramp, and the rest of the path to the residential development of Woodridge and the Friday Flat area was again of interlocking pavers. Because of the manner in which the path joined the platform at the bobsled, a pedestrian using the path for access between the hotel and the Woodridge-Friday Flat area was required to change direction at the platform in a zigzag consisting of a right and left turn, to get around the building.

9. There was a point on the path between the bobsled building and Woodridge which was directly opposite the landslide site on the other side of the river and which afforded a convenient vantage point for press and television cameras. The plaintiff knew vaguely where the press conference building was, having driven past it on her way in, but she had no idea how to get from the hotel to the building. An ABC colleague, Ms Fran Kelly, a former supervisor of the plaintiff, also from Canberra, had been in Thredbo for some days and knew the way, and the plaintiff went to the conference on the Tuesday morning, 5 August, with her. The plaintiff was carrying a box-shaped bag of thick fabric containing her tape recorder, batteries, mobile telephones, microphones and other broadcasting equipment. The bag had a shoulder strap, and the plaintiff, who is left-handed, carried it with the strap over her left shoulder and the bag to the front of her body. A similar bag was in evidence and its dimensions were estimated by counsel at about 15 inches by about 12 inches (45 by 30 centimetres). The plaintiff estimated its weight at between 10 and 20 kilograms.

10. The plaintiff and Ms Kelly followed the path past the tennis courts to the bobsled building, around it and down the ramp. The plaintiff's evidence is that she had been using both hands to stabilise her bag. She noticed that the ramp appeared to be very steep. She had already decided that the walkway was icy and potentially slippery, and she put her left hand on the left balustrade of the ramp. Ms Kelly was by this time a step or two in front of her. The plaintiff took a couple of steps and felt her feet starting to slip. She tried to grab hold of the railing, and her feet flew up in front of her. She fell heavily on her back. She was winded and felt shocked and numb, with a tingling sensation in parts of her body. It was some time, the plaintiff thought perhaps twenty minutes, before she was able to stand up and continue. Ms Kelly turned around and came back to assist. She asked the plaintiff if she was all right. Another reporter not then known to the plaintiff, James Woodford of the Sydney Morning Herald, arrived on the scene and stayed with the plaintiff to help her. Ms Kelly walked on to represent the ABC at the press conference.

11. The plaintiff, asked whether she had made any observation of the surface on which she had fallen, said that it was extremely slippery. It was like a thin, glistening layer of ice on top of the wood. Eventually she got up and, with Mr Woodford's assistance, continued on to the press conference venue. By the time they got there, the conference was over.

12. Under cross-examination, the plaintiff said that she did not remember specifically whether she noticed a similar glistening on the walkway until she got to the top of the ramp. Her recollection was that there was no gap between the timber planks forming the ramp, so that there was nowhere for melting water to run between the boards. It appeared as though there was a thin layer of water that had frozen on the surface.

13. The plaintiff was asked whether she could not have grasped the balustrade or handrail. He answer was that she tried to grip it but was unable to because it was too wide. She had no stability. Her fingers were too short for her to be able to grasp the top of the balustrade. She tried to grip the inside edge, that is the edge closer to her, rather than the outer edge. She recalled running her hand along the top and trying to grip underneath the inside edge with her thumb. She was asked why, when she found that this wasn't any use, she did not try to change her grip. Her reply was that by that time she was flying into the air and landing on her back. She denied that she was in any hurry to get to the press conference, or that she and Ms Kelly were running late for it. Her general recollection was that by the time of the fall, the sun had not come over the mountains and it was still very cold and a little misty, though not enough to interfere with visibility.

14. On 26 August 1997, the plaintiff lodged a Comcare claim. In the claim form she described the injury in the following terms:

Slipped, fell on back while walking along icy wooden ramp - causing immediate back pain.

The form asked her to describe in detail the events which contributed to the injury. Her response was:

Slippery, sloping ramp covered with ice - ice was beginning to melt. I lost my footing and landed on my back - my fall being broken slightly by my elbow.

15. On 30 October 2001, the plaintiff verified answers to interrogatories on oath. Some of her answers were tendered by the defendant. The answers included the following.

A15 (i) I was calmly walking with my colleague to the first press conference of the day. I was walking with one foot in front of the other - straight ahead.

(ii) As I began the descent down the ramp I moved towards the over-sized railing and began to run my left hand along the top of the railing for support. It was impossible to grip as the balustrade was far too wide. I used my right hand to continue stabilising the equipment bag I was carrying across the front of my body. My left and right feet were engaged in the normal process of walking - one foot in front of the other.

(iii) I was carrying a reporter's kit bag across my body with the strap running left to right across my body and the bag positioned in front of my body so that I could stabilise it and use my hands to redistribute the weight. I'm unsure of exactly how much it weighed by (sic) it contained a professional Sony tape recorder, microphone, notepad, mic. Stand, tapes and other sundry items, which in total may have weighed around ten kilos.

(iv) I was looking and facing straight ahead while watching where I put my feet.

A16 The weather was clear and there was no snow on the ramp or walkway. Visibility was good.

The case on liability - the plaintiff's supporting witnesses

16. Both parties called a number of lay witnesses who gave evidence as to the circumstances of the plaintiff's fall and the condition of the walkway and ramp. The plaintiff called four fellow-ABC staff members, and a journalist employed by the Sydney Morning Herald. The defendant called six of its own employees, a police sergeant and an ambulance officer. It is necessary to summarise this evidence.

17. Ms Fran Kelly was the plaintiff's immediate superior in the ABC bureau at Parliament House in Canberra, and had worked with her previously in Sydney. She thought highly of the plaintiff as a political reporter and radio journalist. Ms Kelly travelled to Thredbo as part of the ABC team covering the recovery efforts. Her recollection was that she arrived in Thredbo either on Monday 4 August (the same day as the plaintiff) or perhaps on the previous day. She was familiar with the route to the press conference. She remembered walking out of the village, across the road and onto some kind of wooden boardwalk. She had a memory of a sort of ramp that went up and over something, and they were on the downward slope of that when the plaintiff slipped. She said that they were walking along talking and she would have been alongside the plaintiff, or perhaps half a step ahead of her. The plaintiff's feet went from under her, and she slipped and ended up on the ground. Ms Kelly waited with her for a short time but left to attend the press conference, after another journalist, James Woodford, offered to stay with the plaintiff. Her memory of the state of the boardwalk on the morning of the fall was that it was slippery and icy.

18. Ms Kelly agreed in cross-examination that she was first asked to recollect the circumstances of the fall earlier in 2003. She made no notes or record at the time of the incident. She agreed that her memory was not absolutely clear. She did not know Thredbo well, and that occasion was the only time she had been there. She had a clear memory of the boardwalk because it was a route she took regularly during the three or four days she was there. Cross-examined about whether there was ice present, she said that she remembered walking on the boardwalk gingerly and feeling that it was a slippery experience being on that surface. It was very cold, though it did not snow whilst she was there. She conceded that she was not a snow person and was not used to walking around snow resorts. She recalled feeling that the wooden boardwalk was precarious. The surface was slippery with a thin layer of ice. Ms Kelly was not able to recollect any handrail.

19. The plaintiff also called Ms Anne Barker, an ABC journalist in Canberra in 1997. She arrived in Thredbo the day after the landslide, which would have been 31 July, and stayed there until the following Thursday. She stayed at the Thredbo Alpine Hotel and walked via the boardwalk to press conferences at Friday Flat twice each day. Her recollection was that there were patches of ice scattered across much of the boardwalk. She clearly remembered the ramp leading down from the bobsled deck. One morning, she could not recall which day, she was walking with a colleague, Mike Donaldson from the Canberra newsroom, when she fell on the same ramp herself. In her own words, she just went for a sixer down the ramp. She caught onto Mr Donaldson and this broke her fall. Otherwise she would probably have landed very heavily on her backside. In the event, she was not hurt. She said that she had been wearing a pair of black leather shoes, which she thought had a standard leather sole. She was given very little notice to get ready to travel to Thredbo. She knew that she would be in the village rather than on the slopes, and it did not occur to her that she needed to take any special footwear or clothing. She had a general recollection of ice on the boardwalk most of the time she was there. The only time she slipped was on the ramp from the bobsled deck. Ms Barker was first asked to turn her mind to the events of August 1997 during the early part of 2003. She said that she nevertheless had a clear memory of patches of ice on the boardwalk and of a thin layer of ice on the ramp where she slipped. She though that she had probably been carrying an ABC bag with equipment at the time of her own fall. She continued to use the path for the rest of her time in Thredbo without any similar incident. She recalled being very careful each time she went down the ramp thereafter.

20. Mr Matt Peacock was by the time of the hearing based in London as European correspondent for the ABC, and he gave evidence by telephone. He swore an affidavit a few days before giving evidence. He had been sent to Thredbo in early August 1997 to cover the disaster. During his time there, he had cause to walk on the wooden walkway past the bobsled site to view the landslide area. He said that the walkway was in shadow and was very icy and slippery, which was compounded by the fact that this was not immediately visible. There was no handrail for much of the walkway, and where there was, it was difficult to hold. It was almost impossible to keep on one's feet and he recalled that on more than one occasion he nearly slipped on the walkway himself. He returned to Canberra the day the plaintiff arrived in Thredbo. He was asked to cast his mind back to 1997 earlier in 2003. He remembered that when he first heard that the plaintiff had fallen, he had though of the bobsled ramp as the likely place, as he had nearly fallen there himself a few times. The first time he walked down it, he nearly fell over, and the next time he walked down it very gingerly but even then nearly fell over. He remembered the need to exercise extreme caution as the ramp started to go down and he remembered it being extremely slippery for the whole of the time he was in Thredbo.

21. Ms Wendy Bilboe had worked with the plaintiff at the ABC in Wollongong and in Canberra, and by the time of the hearing was working with the plaintiff at the University of Canberra. She did not go to Thredbo at the time of the landslide, but she had visited Thredbo a year or two earlier with her children, who had had a ride on the bobsled. It was about Easter and there was no snow, though it had rained a little the previous night. Ms Bilboe purchased tickets for the bobsled at the ticket office, which she identified as the building on the deck at the foot of the bobsled. There was at least one person inside the ticket office selling tickets, and there were other persons helping customers on and off the bobsled capsules. On that occasion she and the children had approached the bobsled from the Valley Terminal, that is, in the same direction as the plaintiff on the day of her fall. Ms Bilboe visited Thredbo again in March 1998, and rode the bobsled herself. She approached it from the opposite direction, along the path and up the ramp. After her ride on the bobsled she slipped on the ramp. She was wearing Nike cross-trainers. It had been raining or at least sprinkling the night before. She was able to avoid falling. Her husband took her hand and walked her down the ramp. She thought the ramp was dry and that she slipped because it was steep. She only became aware that the plaintiff had fallen on the same ramp a matter of weeks before the hearing.

22. Mr James Woodford is a journalist with the Sydney Morning Herald. He came to Thredbo before dawn on the morning after the landslide, and spent about a week there. On the morning in question, he was walking behind the plaintiff, whom he had met once or twice before, but has not seen since. As she was going down the ramp, her feet went out from underneath her and she landed really hard on her back. She sat in shock for a few seconds. Mr Woodford went over to lend assistance. He helped her to stand up, and stayed with her for some little time. He remembered her walking off, obviously in pain. His recollection of the ramp was that it was in shade and had a frosty, wet feel about it. He remembered having to be careful every morning when walking along there. It was the kind of place where you could easily slip over if you weren't careful. It was a short, sharp ramp and somewhere to be especially careful.

23. Mr Woodford's recollection had been triggered only after he was contacted by a solicitor representing the defendant a matter of weeks before the hearing. He initially had no idea what the solicitor was talking about, but a vague recollection returned. It had seemed a minor incident at the time, but his memory came back and by the time he gave evidence he had a clear memory of the plaintiff taking a big fall and hurting herself and of helping her. The event had not seemed significant by comparison with the landslide and the retrieval of bodies from the site. His main memory was that the ramp was slippery.

Condition of the ramp - the defendant's witnesses

24. Next we come to the defendant's witnesses. Mr Werner Siegenthaler has worked for the defendant since 1976. He became mountain manager in charge of the ski lifts, snowmaking, slope grooming and ski patrol at Thredbo in 1990. He was also responsible for the operation of the bobsled. In 1997, he was in charge of 150 to 200 staff, out of a total of 700 to 800 staff employed by the defendant during winter. His evidence was that the walkway and ramp were constructed in December 1994, at the same time as the bobsled hut. The hut was used as a storage shed for the sleds. There was also a cash register and a drink machine. The public did not have access to the interior of the building. Mr Siegenthaler was living at Bimbadeen, the ski lodge which was crushed in the landslide. Fortuitously, he was at his principal home at Jindabyne on the night of the landslide. He returned to Thredbo the next morning. Each day he drove home to Jindabyne and returned in the morning to Thredbo, parking at the Friday Flat end of the village and walking to and from his office in the Valley Terminal. He took the walkway past the bobsled each morning between 5.30 and 6.00 am. His evidence was that on each morning, the walkway, including the ramp, was dry. He encountered no difficulty in the use of the ramp, and did not see any ice on the pathway on any morning. There was no snowmaking equipment or other source of water or moisture which might have sprayed onto the ramp. He though that the ramp would have been a little smoother in 1997 than today. He did not accept that even in 1997 it was hard and shiny. He had never heard of anyone being injured or falling on the ramp. He said that he had never been down the ramp himself when there was ice on it.

25. Mr Siegenthaler explained that a decision had been taken not to operate the bobsled during the rescue period, although some of the ski lifts were operating. He said that for the entire week following the landslide until the last body was recovered, the weather was clear and sunny. In cross-examination, he confirmed that he had not made any records about the state of the walkway during the landslide recovery process, and that he had had no reason to recollect any details of what he had been doing during that week in relation to the walkway until he found out about the plaintiff's accident, probably a year or two later. He conceded that he had not slipped on the walkway himself, and had no particular reason to remember its condition. He had made a statement for the purposes of the case in November 2001, which he had used to refresh his memory.

26. Mr Peter Tomasi had worked for the defendant for about twenty years, and in 1997 was lifts manager. He oversaw the operation of the bobsled, which was constructed at the end of 1994. He had been site supervisor for the construction of the stainless steel track and the lift for the bobsled but not for the bobsled building and deck, which he said came under the jurisdiction of Mr Bill Wells, a builder. Mr Tomasi was at home in Jindabyne at the time of the landslide and came to Thredbo immediately. Thereafter, he drove to work at Thredbo each morning, usually between 6.00 and 6.30 am. From time to time during the first week he used the walkway past the bobsled, sometimes in the morning and sometimes in the afternoon. He said that its condition was dry and that it was used by a lot of people during that week. North of the bobsled, at the edge of Woodridge, there was a main focal point for journalists, television crews and spectators to view the landslide site. During the week he did not recall seeing any ice or frost on the walkway. He could not be certain that he had walked along the walkway every day during that week, or on any particular day. He did not ever slip on the track himself. He was first asked to recall its condition during the week after the landslide three years or more later.

27. Mr David Kuhn was ski patrol manager in 1997, having worked for the defendant since 1983. He was in Thredbo during the week following the landslide, and he used the bobsled walkway to get from home to work and back. He generally walked along it at about 5.45 am each day. During the days following the landslide, the weather was dry and cool. The surface of the walkway and ramp to his recollection would have been dry. He did not recall any ice or moisture until the last day of the recovery operation, about 6 or 7 August. He was unaware of any other accidents on the ramp at any time.

