Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24 (5 March 2002)

Last Updated: 6 March 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24

FILE NUMBER(S):

40123/01

HEARING DATE(S): 13/02/02

JUDGMENT DATE: 05/03/2002

PARTIES:

Canterbury Municipal Council (Appellant/1st Cross-Respondent)

William Roy Taylor (Respondent/Cross-Appellant)

Christopher John Keogh (2nd Cross-Respondent)

Karen Benedet (as Executrix of the Estate of Franco Benedet) (3rd Cross-Respondent)

JUDGMENT OF: Spigelman CJ Ipp AJA Mathews AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20387/98

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL:

G F Little SC/N E Chen (Appellant/1st Cross- Respondent)

G B Hall QC/S Norton SC ( Respondent/Cross- Appellant)

K Dodd SC/H Silvester (2nd Cross-Respondent)

R C Tonner (3rd Cross-Respondent)

SOLICITORS:

Moray & Agnew (Appellant/1st Cross-Respondent)

Makinson & D'Apice (Respondent/Cross-Appellant)

Phillips Fox (2nd Cross-Respondent)

Bartier Perry (3rd Cross-Respondent)

CATCHWORDS:

Negligence - appeal - duty of care - local authority - occupier's liability - breach of duty - failure to take reasonable measures to prevent dangerous use of velodrome - voluntary assumption of risk - principles - apportionment of damages. D

LEGISLATION CITED:

DECISION:

See para 196.

JUDGMENT:

- 6 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40123/01

SC 20387/98

SPIGELMAN CJ

IPP AJA

MATTHEWS AJA

Tuesday 5th March 2002

CANTERBURY MUNICIPAL COUNCIL v WILLIAM ROY TAYLOR & ORS

FACTS

The appellant, Canterbury Municipal Council, owned and operated a velodrome with an inner field on which touch football was played. Mr Taylor, the respondent cyclist was training on the velodrome while a touch football match was being played simultaneously. Mr Benedet a touch football player stepped back onto the velodrome when the cyclists passed. He was struck by the respondent's bike and later died. The respondent suffered physical and psychological injuries resulting from the collision. Barr J, the trial judge, found that Canterbury Municipal Council had negligently caused the injuries suffered by the respondent. The trial judge also found that the respondent was guilty of contributory negligence, which he assessed at 50%.

The appeal

The Council appeals against his Honour's findings that it was negligent and that the respondent had not voluntarily accepted the risk of injury. The respondent cross- appeals against the finding that there was contributory negligence on his behalf and cross-appeals in respect of the amount of damages assessed.

At trial, the respondent sued Mr Keogh (2nd