28. Ms Jacquelin Peters had worked for the defendant since 1993, and by the time of the hearing was assistant lifts manager. She was not in Thredbo at the time of the landslide or during the following week, and could not comment on conditions during that time. She had used the bobsled walkway in summer and winter since it was built in 1994, and had never seen anyone fall on the ramp. She had never had any problems in negotiating the ramp. If it was slippery, she would tread carefully and make sure her footing was stable before each step, and would use the handrail for balance. She normally wore hiking boots with rubber soles with a criss-cross tread. She found that these were sturdy and gave good traction on all sorts of terrain, making them very good in the alpine environment.

29. Mr Andrew Cox was employed by the defendant from 1991 until 2002. He is a qualified civil engineer and a former army officer. He lived at Woodridge between 1993 and 1996. He was property and development manager for the defendant in 1994, when the bobsled and walkway were installed. He subsequently became chief executive of the company. He confirmed the involvement of Mr Bill Wells as the construction supervisor of the timber decking, storage hut and ticket office, timber walkway and ramp associated with the installation of the bobsled. Mr Cox had used the bobsled path daily to get to and from work. He had used it during rain and after snow, and in freezing conditions. He had himself once slipped and fallen on a section of path between the tennis courts and the bobsled. There had been times when he had found the ramp to be slippery, for example, after snow or rain at low temperatures. He travelled from Sydney to Thredbo immediately after the landslide, arriving at 6.00 am the next morning. He stayed in an apartment at Woodridge, and worked from an office in the Valley Terminal building. He used the bobsled path daily after the landslide, usually a little before 6.00 am. His recollection was that the last body was recovered from the site early on 7 August, and that a few hours later it began raining and then snowing, until the landslide site was blanketed in snow. He could recall no mornings when there was frost during the period, and virtually no wind in the early days. His evidence was that on the morning of 5 August, he walked to work along the path. There was no ice or frost on the ramp or the bobsled deck. He heard no reports of anyone slipping or injuring themselves on the path.

30. Ms Maureen Roberts has been employed by the defendant for fourteen years as personnel manager, with general responsibility for staff matters. In 1997 she lived in Jindabyne, and during the week following the landslide she parked at the Woodridge end of the village and walked to work along the bobsled path, generally between 7.00 and 8.30 am, returning in the evening. Her recollection was that she wore her normal shoes, and that the path was in normal condition, with no snow.

31. Sergeant Kevin Daley of the New South Wales Police Media Unit arrived in Thredbo on the morning of 1 August 1997. At 11.00 or 11.30 am on that morning, he set up a media conference at the Friday Flat media centre. The weather was fine and sunny. Sergeant Daley recalled at one point moving onto the balcony of the lodge where he was staying, taking off his police jacket, and being comfortable in a short-sleeved police shirt, although it is not clear which day or what time of day this was. He walked twice a day along the road on the southern side of the river towards Friday Flat. He had no recollection of seeing any ice or frost in that area. He did not use the bobsled path. The weather remained clear and sunny until the following Wednesday afternoon, which would have been 6 August (the day after the plaintiff's fall). On the Wednesday afternoon it became overcast and on the next day torrential rain set in. Sergeant Daley referred to the Wednesday afternoon as 7 August and Thursday as 8 August; in fact Thursday was 7 August and Friday 8 August so there is some confusion about the precise days and dates, but at all events it is clear that the weather remained fine until a couple of days after the plaintiff's fall. Sergeant Daley recalled that it was extremely cold at night. His understanding was that temperatures were as low as -10°C. He was first asked to recall the events of August 1997 a few months before the hearing.

32. Mr Dane Goodwin is a New South Wales Ambulance Officer. He went to Thredbo on 1 August 1997 as media representative for the NSW Ambulance Service, and remained there until 7 August. He had been to the snow a few times before, but had never lived in an alpine area. His recollection was that it was very cold, with temperatures down to -7°C overnight, and that the days were mostly sunny but cold. He confirmed that it did not snow until the last body was retrieved at about 3.00 or 4.00 am on 7 August. He did not recall the torrential rain referred to by Sergeant Daley, but he may have left Thredbo before the rain began. His job was to prepare media briefings and to attend media conferences twice each day. He used the bobsled pathway to get to the media centre. He would generally walk from the Valley Terminal to the media centre a little after 7.00 am. He evidence was that he never felt threatened on the walkway, and walked along it as he would any other walkway. It seemed to be in good condition. He never saw any ice or snow or frost on it. He used it probably five times a day whilst he was there, and numerous other people were using it at the same time. He never saw anyone slip or fall. He never used a handrail. He wore a soft-sided all weather ugg-type boot, with a soft rubber sole, slightly rippled. The boots had been issued to him by a skiwear company on arrival at Thredbo. He usually had a telephone in one hand and papers in the other, and just walked normally along the walkway.

33. Mr Goodwin was first asked to recollect these events almost six years later, a few weeks before the hearing. He had numerous records including videotapes of his interviews but no records relating to the condition of the walkway. He would not concede that there was any possibility that he might be mistaken about ice or snow on the walkway. His memory was that the timber boardwalk continued all the way to Friday Flat and he would not concede that this might possibly be wrong. He had not been back to the site since 1997. He agreed that the ramp was moderately steep.

34. A statement was tendered in the defendant's case by Dr Stephen Breathour, who conducted a general practice at Thredbo in 1997. He had worked in Thredbo every winter for 20 years and lived there for some time. He had a contract, presumably with the defendant, to open the surgery during the skiing season and for all school holidays, and usually kept the surgery open for about 40 weeks in the year. During the landslide he had the surgery fully staffed with another doctor on alternate days and a nurse and a radiographer. The surgery was a base for doctors flown in for the rescue effort, and its normal function was needed for the relatively small number of people skiing during the week. Dr Breathour lives at Woodridge, near the end of the walkway, and his surgery is at the Valley Terminal end. Although he could not remember specific days that he walked on it, he used the walkway constantly during the rescue operation. He recalls the weather as generally fine, and this is confirmed by his surgery records for the period 4 August to 7 August. There was no ice or snow around the village, and definitely no ice or snow build-up on the walkway, although there may have been frosts on some days. He estimated that up to 100 staff would have used it before 8.30 am on their way to work. He recalled a child in summer falling on the walkway after tripping on a plank with a raised edge, but no other incident of any person falling or suffering injury.

The footwear issue

35. A significant issue arose during the hearing as to the plaintiff's footwear at the time of her fall. In response to a request to describe the footwear worn by the plaintiff at the time she slipped, her solicitors replied in April 2001 "flat walking boots". They were asked for more detail, including photographs and an opportunity to inspect the boots. They responded as follows:

Flat, resin-sole, elastic sided Diana Ferrari shoes. Unfortunately, our client has subsequently got rid of these shoes.

The following year, the defendant's solicitors took the matter further, and were informed in September 2002 that the plaintiff was wearing boots which were flat with a slight heel moulded to the sole, with a basic tread pattern including a series of lines running across the sole to aid grip. The brand was Diana Ferrari and the boots were about three months old.

36. On 2 December 2002, the plaintiff's solicitors wrote to the defendant's solicitors advising that the plaintiff had been able to locate what she believed were the boots she had been wearing on the day of the accident. They provided the boots for inspection. The boots produced were Diana Ferrari brand brown suede with laces and a synthetic sole with a patterned tread. These were shown to the plaintiff during cross-examination and she identified them as looking like the shoes that she recollected she had been wearing at the time of her fall. She conceded that there was a slim chance that they might not have been. She had seen them under her mother's bed in late 2002. Her mother had taken them out of a garbage bag full of shoes to be given away and the plaintiff was pretty sure that those were the shoes she had been wearing. She said that she could not remember exactly what she was wearing on the day, but knew she was wearing flat walking shoes, and these were the ones she thought she was wearing at the time. She had had several pairs of shoes in her wardrobe. He recollection was that she had bought the shoes on sale at a shoe shop in Wollongong some time before leaving for Europe in 1996.

37. The plaintiff was cross-examined about the particulars previously provided in which the boots had been described as flat resin-soled, elastic sided, Diana Ferrari boots. She remembered that there had been a time when she thought that she might have been wearing such boots. She remembered borrowing a pair of her sister's elastic-sided brown boots, though she thought this had been some time after coming back from Thredbo. She was a bit vague about this and suspected that she had confused the description. The elastic-sided boots were Diana Ferrari as well. The plaintiff had been house-sitting for a friend at the time of the landslide, and had packed what she had. She conceded that she had been confused about what boots she had been wearing at the time. When the plaintiff had seen the boots at her mother's home in Wollongong during 2002, she recognised them as having been her own and this sparked a memory that they were probably the ones she had worn at Thredbo. They had never been a particularly good fit, and her mother had a slightly smaller foot than her own. She was asked whether she might have bought the boots in 1997, and not in Wollongong in 1996. She thought not, and recalled seeing a photograph of herself wearing the boots in Europe in 1996. She was shown a new pair of Diana Ferrari black elastic-sided boots in the same size, with a synthetic sole with fine furrow lines perpendicular to the direction of travel. She eventually agreed that it was possible that she was wearing her sister's boots of a similar design to the elastic-sided boots shown to her. It was suggested to her that in her anxiety to establish that the fall at Thredbo had been absolutely no fault of hers, she had found and produced a pair of shoes with a good non-slip tread. She denied this.

38. The defendant subsequently tendered a statement by Mr Charles Cutajar, dated 16 July 2003. Mr Cutajar is the operations manager of Diana Ferrari shoes at Richmond in Victoria, and was previously manufacturing manager for the same company. He had examined the suede lace-up boots. He said that the boots had been manufactured as a special one-off production boot in order to use up surplus suede leather in stock. Prior to this, a similar boot had been manufactured, but made from shiny leather rather than suede. The special production boots, called Antelope Nubuck, went on sale in July or August 1997 and were sold only from the three Diana Ferrari shops which then operated in Victoria, located in Geelong, Brooklyn and Fairfield. They were not available for purchase from any other outlet, or at any time prior to July 1997. Mr Cutajar's statement was admitted without objection, and he was not required for cross-examination.

The meteorological evidence

39. Expert meteorological evidence was called by both parties. The plaintiff called Mr Steven Lellyett, deputy regional director for New South Wales of the Commonwealth Bureau of Meteorology. Mr Lellyett has an honours degree from Monash University majoring in meteorology and a post-graduate diploma in meteorology. He worked as a weather forecaster in his early years, and is a former head of the climate and consultative services section of the Bureau. Through Mr Lellyett, the plaintiff tendered records of meteorological observations taken at two weather stations. Thredbo Village weather station is located about 30 metres north of the Snowgums chairlift terminal, that is, a little north of the Village Terminal building and generally of the built-up area of the village, and on the northern side of the river. Recordings at this station are taken by an observer at 9.00 am and 3.00 pm each day. They include some observations recorded by instrument and some visual observations. Also in evidence was a printout of data recorded automatically at a station located some 500 metres up the mountain, north of the village.

40. The records establish that frost was observed at the village site on 3 August 1997 at 9.00 am, but no frost was seen on the three subsequent days. There was no rain recorded between 9.00 am on 3 August and 9.00 am on 6 August, though cloud was increasing by the end of the period. The minimum temperature recorded automatically in the village each day was about -7.5° C and the maximum about 9° C. The instruments measured relative humidity (71% at 9.00 am on 5 August 1997). Mr Lellyett's evidence was that it was not scientifically viable to use the conditions at the weather stations as a reliable indicator of whether or not frost might have occurred at the observation site at Thredbo Village. He explained that there could be variations over small distances, affected by, for example, localised surface depressions, the presence of shadow and sunshine, and proximity to water such as a river or creek. His view was that having regard to the readings, there was a small or slim chance that there might have been frost in the vicinity of Thredbo Village at 9.00 am on 5 August 1997: it was unlikely but he could not discount the possibility.

41. The defendant called Mr Russel Morison, a senior project research scientist at the Centre for Environmental Modelling and Prediction within the School of Mathematics at the University of New South Wales. Mr Morison had previously been employed by the Bureau of Meteorology, and he was qualified as an expert witness jointly with Professor Lance Leslie through Unisearch, an expert witness facility coordinated by that University. Mr Morison's evidence was that there was no natural source of moisture consistent with the formation of ice on the ramp. He conceded that if there had been frost on the ramp, the activity of people walking on it could have broken the frost up, and turned it into a slippery surface similar to ice - perhaps not as slippery as ice but close to it. He said that ice was transparent, because of its lack of air content, and was not easy to see on a dark surface. He agreed that if there was frost that had been walked upon at quite cold temperatures one might end up with a patina of an ice-like substance which would be slippery to walk on, particularly on a steeper slope. Despite all of this, Mr Morison was of the view that, having regard to the meteorological readings, there was virtually no chance of ice or frost on the ramp between 8.00 am and 9.00 am on 5 August 1997. He later revised this opinion to express it in terms that the likelihood of frost forming on the ramp at that time was fairly low. Influence by the presence of the river nearby was a possibility but no more. His concluded opinion, at the end of his re-examination, was that there was absolutely no chance of ice and virtually no chance of frost having been there as a result of the natural conditions.

Expert evidence - ski resort management

42. Mr John Gow was called as an expert witness in the defendant's case. Mr Gow is a consultant to the ski industry. For twenty years up to 1997, he was successively President and Chief Executive Officer of two major Canadian ski resorts, one at Banff, Alberta and the other at Vernon, British Columbia, with responsibility for the design, construction, maintenance and operation of all resort facilities. He is a qualified ski instructor and mountain guide, and has worked in the skiing industry since 1964. He is presently a director of a major resort planning company based at Whistler, British Columbia. He has served as an adviser to the British Columbia Environmental Assessment Review Agency on matters related to approval of snow resorts. In 1999 he was retained by the major ski resorts in Australia to conduct reviews of their mountain safety practices and to provide seminars on safety and risk management. Since 1997, he has been engaged as a consultant by the defendant and its insurers and solicitors from time to time in the context of litigation.

43. Mr Gow was engaged by the solicitors for the defendant in March 2002 to provide his opinion as an expert on a number of issues arising from the present action. His opinion was that given the previous day's temperature, the clear sky, the temperature at 9.00 am, and shade conditions at the ramp, it was likely that there was frost on the walkway and ramp at the time of the plaintiff's fall. His understanding was that the purpose of the walkway and ramp was to provide access to and from the bobsled, and that the bobsled operated only in summer, when frost would not be encountered. He thus regarded the use of the path during the aftermath of the landslide at the beginning of August as out of the ordinary. He expressed the opinion that the ramp and its gradient were proper, adequate and functional for the purposes of summer pedestrian use. He thought that the ramp was adequate for pedestrians wearing reasonable footwear and using the handrails properly for stability. The ramp and its surface were within normal and accepted standards for outdoor walkways designed for summer pedestrian use at resorts in Australia and internationally. The circumstances at Thredbo immediately after the landslide were extraordinary, and the plaintiff ought to have been aware of this, and ought to have proceeded with caution and care for her own safety.

44. Mr Gow thought that pedestrians should be expected to exercise a greater degree of individual care in a winter mountain environment, where walkways, slopes and ramps might be routinely encountered in a variety of conditions including frost on the surface. In Mr Gow's opinion, it ought to be obvious to pedestrians in such winter conditions that they might encounter frost, ice or snow, and they should maintain a lookout for such conditions and proceed with appropriate care and caution.

45. He said that it was not the usual or accepted practice for winter resorts in Australia or internationally to provide advice to visitors to equip themselves with adequate winter clothing or footwear, or to use such clothing or footwear while walking around the resort. He was critical of the ABC and the plaintiff for not realising that appropriate winter clothing and footwear would be necessary. He also thought that the plaintiff's shoulder kit bag was inadequate and inappropriate for use in a winter mountain environment. She should have been provided with a backpack which would have left both her hands free. If she had been, she would have been able to use both hands on the handrails of the ramp, and the accident would probably have been avoided.

46. Mr Gow went to Thredbo in April 2003 to carry out a physical inspection and to review his report in the light of corrected information. He was informed that the bobsled operated during winter in dry conditions when its track was clear of snow. He was also told that the walkway and ramp were used to provide regular pedestrian access between Woodridge and the Valley Terminal. He said that neither of these pieces of information changed his overall view of the matter, or altered the opinions and conclusions set out in his original report. He observed a number of pedestrians using the ramp, some using the handrails and others not. His opinion was that the ramp was of a slope similar to those found in pedestrian areas at snow resorts throughout the world, all of which would be routinely covered in snow or ice.

47. He conceded in cross-examination that he was unaware of the NSW National Parks and Wildlife Service Building Code. He was unable to comment on the coefficient of friction of an icy timber walkway with a slope of 1:4 and would defer to an engineer on such an issue. He was unaware of any Australian standard about handrails, and disagreed that a largely circular handrail would be preferable from a safety perspective to a piece of wood roughly 19 centimetres by 5 centimetres. He regarded the timber handrail as highly effective.

The engineering evidence

48. Both parties called expert engineering evidence. Mr Allan Fozzard is a consulting engineer in private practice and a Fellow of the Institution of Engineers, Australia. He qualified as an engineer at the end of 1964. He was employed by a succession of engineering firms until 1981, when he started his own practice. Since then he has been responsible for some thousands of building projects. He has acted as an expert witness on numerous occasions. He prepared three reports for the plaintiff's solicitors, and gave oral evidence. He conducted a site inspection in November 2000. He measured the length of the ramp as 4310mm, its height as 1125mm, and its slope at 15.13 degrees. The railing was 1000mm above the deck and 1040mm above the surface of the ramp. The rail was 190mm wide and 50mm deep, and was supported by vertical timber posts, 50mm by 50mm, 1880mm apart. There was provision for five stainless steel cables spaced 130mm apart below the railing though some of these were missing at the time of the inspection.

49. The surface of the ramp consisted of treated timber planks 100mm by 50mm, butted together. The surface appeared to have been dressed when new, but was highly polished at the time of inspection. Mr Fozzard's camera, placed on the ramp, slid down the slope, accelerating. The inspection took place between 12.00 noon and 1.00 pm on a dry and sunny day.

50. Mr Fozzard measured the slope at approximately 15 degrees or, in traditional terminology, 1 in 3.7. He regarded this as non-compliant with the Building Code of Australia, which on his interpretation required the ramp to have a gradient not steeper than 1 in 8. The Code, as he read it, required a ramp to comply with Australian Standard 1428.1. AS 1428.1 provided that the maximum gradient of a ramp exceeding 1520mm in length was to be 1 in 14. The Code also contained a specific provision applying to any building constructed in an alpine area, which required an external ramp serving as an exit to have a gradient not steeper than 1 in 12. He expressed the opinion that the rationale for the special provisions in the Code about alpine areas was that in such areas icy and slippery conditions could be expected, making the non-alpine 1 in 8 maximum unsafe. In any event, the slope of the ramp, 1 in 3.7, violated all of the stated regulatory criteria.

51. Mr Fozzard next dealt with the requirements for a balustrade or handrail. AS 1428.1 required ramps to be provided with handrails. The top rail did not qualify as a handrail. It was at most a balustrade, though it was more than 1000mm above the ramp. Compliance with the Code would require that a separate rail, with a maximum diameter of 50mm, be provided in addition to the balustrade at a height between 864mm and 1000mm. In his opinion, pedestrians need to be able to obtain a grip on a solid, near-circular rail. He explained that the kind of handrail required was illustrated in Figure 1 and Figure 9 of AS 1428.1.

52. Mr Fozzard next dealt with the surface of the walkway and ramp. Both the Code and AS 1428.1, on his interpretation, required that the surfaces of walkways and ramps have a non-slip finish. A surface coefficient of friction of 0.4 was specified for horizontal surfaces. Sloping surfaces required an increased coefficient of friction. A slope as steep as the ramp in question would require a coefficient of friction exceeding 0.75. He said that leather on timber in clean and dry conditions has a coefficient of friction in the range 0.3 to 0.5. The surface of the ramp and deck only just provided a coefficient of 0.4, adequate for the level deck but totally inadequate for the ramp.

53. He said that simply walking up and down the ramp in the best possible conditions, on the day of his inspection, required some level of care. Even in the best of conditions he regarded the slope of the ramp as unsatisfactory for a public pathway providing access to and from the deck of the bobsled facility. Its risk was exacerbated by its smooth surface. He was also critical of the abrupt change of slope from the horizontal deck to the ramp, and said that a transition would have been preferable. There was no alternative access. He noted that another Australian Standard, AS 1657, directed towards industrial and maintenance applications for walkways and platforms, rather than for public access, would permit a ramp with a slope of 1 to 3.7, but the ramp would need to be provided with a cleated or grated and slip-resistant walkway surface. Thus, he said, the bobsled ramp would not even meet the less stringent requirements of that code.

54. In April 2002, Mr Fozzard was provided with copies of the architectural plans dated June 1994 which had accompanied the development application for the construction of the bobsled and the building and deck, and also with engineering structural plans. These did not cause him to change his previous opinion in any way. He noted that the ramp did not comply with the plans or any particular designs. The approval stamp affixed to each of the plans by the Kosciusko District Building Surveyor of what is now the NSW National Parks and Wildlife Service called for compliance with the relevant building code and Australian Standards current at the time of approval. Mr Fozzard also expressed the opinion that the construction of the ramp had been governed by the Kosciusko Interim Building Code 1994, the bobsled having being a place of entertainment. His opinion was that the external deck around the bobsled building was part of the building and an appurtenance to it.

55. In oral evidence, Mr Fozzard explained that the height of the bobsled building and ramp was 1300 metres above sea level, placing it within an alpine area (1200 metres or above, and likely to be subject to significant snowfalls) as defined in the Building Code of Australia. Referred to the classification of buildings into ten classes in Part A3 of the Code, he placed the bobsled structure and attached ramp into class 6 (a shop or other building for the sale of goods by retail or the supply of services direct to the public).

56. Mr Fozzard then referred to the Interim NSW National Parks and Wildlife Service Building Code, dated August 1994, applicable to building activities within national parks, including the Kosciusko National Park. The Interim Code requires such building activities to conform with, inter alia, the NPWS Building Code and the Building Code of Australia, including the NSW variations to the latter. The Interim Code requires that all work must comply with the development and building approval conditions and the approved plans and specifications (clause 2.13c). Clause 4.4.1 of the Interim Code states that the aim of the design standards is to ensure that all activities within the park are designed, inter alia, to ensure the wellbeing and physical safety of the public. Clause 4.4.7 provides that all buildings including associated facilities must be conveniently accessible by the disabled, and that the requirements of the Building Code of Australia and AS 1428 are the minimum acceptable standards. External works should be designed to ensure that people with disabilities are not unreasonably disadvantaged. Mr Fozzard was of the opinion that the Interim Code, including the provision as to disabled access, applied to the bobsled building, deck and ramp.

57. Mr Fozzard's evidence was that his original understanding was that the minimum gradient required for the ramp was 1 in 12, as specified in Part G4 of the Building Code of Australia, but having considered the Interim NPWS Building Code, he had changed his opinion and now was of the view that the minimum permitted gradient was 1 in 14, as provided by AS 1428. He noted that the original architectural plans showed a ramp which appeared to be some 30 metres long, but in the event a ramp was built which was much shorter and steeper.

58. Mr Fozzard then referred to clause G 4.7 of the Building Code of Australia, dealing with construction in alpine areas. The clause is as follows:

G 4.7 External Trafficable Structures

External stairways, ramps, access bridges or other trafficable structures must have-

(a) a floor surface that consists of steel mesh or other suitable material if it is used as a means of egress; and

(b) any required balustrade constructed so that its sides are not less than 75% open.

Mr Fozzard was of the view that the timber surface of the ramp was not a suitable material, though it would have been satisfactory if the ramp had been constructed with a slope of 1 in 14 or greater.

59. Mr Fozzard was asked to estimate the cost in 1994 of constructing a ramp with a slope of 1 in 14 and handrails as required by AS 1428. He was unable to provide an estimate in 1994 dollars but said that the cost today would be less that $5,000.

60. In cross-examination, Mr Fozzard said that his wife had herself slipped on the ramp on the day of their inspection. She was wearing shoes with polyurethane soles. It was put to him that the shoes were unsuitable for walking in an alpine environment. He answered that they were not walking in an alpine environment. He agreed that the 1 in 14 gradient was essentially set for the disabled. He accepted that there were gradients on some pathways in national parks that do not comply with the standards. He explained that there were five different types of paths, with different requirements applying to each. He made the point that the ramp in question is effectively attached to the bobsled building and is therefore governed by the rules that apply to the building. The deck was the base of the building, and was a platform constructed as part of a total facility, in the same way that a veranda forms part of a house. He was challenged on his opinion that the ramp formed an egress from the building. It was put to him that one did not have to use the ramp to get to the building. His response was that it was the only way to get to the building if coming from the north.

61. Mr Fozzard was shown the two pairs of boots which had been tendered during the plaintiff's evidence. He thought that the soles of the suede boots could be regarded as rubber, so as to have a satisfactory coefficient of friction on the ramp in dry conditions. He was less sure of the grooved resin soles of the elastic-sided boots. He thought that they might qualify when new but would be likely to become unsuitable once the soles became worn.

62. It was put to Mr Fozzard that there was nothing about the visual appearance of the ramp which made it appear dangerous. He disagreed with this. It was obvious to him from the photographs, and from his visual inspection, that the ramp was dangerously steep.

63. It was also put to him that the requirements about a ramp serving as an exit from a building related only to an exit required as a fire escape. He disagreed with this, and said that the requirements were of general application.

64. The defendant called Mr Michael Cantali, consulting engineer, to give expert evidence. Mr Cantali has a bachelor's degree in engineering and a master's degree in project management. He is a Member of the Institution of Engineers, Australia and also a licensed builder. He graduated in engineering in 1970. In recent years, he has worked as regional engineer for the Clay Brick and Paver Institute. Since 1992, he has been in private practice as a consulting engineer, with a particular interest in pavement design and construction. He has been engaged in other matters as an expert witness on pavement design. Mr Cantali visited the site at Thredbo at about 5.15 pm on Saturday 4 August 2001, and again at about 8.15 on the following morning. It was very overcast and rained on that morning. He noted the width of the ramp at about 1.33 metres between handrails. During his inspection, the bobsled was not operating. A number of pedestrians used the walkway and ramp in both directions. He did not see any pedestrian show signs of any difficulty in negotiating the ramp up or down.

65. Mr Cantali's opinion was that the ramp did not form part of the building, but was rather an integral part of the walkway. His understanding was that the purpose of the building was to store trolleys. He thought that the allegation on behalf of the plaintiff that the surface of the ramp was icy at 9.00 on 5 August 1997 was consistent with the conditions he observed. He expressed the view that flat shoes, resin-soled or otherwise, were not suitable for icy conditions. Spiked or hard-treaded shoes which physically key into the icy surface are recommended; otherwise the sole will simply aquaplane over the surface, in a similar manner to a smooth car tyre on a wet or icy road. He said that icy surfaces have a very low to negligible coefficient of friction with any flat-soled shoe. It is virtually impossible to get a good grip on an icy surface without keying into it.

66. Mr Cantali did not regard the ramp as an exit from the bobsled building, but rather a part of the walkway. He took the view that AS 1428.1 applies to the design of new buildings and has no application to alpine walkways. He also thought that the bobsled building was not a building in the true sense, but rather a well-built store for trolleys. It had no provision for accommodating people in the normal sense of a building. He also noted that there were no exits from the bobsled building which led directly to the ramp. Taken to the ten classifications of buildings set out in Part A3 of the Building Code of Australia, Mr Cantali placed the bobsled building in class 10a (a non-habitable outbuilding or structure - an open garage, private garage, shed, or the like).

67. Mr Cantali thought that the balustrades were quite safe as handrails, both as to load and as to ease of gripping. He regarded the timber surface of the ramp as good for traction, drawing attention to the coarse grain of the timber, and the fact that the slats had been laid transverse to the direction of travel. Mr Cantali's opinion was that the ramp was quite safe, quite acceptable, and compliant with all legal requirements at the time of its construction and at the time of the hearing. The dirt pathway which it replaced would have been much more hazardous.

68. Mr Cantali had been able to locate a publication of the NSW National Parks and Wildlife Service, Walking Track Construction Guidelines. The publication is undated. It contains references to some earlier publications, the latest being 1987, but there is no other hint as to when the document was first published. Relevantly, it includes guidelines for the design of boardwalks. The guidelines refer to a classification of walking tracks in national parks into three categories: walk, track and route. Routes are unconstructed and are intended for well-equipped and experienced walkers. They should be to sturdy-boot standard. Tracks are well defined and suitable for people of average fitness with some experience. They should be to boot standard. A walk is a well-constructed and surfaced path designed for high use by persons of all ages and physical condition, constructed to shoe standard; easy grades suitable for disabled use may be required, with bridges or boardwalks where necessary. The path leading past the bobsled building is clearly a walk rather than a track or a route. The guidelines provide for a walk to have an 8% preferred maximum gradient, with 5% for disabled use with a maximum length of 9 metres. The guidelines refer to Platform Design Code AS 1657, and provide that where a boardwalk is more than 300mm above adjacent ground, a handrail should be provided at 900mm, and that if the slope exceeds 1 in 8, a cleated surface should be provided for additional slip resistance. A boardwalk should be designed so as to comply where possible with the Disabled Access Code AS 1428, and to do so, should have a maximum slope of 1 in 20, or 1 in 12 for a maximum length of 9 metres between horizontal landings. Handrails should include grips of 40 to 50mm diameter. An illustration shows a circular handrail with the comment that the width of its support should not interfere with the sliding of the hand or firm clasp.

69. Mr Cantali was extensively cross-examined. He conceded that he was aware that the bobsled building was used as the ticket office for the bobsled, but did not see what relevance that fact had to his opinion. He was unsure whether he had been aware at the time he wrote his report that the building was used as a ticket office, rather than solely as a store for trolleys. He disagreed that this might bring the building within Class 6 in Part A3 of the Building Code of Australia. He reasoned that the purpose stated on the plans which accompanied the application for approval of the building was that of storage. Its primary purpose was the storage of goods. Further, members of the public purchasing tickets did not enter the building, but rather stood outside the building and purchased their tickets from a staff member on the other side of a ticket window. Mr Cantali agreed that a freestanding kiosk for the sale of (for example) ice creams to members of the public would be a Class 6 building because its purpose would be to provide that service. The bobsled building, however, was predominantly for storage rather than sales.

70. Mr Cantali acknowledged that at the time of his report, he had been unaware of the Interim NSW NPWS Building Code which came into effect in August 1994. Referred to the requirement in clause 4.4.7 that all buildings including associated facilities must be conveniently accessible by the disabled, he disagreed that the ramp was an "associated facility" to the bobsled building.

71. Mr Cantali's attention was also directed to a note to clause 2 of AS 1428.1. To assist in understanding this, I should explain that clause 1 of AS 1428.1 states that the standard specifies minimum design requirements for elements of buildings and related facilities to permit access by people with disabilities. Particular attention is to be given to accessways, circulation spaces and fitments. Clause 2 states that the requirements specified in the standard are intended to permit general use of buildings and facilities by people with disabilities acting independently, or, where a person's usual method of operation is with an assistant, in the company of that assistant. Compliance with the standard will, in general, satisfy the requirements of the Building Code of Australia in terms of the provision of access to buildings for people with disabilities.

72. The note to which Mr Cantali's attention was directed by counsel for the plaintiff stated that although the standard was intended to be used for the provision of access to buildings, in the absence of specific information, appropriate clauses could well be applied to external locations such as walkways and landscaped areas. His response was a little unclear, but he appeared to be expressing the view that the note, and perhaps AS 1428.1 in its entirety, was intended to apply only to buildings and walkways specifically designed and intended for use by the disabled. Consistently with this, he appeared to interpret the provisions about ramps in clause 5.3 of AS 1428.1, including the requirement that ramps be provided with circular handrails, as applicable solely to ramps specifically intended for the disabled.

73. Mr Cantali's attention was directed to Part G4 of the Building Code of Australia, dealing with construction in alpine areas. Part G4 is expressed to apply to any building constructed in an alpine area and to overrule other provisions of the code. It provides that an external ramp serving as an exit must have a gradient not steeper than 1 in 12: clause G 4.5. Mr Cantali agreed that the structure was built in an alpine area, but was reluctant to accept that the ramp in question was an external ramp. He ultimately conceded that it was, but said that it was not an exit for the purposes of the clause. His opinion was that there was no regulatory requirement placing any limit on its gradient, as long as it was safe for its intended purpose. He was asked his opinion as to what maximum gradient would be safe for its purpose. He thought that 1 in 3 might be acceptable and said that he would have no hesitation in putting up the ramp as it was at the time of his inspection (1 in 3.7).

74. Mr Cantali was unfamiliar with the Walking Track Construction Guidelines and had not used the publication. He was asked about the maximum recommended gradients for walking tracks. His understanding was that the guidelines applied to dirt tracks rather than paved tracks, and were concerned with issues such as the difficulty of pushing a wheelchair in soft soil. He was asked to assume that he had been involved in the design and construction of the ramp, and that he had knowledge that it would be accessed by members of the public, which might include people with a disability. On that assumption, he was asked what slope he would adopt for the ramp. His answer was that on the hypothesis put to him, he would ensure that the ramp complied with AS 1428.1 (maximum slope 1 in 20). He would regard himself as contractually bound to do so.

75. Re-examined on the handrail issue, Mr Cantali expressed the view that a circular metal handrail would be much less satisfactory in alpine conditions that the timber balustrade in place. In frost or damp, he thought a metal handrail would be likely to become slippery and would provide inadequate traction. It would make a fall more likely rather than less likely.

Damages - the plaintiff's evidence

76. The plaintiff was born at Wollongong in New South Wales on 22 October 1970 and is 33 years of age. She completed Year 12 there in 1988. Having won a competition for academic achievement and public speaking, she went on an exchange programme to Germany for several months. On her return, she successfully applied for a position as a cadet journalist at a Wollongong radio station.

77. A cadetship as a journalist usually lasted four years, but it was possible to complete it more quickly. In the plaintiff's case, after twelve months, she was graded as a D-grade journalist. In 1989, during her cadetship, she won an Australian Journalists Association award, being named cadet of the year, competing against cadets in television and newspapers as well as radio. In December 1989 she married. In 1990, she enrolled in a Bachelor of Arts course at Wollongong University which she continued part-time until about 1994, when she still had a few subjects to complete the degree. In January 1991, she changed jobs, and commenced with the Australian Broadcasting Corporation as a reporter. By this time she was a C grade journalist. The position was based at the Wollongong regional office of the ABC. In 1992, she was promoted to news editor for the Illawarra region, with responsibility for three journalists and several casual reporters. Her duties by this time included writing, producing, editing and presenting news bulletins. She was also responsible for rostering and supervising the work of those below her.

78. In 1994, she moved to Sydney with ABC television documentaries. She worked on camera as a reporter with a programme called Living in the 90s for about 12 months, and then returned to radio, working in the 2BL newsroom in Sydney. In 1995, she went back to television as a reporter and presenter with a pay-television joint venture. Through no fault of the plaintiff, the joint venture was unsuccessful, and in October 1995 she returned to ABC radio as a current affairs reporter based in Sydney, working on AM, PM and The World Today. During 1996 she was nominated for a Walkley award, for a series of investigative reports on child abuse in institutional care. In the same year she won a human rights award for radio.

79. In January 1997, she was asked by Ms Fran Kelly, then bureau chief for ABC radio current affairs in Canberra, to fill a vacancy as a senior political correspondent at the bureau. By this time the plaintiff had proceeded beyond her previous grade C level, though her precise grading is unclear because the ABC had by then adopted a different classification system.

80. The Canberra job was based at Parliament House. It was a position involving long hours and requiring extraordinary stamina. During parliamentary sitting weeks the plaintiff described the pace as frenetic, running from one press conference or interview to another, and meeting inflexible deadlines with unforgiving executive producers.

81. This was the position in which the plaintiff was employed at the time of the Thredbo landslide. She was asked to travel to Thredbo to relieve colleagues who had been down there for some days. She travelled to Thredbo on the afternoon of Monday 4 August 1997, and stayed at the Thredbo Alpine Hotel, which the ABC was using as a base.

82. The circumstances of the plaintiff's fall on the ramp on the walkway on the morning of 5 August have already been described. Immediately after her fall, she described herself in evidence as being in shock. She felt numb, with a tingling sensation in parts of her body. She was winded. It was about twenty minutes before she was able to stand up properly. She had considerable pain in her back, and also pain in her right elbow which she thought she must have struck on the ramp as she fell. The back pain was acute and was in the upper to middle part of the back. Her lower back was also throbbing. With the assistance of Mr Woodford, mentioned above, she walked very slowly to the site of the press conference which had by then concluded. She stayed in Thredbo for the rest of the day, in a lot of pain and feeling very sore, but attempting to fulfil her duties. As the day went on, the pain got worse. She was asked why she did not seek medical attention on the day, and said that she felt she could not complain about back pain when there were still seventeen or eighteen people buried under rubble at the landslide site.

83. By the following day, Wednesday 6 August, the shock had worn off but the pain had become, if anything, worse. She adapted her interviewing technique to fit in with her condition, and left much of the editing process to staff in Sydney because she found it too painful. She spent some time on that day lying in her hotel room and resting. She returned to Canberra on the following day, Thursday 7 August. She told her producer that she could not stay in Thredbo because she was in too much pain and could not continue with her programme responsibilities. Her evidence in chief was that the next morning, Friday 8 August, she attended her general practitioner, Dr Harlow, at Griffith in Canberra. Dr Harlow prescribed painkillers and anti-inflammatories, and advised the plaintiff to use a heat pack and to rest. The Friday was a rostered day off and the plaintiff was able to go home and lie down, and spend the weekend resting. She went back to work on the following Monday for two or three days, and then took ten days leave which had been prearranged, for the purpose of moving house. She went back to see Dr Harlow at the end of that time, and was referred for x-rays. The x-rays revealed an anterior compression fracture of the body of the T7 vertebra. Dr Harlow recommended that the plaintiff take some weeks off to rest. She was advised not to sit or stand for too long, and not to carry anything.

84. Unfortunately the plaintiff's husband was working in Malaysia at the time. Her family and a number of friends helped with the house move, and generally looked after the plaintiff, cooking and washing up as well as moving furniture.

85. The plaintiff attempted to go back to work on 15 September, but lasted only three or four days and went off work again. On 13 October 1997 she attempted a graduated return to work, three half-days a week.

86. The plaintiff's husband returned from Malaysia early in October 1997. About a month later, he was diagnosed, suddenly and unexpectedly, as suffering from non-Hodgkin's lymphoma. The plaintiff continued with her work part-time, and during the same period accompanied her husband to appointments with medical specialists in relation to his condition and treatment. She took four weeks' leave over Christmas 1997. She and her husband went to Wollongong for Christmas. This was her first attempt at travelling a long distance since the accident, and the plaintiff found the trip painful. She needed to stop from time to time to get out and stretch.

87. The plaintiff and her husband had not planned to start a family at that time, but they were told that his treatment would probably cause sterility. After obtaining advice from a neurologist, Dr Danta, as to the likely effect on her back condition, the plaintiff became pregnant, but had a miscarriage in January 1998, being admitted to Canberra Hospital overnight as a result. She stayed off work until about the end of March 1998. During that month, she commenced part-time work as a tutor in journalism at the University of Canberra. This involved her in about an hour and a half per week conducting tutorials, and about three hours preparation and marking which she was able to do at home.

88. In about the middle of 1998, the plaintiff resumed her graduated return to work programme with the ABC, initially limited to one or two hours per week. She found that computer keyboard work caused her back pain to flare up. As an alternative, she arranged and planned a series of political discussions which ran for about fifteen minutes each Friday afternoon on the PM programme. She gradually increased her working hours, getting up to twelve hours in the workplace and about ten hours at home each week. She spent three half-days at the office on Mondays, Wednesdays and Fridays. She found that prolonged sitting increased her pain, and in particular keyboard work. Carrying her kitbag caused her increased pain also. She felt the pain in her back and also through the chest and around the ribcage, and from time to time pain and numbness and tingling down the right arm and in the right leg. To alleviate the pain she took medication and got into the habit of drinking a few glasses of wine in the evenings. She said that she was often in agony when she got home from work, and could do nothing but rest. This pattern continued until the end of 1998. The plaintiff's recollection was that she discontinued her University tutoring work once she resumed work at the ABC in mid-1998.

89. At the beginning of 1999, the plaintiff was told that the ABC no longer approved her working at home. She was required to do all her work at her office. She attempted to comply with this, but her pain increased sharply. In March 1999, she was referred by Comcare to Dr D Billett, orthopaedic surgeon (for assessment, rather than treatment). Dr Billett expressed some concern to the plaintiff about the stability of the fracture. He told her that if the fracture was unstable, the body of the T6 vertebra might move forward in relation to the body of the T7 vertebra, carrying some risk of damage to the spinal cord. He recommended further radiological investigation. The plaintiff was concerned that she might end up paralysed. X-rays or MRI scans were arranged which excluded this risk. The plaintiff, in the interim, had been subjected to significant additional stress and anxiety because of the issue raised by Dr Billett.

90. In May 1999, the plaintiff and her husband moved from Braddon to Bungendore. By this time, the plaintiff had changed general practitioners, and was seeing Dr Kirsty Douglas. On Dr Douglas's advice, the plaintiff stopped work at the ABC. She remained off work for the balance of 1999. During the second half of that year, her husband had a relapse, and underwent a course of chemotherapy, followed at the end of the year by a stem cell transplant.

91. In February 2000, the plaintiff recommenced her part-time work at the University of Canberra. In July 2000 she commenced a further graduated return to work programme with the ABC. She found the programme generally unsatisfactory. Her experience was that whilst her immediate superior in Canberra was supportive, those at a higher level in management in Sydney had unrealistic expectations of her and were unsympathetic to her condition.

92. In November 2000, the plaintiff was injured when her car was struck from behind whilst stationary in traffic near the Canberra Hospital. The collision caused an immediate increase in pain, generally in the same areas, and her symptoms were exacerbated for a couple of months. In December 2000, the plaintiff and her husband went to England for two months. She said that she found the plane travel agonising. They spent most of their time at a house belonging to friends near London. They also spent a few days in Italy and in Ireland. When they got back to Australia, the plaintiff recommenced work at the ABC in January 2001. In February 2001, she enrolled at the University of Canberra as an undergraduate. She ultimately completed a degree in communication at the end of 2002, having being given credit for some of her Wollongong arts subjects.

93. The plaintiff found that further demands were made on her at the ABC. In March 2001, she attended a case conference chaired by an independent mediator and comprising an occupational therapist engaged by Comcare, the ABC head of rehabilitation, the plaintiff's general practitioner, her husband and a union representative. Agreement was reached to amend the plaintiff's duty statement and some flexibility was introduced. The plaintiff resumed work at the University of Canberra, spending one and a half hours conducting tutorials and three hours preparation and marking each week as previously. She worked each Friday afternoon at the ABC offices at Northbourne Avenue. The plaintiff's local supervisor was Mr Michael Donaldson, ABC news editor, and her departmental head was Mr Walter Hamilton, based in Sydney. The plaintiff felt herself under increasing pressure to increase her working hours and output.

94. Mr Hamilton organised another conference in August or September 2001, attended by the ABC rehabilitation provider, the Comcare occupational therapist, the plaintiff, her general practitioner and a union representative. Mr Hamilton said that he was not happy with the hours the plaintiff was working, or the number of stories being broadcast. He made it clear that he would not tolerate the plaintiff working from home, and he insisted that she increase her working hours, preferably over two consecutive days, to meet programme requirements. He made it clear that he expected the plaintiff to try to work as effectively as an employee who had not been injured. The plaintiff found the meeting distressing. It was lengthy and tense. Mr Hamilton was clearly unsympathetic to the recommended medical restrictions, and there was some conflict between him and the medical and rehabilitation people.

95. Shortly after that, during September 2001, Dr Douglas certified the plaintiff as unfit to work, and she ceased to work for the ABC. It was agreed by Dr Douglas, the occupational therapist, the physiotherapist and the ABC rehabilitation officer that the plaintiff should withdraw from work at the ABC for twelve months and focus on returning to work in a more supportive environment with more appropriate duties, attempting to build up hours over time.

96. The plaintiff commenced work at the University of Canberra again at the beginning of 2002. This work involved three hours conducting tutorials and six hours preparation and marking at home each week. During 2002 and 2003, the plaintiff built up her hours at the University, and from the beginning of 2003, commenced in a contract position as a subject coordinator. During 2003, she was working approximately 50% of a full teaching load. She found it arduous but emotionally and psychologically rewarding. For the first weeks, she needed to take more medication and was often in extreme pain, particularly when she got home at the end of the day. By the end of April 2003, the plaintiff's view was that she had reached her maximum working capacity at 50% of a full teaching load, and could not cope with any more. By then, it was clear that a return to work with the ABC was no longer an option. Her expectation was that in the foreseeable future the ABC would take formal steps to terminate her employment on medical grounds.

97. By this time, the plaintiff's opinion was that her condition had stabilised. It had not improved for some years, though her ability to cope with the pain had improved. She still had pain all the time, every day, which was worse in the middle to upper back.

98. The plaintiff explained that the pain affected her relationship with her husband, reducing her capacity to support and care for him, and causing her to be depressed and less tolerant. Their sexual relationship had suffered in both frequency and intensity by reason of the plaintiff's pain and depression. As to depression, the plaintiff described a flat, unhappy, sad feeling for long periods of time, a feeling of heavy-heartedness and despondency. She had been taking Lovan, an antidepressant, for an extended period to alleviate these symptoms.

99. The plaintiff also said that, before her fall, she was a very social person. Before the accident, she and her husband frequently went out to dinner, to parties, to the theatre and to films, and they travelled extensively. Their social life had been greatly restricted by her pain and depression.

100. The plaintiff felt that in her work with the ABC, she was realising her ambition. She feels that her career has been destroyed. Her dream of becoming a foreign correspondent will never be realised and she has found this soul-destroying. She feels humiliated and devastated

101. In cross-examination, the plaintiff conceded, consistently with a note made at the time by Dr Harlow, that the elbow she had injured at the time of the fall had been her left elbow, and not her right as she had said in chief. This mistake is understandable: the elbow injury was a comparatively minor one by comparison with the back injury and seems to have resolved completely within a short time.

102. The plaintiff was cross-examined about her return to work after coming back from overseas at the beginning of 2001. The defendant tendered a series of internal ABC emails. The first was dated Monday 29 January 2001, and was from Kirsty McIvor to the plaintiff with copies to other ABC staff. The email commenced cordially enough, welcoming the plaintiff back from her trip, but went on to set out an altered duty statement for the plaintiff's return to work, on the understanding that she would be working for 2 hours 45 minutes on Wednesday and Friday each week. The duty statement commenced with an expectation that the plaintiff would provide at least one story per week, if not two - perhaps on Wednesdays a story for The World Today or PM, and on Fridays a story for PM or the Saturday edition of AM. Ms McIvor noted that the demands of Parliament House required that a reporter be able to work fast, but said that allowances would be made for the plaintiff until she was sufficiently "up-to-speed" on certain computer programs. She would be expected to telephone the executive producers of the programmes mentioned on Wednesdays and Fridays. If she was ill and did not intend to come to work, she was required to ring Ms McIvor before start time, and to provide a medical certificate. She was informed that there was a personal computer on her desk with software installed, and that a new chair would be waiting for her on Wednesday 31 January.

103. The plaintiff's evidence was that she had a meeting on the day she received that email with her occupational therapist who had telephoned her at home to warn her that there would be changes on her return to work. The plaintiff reacted emotionally to the email, taking the view that Ms McIvor's expectations as set out in the duty statement required her to undertake duties beyond those which her general practitioner regarded her as capable of doing. She read the email as making her responsible to three supervisors instead of one, and requiring her to produce a story in two hours and 45 minutes. She said that the requirement was one which might be expected of a senior journalist working under extreme pressure in rare circumstances, and that it was utterly ridiculous. She said that the changes directly contravened her medical certificate and all of the agreements which were in place between the ABC, the occupational therapists, and the doctors. He evidence was that because they were "outside the medical certificate" she believed that for her to agree to perform the tasks envisaged by the new duty statement would amount to a breach of the Comcare legislation. Her counsel made no submission supporting this belief, which seems to have been misconceived, but there is no doubt that the plaintiff's reaction to the email was one of anger and negativity. She found it an affront, and a signal of yet another battle with the ABC. She felt overwhelmingly stressed, disappointed and frustrated. She had "banged her head up against a brick wall" so many times that she was at a point of utter distraction. She decided that she had had enough and could not go on any more. She went and showed her doctor the email, and said that the doctor, presumably Dr Douglas, "couldn't believe it either".

104. On 23 February, the plaintiff sent an email to Ms McIvor in which she said that she found the duty statement email threatening and distressing. It had left her feeling physically ill and exhausted from worry. She also mentioned a decision by Ms McIvor to instigate preliminary dismissal measures: there was no mention of this in the email of 29 January and something about it must have been communicated to the plaintiff subsequently. She said that this decision had compounded her stress; the duty statement had been deemed inappropriate by her doctors, and on medical advice, she would not be coming into work that day and would not be contacting Ms McIvor to discuss the duty statement issue further.

105. On 5 March 2001, the plaintiff sent a four page email to Ms McIvor, responding in detail to an email from Ms McIvor dated 22 February 2001 which was not in evidence. She sent a copy of the email to an officer in the personnel area at the ABC, asking that it be attached to her personal file. The tone of the email may be described as adversarial. It is clear that by this time the plaintiff's working relationship with Ms McIvor was untenable. She attended for work on some days during February 2001 but by the end of the month, she was off work again for an extended period. She did not return to Parliament House, and spent the balance of her time with the ABC at its Canberra regional office in Northbourne Avenue, coming in one day a week. Her employment was formally terminated with effect from 11 July 2003.

Damages - the supporting witnesses

106. There was some lay evidence called in relation to the damages aspect of the plaintiff's claim. He husband, Mr Tim Anger, a civil engineer employed by Snowy Mountains Engineering Corporation, gave evidence generally consistent with and corroborative of the plaintiff's evidence. Ms Fran Kelly, who was with the plaintiff at the time of the fall, had been bureau chief or chief political correspondent with ABC radio current affairs at Parliament House, and in that capacity had been responsible for supervision of the plaintiff for some little time before the injury. She had been impressed with the plaintiff's work in Wollongong and Sydney, and had played a part in having her brought to the press gallery in Canberra. She was very happy with the plaintiff's performance, describing her as an independent worker with her own ideas and a very strong live interviewer. She was quick, needed little supervision, and soon became a respected member of the press gallery.

107. Mr Matt Peacock, who gave telephone evidence from London, said that in 1997 he was working with the ABC in Canberra, in the position subsequently occupied by Ms Kelly. Thus he was the plaintiff's supervisor for a few months. His opinion was that she was a journalist with considerable potential, and that if she had continued with the ABC she would have become a senior political correspondent and possibly a bureau chief or overseas correspondent.

108. Ms Wendy Bilboe, whose evidence relevant to the issue of liability has already been summarised, first met the plaintiff in about 1991 when they both worked for the ABC at Wollongong. She moved to Canberra in 1993 and renewed her friendship with the plaintiff when the latter arrived here at the beginning of 1997. She was by then a lecturer in journalism at the University of Canberra, and it was she who was instrumental in obtaining the plaintiff tutoring work. In her opinion the plaintiff has strong skills as a journalist, and a suitable personality to teach journalism. She said that the plaintiff inspires students and is a good role model. She explained that the journalism school at the University of Canberra has three full-time staff and a number of part-time tutors, including the plaintiff. She regarded the plaintiff's prospects of obtaining a more permanent academic position as limited. Not all Australian universities offer courses in journalism. Generally university schools of journalism employ few staff. Ms Bilboe described academic journalism as a closed shop, where jobs do not come up very often and are usually filled by people already within the system. Generally a master's or higher degree is regarded as a requirement for employment as a lecturer, while an undergraduate degree is adequate for a tutor. She thought that the plaintiff's physical restrictions and lack of skills would militate against her chances of obtaining employment in the area of public relations. She agreed that the plaintiff has the talent and ability to obtain a master's degree and to work as a lecturer in journalism.

The general medical evidence

109. This brings me to the medical evidence. Seven medical witnesses were called in the plaintiff's case and four for the defendant, and in addition other specialist reports were tendered. The specialists included a neurologist, a rehabilitation consultant, three psychiatrists and five orthopaedic surgeons. A considerable volume of clinical notes of the general practitioners who had treated the plaintiff was also in evidence.

110. The plaintiff was cross-examined about some handwritten notes by Dr Harlow, her general practitioner, prior to and immediately after the fall. The plaintiff had seen Dr Harlow on 29 July 1997, a week before the fall, presenting with symptoms of nausea, diarrhoea and dizziness, possibly the aftermath of a Giardia infection. The next entry was on 12 August 1997, a week after the fall, and the first part of Dr Harlow's note reviewed the symptoms of a fortnight earlier. The note went on to record that the plaintiff had fallen on her back on 5 August at Thredbo, suffering bruising to the left elbow and some discomfort of the lower back. The back was still painful and there was some pain on twisting. Counsel for the defendant argued from this that the back symptoms must have been relatively mild, as the plaintiff apparently did not seek medical treatment until a week after the fall, and when she did, it appeared that her back symptoms were less important than those relating to her previous diarrhoea and nausea. There was no report from Dr Harlow in evidence, and she was not called as a witness. It may well have been, as the plaintiff suggested in cross-examination, that Dr Harlow, referring to her previous note, opened the discussion with a review of the earlier condition. It cannot have been particularly bad during the intervening fortnight. There is no suggestion that it caused the plaintiff any problem in relation to her work at the ABC, including the drive at short notice to Thredbo.

111. Dr Kirsty Douglas took over from Dr Harlow as the plaintiff's general practitioner early in 1998. Dr Douglas is also a senior lecturer in general practice at both the University of Sydney and the Australian National University. She has been seeing the plaintiff about once a month. She treats the plaintiff's chronic back pain, which she regards as permanent, with analgesics, massage and transcutaneous electronic nerve stimulation. Occasionally stronger compound analgesics are necessary. Her depression is generally adequately controlled with Lovan. The plaintiff's involvement in this action has made her generally more anxious and stressed, which impacts negatively on her mood and pain levels. In Dr Douglas's view, she is likely to require treatment for her pain and depression indefinitely, in the form of medication, massage, physiotherapy and gym attendance. She is likely to require continuing antidepressant medication and psychotherapy for one to two years. Dr Douglas would expect some improvement in her psychological state if she is successful in this action and can move out of the workers' compensation environment. She has suffered from grief because of the loss of her career but Dr Douglas expects that this will become less acute over time. Eventually Dr Douglas is hopeful that the plaintiff will be able to cope without antidepressants.

112. Dr Douglas thinks that the plaintiff will continue to require help indefinitely with heavier tasks in the home such as bedmaking, mopping and scrubbing in the bathroom, and gardening. Her husband has been unable to help with these tasks because of his own health problems but Dr Douglas is hopeful that this will change as his health improves. Dr Douglas suspected that the plaintiff's husband's illness had increased her general stress levels and had had a negative impact on her physical recovery. Dr Douglas thinks that the plaintiff needs three to four hours a week of home help, and that this will continue indefinitely. The fact that the back pain has continued for more than six years is a poor prognostic sign. Dr Douglas does not expect that the plaintiff will ever return to work as a radio journalist, and regards her present position as a lecturer or tutor in media studies as more suitable to her physical and psychological disabilities, offering a more flexible working environment with less stringent deadlines and more supportive superiors. She is hopeful that the plaintiff will be able to increase her hours over the next year or two to something like 75% of a full-time load, though she doubts that the plaintiff will ever be able to manage 100%. She regards the plaintiff as a highly articulate, intelligent and determined woman, and has observed some emerging sense of autonomy and achievement in finding something else she can do well, and feeling that she is making a contribution.

113. Dr David McGrath is a Canberra-based specialist in occupational and musculoskeletal medicine, involved in the plaintiff's treatment since 1998. His evidence was that although the prognosis for a stable thoracic fracture is usually good in the medium to long term, a firm percentage of patients do not recover very well, which he attributes to physical complications in or about the fracture. The most likely cause is damage to surrounding structures such as the posterior facet joints and the associated ligaments and surrounding blood vessels, lymphatics and nerves. Dr McGrath, who gave evidence before the termination of the plaintiff's employment, noted that the ABC had been unable to find a suitable role for the plaintiff during her rehabilitation. There had been considerable conflict between the plaintiff and her managers. It was highly improbable that the plaintiff would ever return to the ABC as a full-time journalist. His recommendation was that, in the interests of the plaintiff's physical and psychological health, she should leave the ABC and make a fresh start with another employer. He agreed in cross-examination that her condition could be described as chronic pain syndrome. He disagreed that it was psychological in origin. His opinion was that the cause was physical. He explained that there were some cases where physical damage could not be detected by modern imaging techniques, and could probably only be detected, in the current state of technology, by anatomically dissecting the area. He referred to studies where the bodies of chronic pain sufferers had been dissected after death, revealing damaged tissue which had not been detected by scanning or imaging in life. Dr McGrath thought it probable that the fracture itself had healed but that there were surrounding structures that had not. Bone, he said, heals quite well because it has a good blood supply, but other structures do not have the same healing capacity. He said that such injuries could usually be expected to resolve slowly over time and settle down as the body created scar tissue and bone tissue in the area of the injury. He thought that it was possible that the plaintiff might eventually become pain-free, but her progress to date was disappointing. Psychological treatment would not achieve a cure for the pain, but could improve the coping mechanisms of the patient. There was in his view a probability that the plaintiff would improve once the present litigation was concluded.

114. In re-examination, Dr McGrath was asked whether the length of time that a patient had suffered from chronic pain was a relevant factor in assessing the chances of complete recovery, and how long the recovery process might take. His answer was that the pattern was variable. He had seen patients who remained just as disabled after completion of their litigation for a number of years; and other patients who appeared to make an almost miraculous recovery. The probability was that the plaintiff would recover, though she might not, and recovery might not occur for several years. He agreed that there was a general tendency that the longer a patient had had a chronic pain condition, the less likely it was that recovery would occur. The medical data and literature did not enable him to be more specific, as patients after severe accidents have been studied only up to about seven years; they have not yet been followed up for fifteen or twenty years.

115. Mr Tom Sutton, clinical psychologist, gave evidence for the plaintiff. He first saw her in July 1998, and carried out a number of tests to assess her management strategies in relation to her pain, and her emotional and personality status. He found no evidence of abnormal illness behaviour or hypochondriasis. Her personality assessment showed that she was the kind of person who was hesitant to admit to any negative consequences and would minimise problems and their impact on her. She was the opposite of the kind of person who exaggerates symptoms or malingers. There was no evidence of any personality disorder or psychiatric pathology. She had heightened levels of irritability, but this was a natural consequence of her pain. Mr Sutton had a number of sessions with the plaintiff in 1998, with numbers of consultations reducing annually since, down to two a year for the last couple of years. Unlike Dr McGrath, Mr Sutton did not think that the conclusion of litigation of itself would be likely to be followed by recovery. In his experience of more than thirty years as a clinical psychologist, he had never encountered a case where a patient with chronic pain had recovered after litigation. He said that it was possible for patients with chronic pain to improve, but this was variable and unpredictable. He did not think that the plaintiff's physiological depression, that is to say the depression experienced in changes to sleep, appetite, libido and so forth, would ever disappear. The other components of her depression, namely the cognitive (negative thinking) and affective (sadness, loss of enjoyment) aspects, might show some improvement, but this was less likely with the physiological component. It was put to him that so far as any objective examination was concerned, the T7 fracture had healed in a way which should not still be producing pain. Subject to the rider that physiology and neuro-anatomy were outside his field of expertise, he commented, consistently with Dr McGrath's evidence, that objective demonstrable evidence in 80% of neck and back injuries was restricted to physical examinations and scans, which were limited to identifying structural damage, for example, in vertebrae, and did not pick up many other causes of pain in the spine.

116. Mr Sutton was asked about the stressors in the plaintiff's life, arising, for example, from her husband's illness and her own miscarriage. He explained that these did not increase her pain, but increased her difficulty in managing it. Chronic pain, he said, is a stressor in itself, limiting the energy available for solving other problems. A combination of stressors makes it difficult to manage the pain and to manage the individual stressors. Chronic pain also affects motivation, which is relevant to improvement.

The orthopaedic evidence

117. There was no orthopaedic surgeon involved in the plaintiff's treatment, but Comcare, at various times during the progress of the claim, arranged for her to be assessed for their own purposes by four orthopaedic surgeons, Dr Peter Dewey, Dr Derrick Billett, Dr Duthie Mills and Dr Jeremy Hopkins. Dr Billett was called in the plaintiff's case and Dr Dewey and Dr Hopkins in the defendant's case. I shall summarise their evidence in the order in which they first saw the plaintiff.

118. Dr Dewey saw the plaintiff on one occasion only, in May 1998. He described her as extremely loquacious, talking so quickly that it was almost impossible to record what she was saying. He took a history and conducted a physical examination. He had the benefit of x-rays of the thoracic spine dated 25 August 1997 and an MRI of 14 November 1997. The x-rays showed a crush flexion-type fracture of the 7^th thoracic vertebra with a loss of about one-third of the anterior body height and no loss of posterior height. The MRI confirmed the x-ray findings and demonstrated that there was no compromise of the spinal canal. Dr Dewey thought that the injury would produce pain and discomfort for a lengthy time but would ultimately resolve; indeed, he expressed the opinion that such injuries invariably resolve. He appeared to be thinking in terms of a time frame of a few months. He recommended continuing conservative treatment in the form of exercises and medication, with some therapy from a psychologist to give her insight into her problems and to assist in recovery. He doubted whether she could work as a radio journalist. He thought that she required a carefully planned return to work with assistance from a psychologist. His evidence was that her injury was a typical flexion-type fracture, occurring with a simple fall. He had seen patients with very similar if not identical injuries over the years. He said that in the normal course of events, often the patient did not realise that she had suffered a fracture initially, and the symptoms often worsened in the ensuing two or three weeks. Usually after six to nine months the symptoms were lessening and within eighteen months to two years they should have disappeared, assuming that there was no displacement, dislocation or other complication. There was no sign of any such thing in the plaintiff's case. When he saw her, he thought that she was developing a chronic pain syndrome, a common condition seen in orthopaedics. The prognosis for the syndrome was usually for very slow recovery with appropriate conservative and supportive therapy.

119. Dr Billett saw the plaintiff on three occasions, the first being 9 March 1999. Following a physical examination, he formed the view that whilst she may have sustained a soft tissue injury to the cervical spine at the time of the fall, this injury had resolved. Her continuing neck symptoms might be due to underlying degenerative changes in the discs. It was possible that she had injured a disc in the lumbar region in her fall, in addition to the T7 fracture; this would account for her symptoms on the right side of the low back and in the right leg. He expressed some concern that the T7 fracture might be unstable, causing some risk to the spinal cord, and recommended that the possibility of this should be excluded by further MRI study. As mentioned previously, this possibility caused the plaintiff considerable anxiety until the subsequent MRI confirmed the stability of the fracture. Dr Billett said that he would expect degenerative changes to occur within the discs above and below the body of T7. He regarded it as certain that arthritic change would occur above and below the fracture site. This could be expected to cause continuing pain in the thoracic area. The plaintiff had not yet stabilised. She was partially incapacitated for her pre-injury work as a radio reporter. He could not determine when her incapacity was likely to cease. He attributed her condition entirely to the fall at Thredbo.

120. Dr Billett reviewed the plaintiff for Comcare in December 1999. He recorded her continuing symptoms, which were consistent with his physical examination. He recorded that an MRI scan of 18 May 1999 had detected a decreased signal from T5 to T10, and in particular at the T5 to T7 levels. She had continuing symptoms in the neck, but Dr Billett attributed these to pre-existing degeneration in the cervical spine rather than to the injury at the time of the fall, which he thought had been soft-tissue in nature and should by then have recovered. He thought that the decreased signal in the thoracic spine probably emanated from the fall. It appeared to him that the plaintiff had developed degenerative changes in the thoracic spine. There were also symptoms consistent with nerve root irritation in the lower lumbar region on the right side, related to the fall. He assessed her as capable of working part-time. He thought that she should be permitted to work from home because this would spread her work rather than concentrating it into short daily periods. She was in his view capable of working for at least four hours a day three days a week, as well as working at home for ten hours a week.

121. Dr Billett last saw the plaintiff on 9 April 2002, again for the purpose of a report to Comcare. He noted that she had ceased work with the ABC in September 2001, and was working at the University of Canberra part-time. She continued to complain of neck symptoms, which Dr Billett attributed to underlying pre-existing degenerative changes in the facet joints and discs, unrelated to the fall. He accepted that she had suffered a soft-tissue neck injury in the fall, from which he thought that she had recovered completely. The effects of the T7 fracture, and the resulting arthritic changes above and below that vertebra, were continuing. He thought that the plaintiff could probably work for the ABC on a part-time basis, provided that flexible arrangements could be made available. She should be able to undertake some household duties, but would continue to need assistance with gardening. The prognosis was guarded and he could not determine when her thoracic pain might resolve.

122. In his oral evidence, Dr Billett expressed some scepticism about the concept of chronic pain syndrome generally. He accepted the plaintiff's pain, which he thought had a definite physical cause. He thought that in the future her pain was likely to increase, with further changes to the discs. She might eventually become a candidate for interbody fusion, although the results would be unpredictable. He thought that she might stay at her present pain levels or might deteriorate. He did not think that there was any expectation of improvement. He disagreed with the opinion of Dr Hopkins to which I shall come shortly.

123. Dr Duthie Mills examined the plaintiff in June 2000 for the purpose of a report to Comcare. The report was tendered in the plaintiff's case and he did not give oral evidence. On physical examination, he found diffuse tenderness over the thoracic vertebral spinous processes from T1 to T12 and over the adjacent soft tissues to the right and left of the midline in a widespread area, and also in a wide area of the soft tissues about the lumbo-sacral junction. He described the tenderness as non-anatomic in distribution. His opinion was that she had had appropriate treatment for her fracture, and that much of the extensive symptomatology of which she complained was unrelated to the fracture. She displayed widespread signs which could not be explained on any organic basis. He diagnosed her as suffering from a chronic pain dysfunction syndrome. He thought that her condition was solely related to the fall, and doubted whether any further significant reduction in impairment could be achieved by active medical treatment. He thought that the supervision of a pain management specialist might be beneficial, to maintain her present status.

124. Dr Jeremy Hopkins saw the plaintiff in May 2001. He had been provided with Dr Mills's report. He recorded her involvement in a motor vehicle accident in November 2000, and her trip to Europe a few weeks later. He found on physical examination some tenderness and restriction of movement in the cervical spine, which he thought was unlikely to be related to the fall, and which might have been an aggravation from her motor vehicle accident in November 2000. She presented with a plethora of widespread signs which in his opinion could not possibly have been caused by the T7 fracture. Her presentation was out of all proportion to the initial injury and its pathology. He attributed her symptoms and their severity to a major chronic pain syndrome. He thought that from a purely physical point of view, she was capable of undertaking a far greater degree of simple day-to-day activity than she realised. He thought that the symptoms associated with her arms could not have any direct relationship with her thoracic fracture. Pain management assistance from a psychologist was essential for her rehabilitation. In addition he recommended physiotherapy, hydrotherapy, and a gymnasium programme. He described her condition as almost entirely a chronic pain syndrome. Most T7 fractures eventually resolved to occasional low-level discomfort. His view was that the T7 pain would persist for a further two or three years, slowly improving to low-level discomfort on activity and perhaps to complete recovery. His opinion was that the fall was responsible for the complaints around the thoracic spine, but was not responsible for her other complaints in the neck, arm and right leg. There was no physical reason why she should not commence a graduated increase in working hours with modified duties. Over the next six to twelve months, he saw no reason why she could not be gradually increased to work five days a week, and for a greater number of hours, though not full-time. There was no physical reason why she could not drive to and from work between Bungendore and Canberra.

125. Dr Hopkins expressed the opinion (alone among the specialists involved in the case) that the plaintiff's fortnightly massage had no therapeutic value, and would be better replaced by physiotherapy and an exercise programme. On the massage issue I prefer the opinion of the other practitioners. It appears that on the basis of Dr Hopkins's opinion about this, Comcare refused to meet the cost of further massage treatment for the plaintiff, a decision of which she sought review by the Administrative Appeals Tribunal. The decision of the tribunal is not in evidence but the Comcare decision seems to have contributed significantly to the plaintiff's stress and anxiety. Continuing massage was strongly supported by Mr Sutton in his report of 14 October 2002. It appears that after some time, the massage treatment resumed, from which it seems likely either that the plaintiff succeeded in the AAT on this issue, or that Comcare reversed its decision after reviewing the medical opinions.

126. In oral evidence, Dr Hopkins said that he had observed cases of chronic pain syndrome in the course of his practice over the years. It was not an uncommon post-traumatic condition. With an improvement in the plaintiff's physical symptoms he would expect a gradual improvement over a period of eighteen months to two years leading ultimately to complete resolution. He thought that the prospect of her returning to her previous employment was reasonably good, having regard to her age, though perhaps she might not get back to 100%. He agreed in cross-examination that the duration of the symptoms was a relevant factor, and that the longer a patient has been in pain, the more difficult it is to treat, and the less chance there is of a satisfactory resolution.

127. Dr William Coyle examined the plaintiff on two occasions at the request of the solicitors for the defendant. He first saw her in August 2001. He had been provided with copies of several medical reports. She was at that time working for the ABC on reduced hours. She told him that there had been no overall change in her symptoms since Christmas 1997 although they varied with activity. He found a marked, and in his opinion, inappropriate tenderness to palpation over almost the whole of the back. Dr Coyle said that he could understand if she had some residual backache and even some chest wall pain if her local spinal nerve roots were irritated, but he could not explain or understand her other widespread and unusual symptoms. He agreed with Dr Mills that most of her symptoms could not be explained on any organic basis, and appeared unrelated to the T7 fracture. He thought that the injury was only of moderate severity and would not have been expected to incapacitate her, but he accepted that she was suffering from a degree of abnormal illness behaviour which could be described as chronic pain dysfunction syndrome, initiated by the injury. He doubted whether any further treatment would help. He guessed that she would recover after the completion of litigation. He thought that her chronic pain dysfunction syndrome was probably based on the conscious or unconscious hope of some secondary gain which might be financial, and in that sense she had a compensation neurosis in his opinion. He thought that she was exaggerating her symptoms, though not necessarily consciously.

128. Dr Coyle saw the plaintiff again in February 2003. She was by then on leave from the ABC and expected that her employment would be terminated on medical grounds. She was working part-time at the University of Canberra. She had lost a great deal of weight. Her symptoms had not changed appreciably, and Dr Coyle's opinion was unchanged.

129. Dr Coyle was asked to expand on his view that the plaintiff should improve after the completion of litigation. It had been his experience that such patients tend not to return for treatment after litigation is complete. In cross-examination, he conceded that he was unfamiliar with compensation neurosis as a DSM-IV diagnosis and would defer to a psychiatrist or psychologist on that issue. He also agreed that if one accepted that the plaintiff's perception of her pain was genuine, the fact that her symptoms had continued for some six years would suggest that the prognosis was gloomy.

The psychiatric evidence

130. Although no psychiatrist has been directly involved in the plaintiff's treatment, three psychiatrists gave evidence in the proceedings. The first was Dr Stephen Stern, who carried out a psychiatric assessment of the plaintiff at the request of her solicitors in October 2000. He was provided with a number of medical reports by way of background. He diagnosed her as suffering from moderate depression as a reaction to the pain and physical restrictions following her fall. He regarded her husband's lymphoma, and to a lesser extent her miscarriage, as contributing factors. From a psychiatric aspect, she was fit for her pre-injury work. She required continuing psychological treatment and antidepressant medication. Her psychiatric state had stabilised and it seemed that she would be left with permanent psychiatric symptoms. He noted the diagnosis of Dr Mills, orthopaedic surgeon, of chronic pain dysfunction syndrome. From a psychiatric perspective, Dr Stern thought this would be better described as a pain disorder related to her depression, that is to say an increased perception of physical pain due to psychiatric factors.

131. Dr William Knox saw the plaintiff on two occasions, at the request of the solicitors for the defendant. The first was in August 2001, when he had the benefit of reports from Dr Stern and Mr Sutton. He diagnosed a low level adjustment disorder with depressed mood, her impairment being predominantly physical. In his opinion the mood disorder comprised about 10% of her overall impairment. He thought that she had effectively put the experience of her miscarriage behind her, although her husband's chronic illness continued to be a stressor of some significance. He thought that concern over her husband's illness and infertility and the miscarriage accounted for some 20% of the mood disorder, that is 2% of overall impairment.

132. The defendant's solicitors then sent Dr Knox copies of Dr Mills's report and Dr Coyle's report, inferentially asking him to assume that their orthopaedic opinions were soundly based. Both had referred to a chronic pain dysfunction syndrome. Dr Knox took this as an indication that both doctors took the view that the plaintiff had more widespread pain and dysfunction than could be accounted for by her physical injuries. He accepted that there were persons who complained of pain in the absence of identified physical injury. He said that there were no widely accepted explanations for this, but it was generally considered that such pain was due to psychological mechanisms. The diagnosis for such non-organic pain according to the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition (DSM-IV) is Pain Disorder. Where there is an identified physical condition but it in inadequate to account for all of the physical symptoms, the diagnosis is Pain Disorder Associated with both Psychological Factors and a General Medical Condition. Based on the orthopaedic reports, Dr Knox assumed that the soft tissue injury accompanying the T7 fracture had recovered within weeks or months. It followed that the plaintiff must be suffering from chronic pain dysfunction syndrome. Accepting this, he appeared to think that she must be exaggerating her symptoms, though he was unable to determine whether the exaggeration was conscious or subconscious.

133. Dr Coyle had referred in his report to a compensation neurosis: Dr Knox thought it possible that the plaintiff's condition was being aggravated in some way by her compensation claim. He said that medico-legal processes typically focus a patient's attention on negative aspects of their condition rather than positive rehabilitation processes. He thought that broadly speaking, the plaintiff's health problems other than those directly arising out of the spinal injury were more likely to resolve in the event of settlement of her compensation claim. While she continued to be mildly depressed, and her antidepressant medication was appropriate, he thought that there was no psychiatric reason why she should not have returned to full-time work. Her adjustment disorder was not severe, and should not have prevented a well-motivated individual from returning to work.

134. Dr Knox reviewed the plaintiff in February 2003. He found little change since his earlier assessment. His experience was that back pain after an injury of the type suffered by the plaintiff was not usually due to nerve injury, although he could not rule out the possibility that there were neuropathic mechanisms at work. He thought it more likely that psychological factors were contributing to her pain. The stresses upon her had been increased by the recent knowledge that she had been under surveillance by Comcare. He assessed her as continuing to suffer from a low-grade depressive condition with some associated anxiety. Whilst her husband's illness and her miscarriage had played a part in her psychological reaction to her injuries at the time, he saw their involvement as relatively minor. He did not believe that the plaintiff would have become psychologically unwell without the physical injury and the resulting pain and disability. He forecast that her stress would be considerably reduced once the legal and compensation processes were done with. His prognosis was for a gradual but incomplete reduction in her depression and anxiety with the passage of time.

135. In the witness box Dr Knox expressed some optimism that if the plaintiff's pain improved enough to permit her to get back to a career equivalent to her ABC work, her psychiatric condition might recover completely. He conceded that psychiatry is a notoriously vague science, and that there are wide differences between individuals in the way they adjust to external influences. He agreed that the plaintiff's psychiatric condition was essentially intertwined with her pain condition, and that if the pain were to continue indefinitely, it would be reasonable to prognosticate that the psychiatric condition, to some degree, would also continue indefinitely.

136. The other psychiatrist who gave evidence was Dr Jeffrey Swift, who had been qualified by Comcare. He saw the plaintiff in May 2002. He had available a number of reports, including one from the treating psychologist, Mr Sutton, and a number from the four orthopaedic surgeons qualified by Comcare. He did not have the benefit of the reports of Dr Stern or Dr Knox, which had been commissioned for the purposes of the present action: one would not expect that Comcare would have been aware of them. His diagnosis was of dysthymic mood disorder due to chronic pain syndrome. He found that the plaintiff had a chronic low-grade depression, its symptoms being partially controlled by a low dose of antidepressant. He thought that she was generally receiving appropriate treatment. Her Lovan antidepressant medication should probably be increased, and she might benefit from a low dose of neuroleptic medication. He thought it likely that her pain syndrome would gradually improve over time, as would her depression, but it was unlikely that she would ever return to work as a radio journalist. The diagnosis of dysthymic disorder reflected similar symptoms to an adjustment disorder, but over a longer period. An acute adjustment disorder would normally last no more than six months; a chronic adjustment disorder would usually last six to twelve months, and a dysthymic disorder would last for two years or more. In the plaintiff's case, there were a number of contributing factors to the condition, including her back pain consequent upon the fall. He thought that the dysthymic disorder would persist to some degree for as long as the chronic pain persisted, but that it was capable of improvement if she could find work that she found enjoyable and rewarding.

Gradient of the ramp - the regulatory scheme

137. I have referred in my discussion of the engineering evidence to the Building Code of Australia, the 1994 Interim NSW National Parks and Wildlife Service Building Code, the NSW NPWS publication Walking Track Construction Guidelines, and two Australia Standards: the Disabled Access Code AS 1428 and the Platform Design Code AS 1657. It is necessary to give consideration to the legal status and applicability of these codes, guidelines and standards.

138. The management of the Kosciusko National Park is regulated by the National Parks and Wildlife Act 1974 of New South Wales, and the regulations under that Act. Regulation 11 relevantly provides as follows:

Consent of Authority to Certain Conduct

11.(1) A person shall not, unless with the prior consent of the authority and in accordance with such conditions and after payment of such charges as the authority may from time to time impose, . . . within any park -

(c) erect, occupy, operate or utilise or cause to be erected, occupied, operated or utilised any building, structure, installation, engineering work, plant, equipment, amusement device, fixture or improvement;

It is clear that the bobsled facility, including the track and the building used for the storage of sleds and the sale of tickets, is within the scope of the regulation, and that it would have been a breach for the defendant to have erected it without the consent of the authority (that is, the Director of National Parks and Wildlife: regulation 4(1)) and without meeting any conditions imposed by the Director.

139. Approval was granted to the erection of the bobsled facility by letter dated 30 August 1994, signed by a regional manager on behalf of the Director-General and addressed to the defendant. Approval was granted subject to conditions. One of the conditions was that all work was to comply with the approved plans; another was that all work was to comply with the Interim NPWS Building Code and with the Building Code of Australia including the NSW amendments. It appears that the Codes have legislative force of themselves, but in any event by making compliance with the Codes a condition of approval, the Director General created a situation where non-compliance with the Codes would equate to non-compliance with the regulations.

140. The Interim NPWS Code came into effect in August 1994 and superseded the previous Code. It was thus in effect at the time of approval and of construction of the bobsled. The Interim Code provided that building activities must conform with its provisions, and also with the Building Code of Australia: Cl 2.2. The provisions of the Building Code of Australia were to form the minimum standards of construction within a national park: Cl 2.3. The Interim Code included a provision permitting some flexibility, whereby in limited circumstances an applicant could obtain what was described as a concession as to compliance. It is not suggested that any application for concession was made in relation to the bobsled facility.

141. The stated aim of the design standards included in the Interim Code included ensuring the wellbeing and physical safety of the public: Cl 4.4.1. Clause 4.4.7 provided as follows:

4.4.7 Disabled access

All buildings including associated facilities must be conveniently accessible by the disabled. The requirements of the Building Code of Australia and AS1428 are the minimum acceptable standards.

External works should be designed to ensure that people with disabilities are not unreasonably disadvantaged. The document "Outdoor Access for All" published by the Department of Sport, Recreation and Racing, can be used as a guide for designing accessible outdoor facilities.

142. It is clear that the Interim Code was intended to apply in Kosciusko National Park. Part 6 of the Code includes specific provisions applicable in the Snowy Mountains region. The section is expressed to apply to areas in the Kosciusko National Park above an altitude of 1200 metres and where access may be interrupted by snow or inclement weather. Examples of alpine-specific provisions are that building construction must not proceed beyond 30 April each year (Cl 6.1.2) and that exits from premises must be kept free from snow and ice when a building is occupied (Cl 6.1.17). The Code contains, in Part 7, penalty provisions, for example, carrying out work which does not comply with a building approval or with approved plans and specifications, suggesting that the Interim Code must have legislative force.

143. Both the Interim NPWS Code and the conditions of approval require compliance with the Building Code of Australia (BCA). The BCA classifies buildings into ten classes. I have mentioned that Mr Fozzard thought that the bobsled building came within class 6 (a shop or other building for the sale of goods by retail or the supply of services direct to the public) whereas Mr Cantali thought it came within class 10 (non-habitable outbuilding or structure). It is common ground that it does not come within any of the other classes. The evidence is that the building is used for the sale of bobsled tickets to the public. It is also used for the secure storage of sleds. Members of the public do not go inside the building to buy tickets, but conduct their business at a ticket counter under its roofline. Notwithstanding Mr Cantali's opinion, it seems to me immaterial that customers do not go inside the building. I am satisfied that the bobsled building is a building for the supply of services direct to the public, and hence a class 6 building within the BCA. The BCA requires that reasonable provision must be made in the design of a building, having regard to its use and location, to facilitate access and circulation by people with disabilities; Part D3. A path of travel providing access must not include an impediment which would prevent a person in a wheelchair using it; and access, including ramps, must comply with at least the provisions of AS 1428.1: Cl D3.3. There is an exemption from these requirements if access would be inappropriate because of the particular purpose for which the area is used: Cl D3.4. Access to buildings for people with disabilities is required to be provided by means of a continuous path of travel from any carpark area that serves the building: Cl D3.2. The evidence is that there is a carpark at Friday Flat, from which the path to the bobsled building provides access generally, including access for any disabled person. For example, a wheelchair-bound parent of a child wishing to ride the bobsled would be able to get to the ticket window via the path, the only possible hazards being a short portion of the path which consists of steel mesh, and the ramp on which the plaintiff fell.

144. The BCA contains specific provisions as to construction in alpine areas, which include the location of the bobsled. Part G4 applies to any building constructed in an alpine area and overrules other provisions of the BCA. Part G4 includes a requirement that an external ramp serving as an exit must have a gradient not steeper than 1 in 12: Cl G4.5. External ramps are required to have a floor surface that consists of steel mesh or other suitable material if used as a means of egress; cl G4.7. Exit is defined in Part A1 to include a ramp, if it provides egress to a road or open space.

145. Mr Fozzard's evidence was that the ramp was an exit from the bobsled building. Mr Cantali disagreed. I prefer the opinion of Mr Fozzard. He gave his evidence in an objective manner, and appeared to understand the function of an expert witness. Mr Cantali seemed incapable of expressing an opinion based on assumed facts, where the assumptions did not accord with his instructions. He appeared to me a partisan witness, lacking objectivity. He adopted an adversarial stance under cross-examination, giving the impression that he saw his role as to defend the interests of his client, the defendant. I accept the opinion of Mr Fozzard, that the ramp is an exit to the bobsled building for the purposes of the BCA.

146. As I have previously said, clause 4.4.7 of the interim NPWS Building Code incorporates both the BCA and AS 1428. The purpose of AS 1428 is to specify minimum design requirements for elements of buildings and related facilities to permit access by people with disabilities: AS 1428, Cl 1. The requirements specified in the Standard are intended to permit general use of buildings and facilities by people with disabilities acting independently, or where a person's usual method of operation is with an assistant, in the company of that assistant: Cl 2. The Standard includes detailed provisions as to the design and construction of ramps. The maximum gradient of a ramp exceeding 1520mm in length is to be 1 in 14, and ramps are to be provided with handrails on both sides: Cl 5.3. Handrails are to have a circular cross-section, between 30mm and 50mm in diameter, for at least 270 degrees around the upper surface, and the tops of the handrails are to be between 865mm and 1000mm above the surface of the ramp: Cl 6.1. Floors on ramps and walkways must have a slip-resistant surface with a texture which is traversable by a wheelchair. The ramp in question did not meet the requirements of AS 1428. The gradient was much steeper (1 in 3.7); the handrails were not circular and were considerably higher than the standard; and the surface of the ramp was not slip-resistant.

147. I accept the evidence of Mr Fozzard that the ramp should have complied with the interim NPWS Building Code, the BCA and AS 1428.1; and that it failed to comply with any of them. I also accept his evidence that the ramp, having regard to its gradient, surface and lack of proper handrails, was potentially dangerous, particularly in an alpine area.

148. I arrive at this view notwithstanding the evidence of Mr Gow. It may be recalled that he had been a ski instructor and mountain guide, and had risen to the position of chief executive officer of ski resorts in Canada. He has no academic or trade qualifications. He conceded that he was unaware of the NSW building regulatory requirements in alpine areas, and that he would defer to the opinion of an engineer on the issue of friction on a timber ramp. He had already expressed the opinion that the ramp and its surface were adequate for pedestrians wearing reasonable footwear before he visited the village to conduct a physical inspection. Whilst his experience may be regarded as providing him with expertise generally in the management and operation of ski resorts, I am not satisfied that his opinion on the adequacy of the ramp is of a great deal of assistance. In addition, I thought that his expectations as to clothing and footwear were unreasonable. I do not accept that a person in the position of the plaintiff should have been expected to know, as Mr Gow argued, that special footwear beyond normal outdoor footwear would be required in order to negotiate a path leading from one part of Thredbo Village to another. His opinion that the plaintiff should have been carrying her equipment in a backpack rather than a shoulder bag appeared to me lacking in practicality.

The ice issue

149. It will be seen from the particulars of negligence in the statement of claim that it is fundamental to the plaintiff's case that there was ice on the ramp at the time of the plaintiff's fall. As much was conceded by counsel for the plaintiff in address. I accept, from the evidence of the meteorological experts, Mr Lellyett and Mr Morison, that if there was ice on the ramp, it was not there by reason of the natural conditions. There had been no snow or rain which might have accounted for it, and inadequate moisture in the air to have caused the formation of frost on the ramp. If there was ice on the ramp, there must have been another cause for it.

150. The evidence of the witnesses in the two camps is diametrically opposed. The plaintiff's evidence is that the ground generally was icy or frosty, and that the boardwalk and the ramp were icy and slippery. The plaintiff said that she recalled a thin film of ice on the ramp. Ms Kelly's recollection was that the walkway and ramp were slippery and icy on the mornings when she used them during her time in Thredbo. Mr Barker recalled patches of ice on the boardwalk and recalled an incident where she fell, or almost fell, on the ramp herself. Mr Peacock recalled that the walkway had been slippery and icy on the days he had been in Thredbo, prior to the plaintiff's arrival, and said that he had nearly slipped on the ramp more than once. Mr Woodford, whom I accept as a genuinely and totally independent witness, recalled that the ramp had a frosty, wet feel about it and could easily be slipped on.

151. The recollection of the defendant's witnesses was entirely different. Mr Siegenthaler used the walkway and ramp every day during the relevant period, and recalled it as dry. He did not see any ice on the ramp. Mr Tomasi similarly used the walkway on many occasions during the period, and found it dry. Mr Kuhn used it every day and recalled it as dry. Mr Cox also used it daily and recalled that there was no frost or ice on the ramp or veranda of the bobsled building. Ms Roberts likewise recalled that the ramp had no snow on it during the relevant period. None of these people, all employees of the defendant, could recall having any difficulty negotiating the ramp in either direction. It seems that all of them used the path in a southwesterly direction in the morning which would have involved walking up the ramp, and in the opposite direction, down the ramp, in the afternoon; although some of them may have used the walkway at other times during the day.

152. Sergeant Daley's recollection was that the weather was fine while he was at Thredbo, though he used the roads rather than the bobsled path. Mr Goodwin, the ambulance media officer, could not recall any ice or frost on the walkway or the ramp during his time in Thredbo.

153. Apart from the plaintiff herself, the witnesses supporting her case were not asked to recall the circumstances or conditions until a matter of weeks or months before the trial, between five and six years after the incident. The same was true of Sergeant Daley and Mr Goodwin in the defendant's case. The employees of the defendant had in some cases been asked to turn their minds to the events of August 1997 somewhat earlier, but the originating application was not served upon the defendant until February 2001, and it seems likely that it was something of the order of four years after the incident before the defendant's employee witnesses were asked to recall the events. It is clear from the evidence that the defendant was unaware of the plaintiff's fall or the possibility of a claim for damages until served with the originating process.

154. I accept that the witnesses on both sides have all given what they believe to be truthful evidence, and have done their best to remember the condition of the ramp and walkway at the relevant time. However, I do not find the evidence compelling. The defendant's employee witness were all accustomed to working in Thredbo during the winter. Most had been using the walkway since it was constructed in 1994, and had continued to do so over the years since 1997. All had used the ramp in both directions on numerous occasions. All were aware from experience of what was appropriate footwear for the village, including the walkway and ramp. All would be likely to remember the unusual weather conditions during the days following the landslide. The fact that it did not rain or snow during the recovery effort was significant and something one would expect those witnesses to recall. All of them used the ramp much earlier in the morning than the time of the plaintiff's fall, and in the opposite direction to the plaintiff. I cannot be satisfied on the basis of the evidence of those witnesses that the ramp was ice-free at the time of the plaintiff's fall.

155. Much the same can be said of Mr Goodwin. Any additional credibility which might arise from his limited experience of alpine areas is more than outweighed by the fact that he was not asked to recall the events until almost six years later. In addition, I had a degree of discomfort about his evidence because of his unwillingness to accept even the possibility that he might be mistaken, particularly in circumstances where I am satisfied he was mistaken about one relevantly minor matter of recollection.

156. At the same time, I was left with some misgivings by the evidence of the plaintiff's supporting witnesses. In most cases, they were not asked to recall the events until many years later. Their recollections may have been coloured by the fact that the events took place in a ski resort in an alpine area, with sub-zero temperatures overnight, and some snow visible on the south-facing ski runs. I am satisfied that the ramp was unusually steep for a ramp on a pedestrian walkway, and that it had a relatively smooth surface. I accept Mr Fozzard's evidence that it might have been slippery, depending on the footwear worn, but I cannot be satisfied on any of the plaintiff's supporting evidence that the ramp was covered with ice on the morning of the fall or any of the mornings during the days following the landslide.

157. The plaintiff herself is the only witness who had a good reason to recall the condition of the walkway at a much earlier time. I am mindful of the description she gave in the Comcare claim form some six weeks after the fall. It does not seem to me likely that at that time the plaintiff would have appreciated that the presence or absence of ice on the walkway was of any relevance to any entitlements she might have to compensation or damages. The Comcare claim form was for compensation as an employee of a Commonwealth instrumentality, in respect of an injury suffered in the course of her employment. Fault was irrelevant. It seems unlikely that the plaintiff had by that time directed her mind to the possibility that she might be entitled to damages at common law if she could establish that her injuries had arisen as a result of the negligence of some entity other than herself. Her solicitors did not commence the present action until 4 August 2000. She was, of course, effectively precluded from bringing an action for damages against the ABC by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), but I think it highly unlikely that she was aware of this or gave any thought to it until much later. Her description in the claim form was "slipped, fell on back while walking along icy wooden ramp". She recorded elsewhere on the form "slippery, sloping ramp covered with ice - ice was beginning to melt."

158. The plaintiff's recollection of events at about the time of the fall has proved less than completely reliable in a number of respects. Her oral evidence was that she saw Dr Harlow the day after her return from Thredbo to Canberra, that is on Friday 8 August 1997. She also said that she had injured her right elbow when she fell. I am satisfied that she was wrong about both of these matters. It is clear from the notes of Dr Harlow, her general practitioner at the time, that she did not see her until Tuesday 12 August 1997, a week after the fall. Dr Harlow also records bruising to the left elbow. The elbow injury was a minor one and seems to have cleared up completely in a relatively short period of time but both of these matters cast some doubt on the reliability of the plaintiff's recollection.

159. The evidence about the plaintiff's footwear is in the same category. Her instructions to her solicitors, when first asked for particulars about footwear, described the boots she was wearing in reasonably specific terms. Later, after an incident at her mother's home, she changed her instructions about the footwear. She became quite definite that she had been wearing a particular pair of boots at the time of the fall. It became clear from later evidence that this could not have been the case. I do not accept the suggestion of senior counsel for the defendant that the plaintiff deliberately changed her instructions about the boots in order to improve her case, but I am left with some concern arising from the fact that she felt able to be so definite about what turned out to be the wrong boots. She is perhaps by personality type inclined to express herself in definite terms, rather than to appear uncertain or doubtful, and to say this is not to criticise her integrity. I am, however, left with some disquiet as to the reliability of her evidence as to her recollection of events which happened in 1997.

160. I am satisfied that the plaintiff's fall occurred between 8.30 and perhaps 8.50 am on the morning of Tuesday 5 August 1997. I am satisfied that there had been no snow or rain which might have left water on the walkway or ramp, and that there was inadequate moisture in the air for there to have been a frost on that morning. At the same time, I am satisfied that the temperature was cold enough for water to have frozen on the ramp, had it got there in some other way. I am satisfied that the snow on the slopes and the water in the Thredbo River and on the landslide site were too far away to have provided an explanation for water or ice on the ramp. I am also satisfied that the ramp had been in use by pedestrians for three hours or more on the morning, prior to the plaintiff's fall, and that there had been considerable traffic on it. Whilst I cannot be satisfied on the basis of the evidence called in the defendant's case that the ramp was dry and free from ice or frost at the time, equally I find myself unsatisfied by the evidence called in support of the plaintiff, that there was ice or frost present. I accept that the plaintiff has done her best to give her evidence truthfully, but I am left with reservations as to the reliability of her recollection. The question I must determine is whether I am satisfied on the balance of probabilities that at the time of the fall there was ice on the ramp. If there was, I would have little hesitation in making the causal connection between the presence of the ice and the fall.

161. I must also take into account the incontrovertible fact that the plaintiff slipped and fell on the ramp. I must ask myself whether there is a reasonable explanation for this having happened in the absence of ice. The ramp was steep and its surface relatively smooth. Other witnesses recalled having felt a sensation of insecurity when descending it. The plaintiff's footwear may well have had soles which, in combination with the slope and surface of the ramp, failed to provide an adequate degree of friction. It seems to me feasible that the plaintiff could have slipped and fallen on the ramp in the absence of an icy surface.

162. The plaintiff bears the onus of establishing her case as pleaded to the satisfaction of the court on the balance of probabilities. To do so, she must establish on the balance of probabilities that there was ice on the ramp which was a cause of her fall. To succeed in this, she has merely to tip the balance; but I find myself unsatisfied that the platform was icy. The plaintiff has accordingly failed to make out her case.

163. I should add that I accept that if there had been any previous falls on the ramp, the defendant was not aware of them. No falls or injuries had been reported in any formal sense to the defendant. No one had previously sought first aid or medical treatment in the village as a result of a fall on the ramp. Indeed, the plaintiff did not do so herself, and the defendant was unaware of the fall until served with process in the action. I also accept that there had been no falls reported to the defendant subsequent to the plaintiff's fall, by the time of the hearing of the action. This is not to say that people may not have lost their footing, stumbled, slipped or even fallen on the ramp from time to time: some of the plaintiff's supporting witnesses gave credible evidence of having done so themselves. They made no formal report of these incidents, which I find unsurprising. This is thus not a case where the defendant had knowledge of the danger posed by the ramp because of similar previous incidents.

Contributory negligence

164. Had I found that the plaintiff's fall had been caused by ice on the ramp, I would not have found her guilty of contributory negligence. I reject the proposition arising from Mr Gow's evidence that it was contributory negligence for her to walk from one part of Thredbo village to another carrying a bag with a shoulder strap, rather than wearing a backpack. I reject the argument that she should have made use of the balustrades to prevent herself from falling. Her evidence was that she had one hand on the balustrade as she slipped, and that by the time it occurred to her to grasp the balustrade, she was already flying through the air. The defendant failed to establish that the plaintiff was wearing inappropriate footwear. Indeed, it seems to me that footwear with a non-porous synthetic sole would have been adequate anywhere on the path, and probably anywhere in the village, except on the ramp in question. It was not suggested that the defendant provided any warning or advice to visitors about footwear, or recommended any particular type or quality of sole. None of the particulars of contributory negligence are made out.

Damages - provisional assessment

165. Although I am not satisfied that the plaintiff's case has been made out, it is appropriate that I assess the damages which I would have awarded had she succeeded. The plaintiff has a right of appeal against my decision, and the parties would be put to unjustifiable further expense and inconvenience if the plaintiff were successful on appeal and the evidence in relation to damages had to be taken again. Hence I embark upon the assessment of damages.

166. I accept that the plaintiff is an honest and truthful person, and that she did her best to give accurate evidence. As I have mentioned, I have some reservations about the reliability of her recollection about the events of August 1997. I have also mentioned that the plaintiff expresses herself with conviction, and does not present as a person who is a prey to indecision or self-doubt. In giving her evidence, she had a tendency to melodrama and to answering questions at considerable length, sometimes going beyond a response to the question asked. She was argumentative from time to time during cross-examination. She is clearly highly intelligent: she gave the impression in some answers of attempting to gauge where the course of the cross-examination was directed, and to deal with questions that had not yet been asked. These are not matters which necessarily reflect adversely on her credibility, but they are impressions I must take into account in evaluating her evidence.

167. I generally accept that the plaintiff has suffered since 1997 from constant pain, varying between moderate and severe, in the thoracic area of her back. I accept that she has suffered from pain in the lumbar area also. I accept Dr Billett's evidence that she probably suffered an injury of the lower lumbar region which led to nerve root irritation causing symptoms to the right side of the lumbar spine. I also accept Dr Billett's opinion that the plaintiff suffered a soft-tissue injury to the cervical spine in the fall. I accept Dr Billett's evidence that the plaintiff has developed degenerative arthritic changes above and below T7 which have been causative of continuing pain, and that this is likely to get worse rather than better in future years.

168. I accept the evidence of Dr McGrath that the plaintiff probably suffered damage to structures surrounding the T7 vertebra, which has not been diagnostically detected. Dr McGrath's evidence was that such damage heals much more slowly than a bone fracture, but is likely to resolve slowly over time. I prefer the evidence of the treating practitioners, Dr Douglas, Dr McGrath and Mr Sutton generally to that of the specialists who saw the plaintiff only for the purpose of specific opinions to Comcare. I found a piece of evidence from one of the Comcare doctors helpful: Dr Dewey, who has seen many patients over the years with T7 flexion fractures, explained that often the patient did not realise the extent of the injury initially, and that the symptoms often worsened in the ensuing two or three weeks. This would be consistent with the plaintiff being able to continue working in Thredbo for a day or so, and with her not seeking medical treatment until a week after the fall.

169. It follows that I find that to the extent that the plaintiff is suffering from chronic pain dysfunction syndrome, the pain is physically caused. I reject the opinion of the orthopaedic surgeons whose view can be summarised as saying that the only significant physical injury was the T7 fracture; that the fracture has healed; and that the continuing complaints must therefore be psychologically based.

170. I accept that the physical symptoms prevented the plaintiff from working for the hours, and with the intensity, which she had been able to manage before the accident, and that the pain and physical symptoms were the major cause of her depression. Whilst the depression was exacerbated by her husband's illness and her miscarriage, I am not satisfied that these events, which would have happened regardless of the plaintiff's injury, would have caused her depression or other psychological symptoms in its absence. I accept Dr Stern's opinion that the depression resulted in increased perception of the physical pain. I accept Dr Swift's opinion that the plaintiff's dysthymic disorder is likely to persist to some degree for as long as her chronic pain persists, but that it is capable of improvement if she finds enjoyable and rewarding work.

171. Dr Knox's initial opinion was that the plaintiff's impairment was predominantly physical, and that her depressed mood disorder comprised about 10 percent of her total impairment. He attributed the mood disorder as to 80 percent to her pain, and 20 percent to her husband's illness and infertility and her miscarriage. His later opinions were of less assistance because they were based on the assumption that the T7 fracture and accompanying soft-tissue injuries had recovered within a matter of months. Despite this, Dr Knox did not think that the plaintiff would have become psychologically unwell without her physical injury. He expects that her stress will be considerably reduced once the legal and compensation processes are over. He thinks that her depression and anxiety will reduce gradually over time, though not recover completely, particularly if her pain continues indefinitely.

172. The plaintiff has now suffered from chronic pain in the back for seven years. She had pain and restriction in the neck for some time, and despite Dr Billett's opinion, I attribute this to the fall. There is no suggestion that she had any neck symptoms before the fall, or that she would have developed any by now in the absence of the fall. I suspect that Dr Billett's contrary view reflects a difference between the legal and medical concepts of causation.

173. I have no doubt that much of the pain over the years has been caused by damage to structures surrounding the T7 vertebra, in accordance with Dr McGrath's opinion. I must accept his view that those symptoms will diminish over time as the structures slowly heal. At the same time, as Dr Billett explained, degenerative changes have occurred in the discs above and below the T7 vertebra, and arthritic changes will develop involving the vertebrae. These are likely to be productive of pain in the region permanently, and the pain, in Dr Billett's opinion, is likely to get worse.

174. I reject any suggestion that the plaintiff is suffering from compensation neurosis, and that she is likely to make a full recovery once this case is behind her. At the same time, I acknowledge that the case has been a considerable source of stress to the plaintiff, and that some improvement is likely once it is over. Fortunately she will retain her entitlement to Comcare in the future.

175. In addition to her chronic pain and her anxiety and depression, the plaintiff's damages must reflect the loss of her chosen career. She had done exceptionally well for a young radio and television journalist. She was only twenty-six at the time of the accident, after which she never really got back to the level of work she had been doing before. I accept that the loss of her career as an ABC journalist has been devastating for her, and must have been a contributing factor to her depression and other psychological problems. It is entirely a consequence of the fall. The quality of the plaintiff's life has changed beyond recognition. It seems to me that an appropriate figure to compensate her by way of general damages for pain and suffering and loss of enjoyment of life is $100,000. It is seven years since the injury, and statistically the plaintiff has some fifty years of life ahead of her. It seems to me appropriate to apportion the damages as to $40,000 for the past and $60,000 for the future. It is acknowledged on the plaintiff's behalf that she has received from Comcare a lump sum amount calculated according to a statutory formula of a little in excess of $40,000, and that in those circumstances the Court should not make any allowance for interest on the past component of the general damages.

176. The plaintiff's out-of-pocket expenses consequent upon the injuries she suffered in the fall have been met by Comcare. There were two Comcare schedules of payments in evidence, dated 28 April 2003 and 28 July 2003. The total of treatment expenses in the earlier schedule was $83,530.64, plus travel expenses of $8,572.24. By the date of the later schedule, medical expenses had increased to $85,512.94. There had been no change in the travel expenses. At the time of the earlier schedule, Comcare were holding accounts from Mr Sutton in the sum of $332 which had not yet been accepted for payment or paid. By the time of the second schedule, the unpaid accounts held by Comcare amounted to $1,684.94, including the amounts invoiced by Mr Sutton. Most of the balance was for car travel claims, with small amounts for home help and chemist expenses.

177. I am satisfied on the evidence that all of the accounts paid by Comcare represent expenses properly incurred by the plaintiff in respect of the consequences of her injury. I think I can reasonably infer from the fact that the plaintiff's expenses had increased over the 3-month period by some $3,350 that her outgoings are continuing at the rate of some $13,000 per annum. I recognise that this includes home help and gardening, which has been provided commercially, rather than gratuitously by family members. I allow $105,000 to cover past medical and other treatment expenses, travel, and home and gardening assistance. Because these expenses have all been paid by Comcare, I make no allowance for interest.

178. The plaintiff has not, for some time, required expensive medical treatment, but she needs to see her general practitioner from time to time. She requires both prescribed and over-the-counter medication, and she will need psychological counselling in the short to medium term. Rather than conducting a mathematical exercise, it seems to me that the assessment of an amount to compensate the plaintiff for future treatment expenses calls for the exercise of a broad discretion. I propose to allow $25,000, which includes an allowance for the cost of travel to and from her treatment providers.

179. She will have a continuing need for assistance in the house and garden. Thus far, her husband's condition has precluded him from providing much of this help, and it has been necessary to engage commercial providers. Dr Douglas is optimistic that the husband's condition will improve, enabling him to attend to more of the tasks around the house. This does not necessarily lead to any reduction in the damages recoverable, bearing in mind that it is the plaintiff's need for the services which gives rise to the entitlement for compensation, and the measure should be the same whether the services are provided gratuitously or at a cost. As against this, I remind myself that it is only those services required as a result of the plaintiff's injuries which are compensable, not any additional services which might be required because of the husband's medical condition. Again, a mathematical approach is not appropriate. It appears to me that an appropriate sum to compensate the plaintiff for her need for domestic services for the future is $40,000.

180. This brings me to loss of earning capacity. There was in evidence a set of figures prepared by Bandle McAneney and Co, Chartered Accountants, calculated up to 28 April 2003, showing the amount the plaintiff would be likely to have earned had she remained with the ABC before and after tax, and the amounts she had actually earned with the ABC and the University of Canberra. The figures separately show the amounts received by the plaintiff from Comcare, also before and after tax. The basis of the figures, although not admitted, was not seriously in contest. The figures assume that the plaintiff would have been earning $61,390 gross with the ABC in 1998, increasing to $73,995 per annum by 2002. On these assumptions, the plaintiff would have earned $278,163 after tax from 1 July 1997 until 28 April 2003 had she remained at the ABC. In fact she earned $57,384 net during the period. The actual earnings fluctuated considerably; I suspect that the plaintiff may have been somewhat over-compensated when working with the ABC, and under-compensated with the University of Canberra. I would allow the difference up to 30 April 2003 of approximately $220,000. I would allow an additional $45,000 for the period from 28 April 2003 to date.

181. Up to 28 July 2003, the plaintiff had received incapacity payments of $287,482.38 gross. The tax deducted from this amount by Comcare and remitted to the Australian Tax Office was approximately $80,000. It appears from this that the plaintiff's losses were broadly covered by the gross Comcare payments, so that she was actually out of pocket by an amount roughly equivalent to the tax. She is entitled to interest at commercial rates on the actual loss. The interest rates to be applied, pursuant to Practice Direction No 2 of 2001, are 10 percent up to 30 April 2001 and 9 percent thereafter. I allow $10,000 for interest on past loss of earnings.

182. The plaintiff would be obliged to refund to Comcare the gross sum it has paid by way of incapacity payments, although she has received only the net amounts, the balance having being deducted by way of tax. She would be entitled to recover as part of her damages the tax thus deducted, which I allow in the sum of $95,000.

183. In assessing an amount for loss of earning capacity for the future, I accept on the medical evidence that the plaintiff is presently able to manage 50 percent of a full load in her academic role. It is likely that she may be able to increase this over time to 75 percent of a full load. I must also accept that being unable to manage a full load, her employment options are and will remain greatly reduced. That fact that she can work 50 percent of a full load, and perhaps up to 75 percent, does not mean that she can look forward to earning 50 percent of what she could have earned at the ABC if not for her injuries, let alone 75 percent. Counsel for the plaintiff put forward figures justifying an award for future loss of earning capacity of almost $460,000, but I think that this was predicated on unrealistically pessimistic prospects for the plaintiff's future. I would allow $350,000.

184. There is also a claim for loss of superannuation benefits. Based on the allowances for loss of earning capacity, I would award $3,500 under this head for the past, plus interest of $1,000; and $30,000 for the future.

185. The individual components of the award are:

General damages $100,000.00

Medical and other treatment expenses, travel

and home and gardening assistance (past) $105,000.00

Treatment expenses (future) $25,000.00

Domestic services (future) $40,000.00

Loss of earnings (past) $265,000.00

Interest on past loss of earnings $10,000.00

Tax on Comcare payments $95,000.00

Loss of earnings (future) $350,000.00

Loss of superannuation benefits (past) $3,500.00

Interest on loss of past superannuation benefits $1,000.00

Loss of superannuation benefits (future) $30,000.00

Total $1,024,500.00

186. It appears to me on reflection that the total is properly proportionate to the losses suffered by the plaintiff as a consequence of her injuries. Had I found in her favour, I would have awarded damages of that amount.

Conclusion

187. The plaintiff having failed to establish her case on the balance of probabilities, there must be judgment for the defendant. The normal order as to costs would be that the plaintiff pay the defendant's costs. I shall provide the parties with an opportunity to make submissions should there be an application for some different order.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 23 June 2004

Counsel for the plaintiffs: Mr R L Crowe SC

Mr S R Hausfeld

Solicitor for the plaintiffs: Pamela Coward and Associates

Counsel for the defendant: Mr B J Salmon QC

Mr P A Walker

Solicitor for the defendant: Connery and Partners

Date of hearing: 28, 29, 30 April, 1 May, 21, 22, 23, 24, 25, 28, 29, 30 July 2003

Written submissions completed: 9 September 2003

Date of judgment: 23 June 2004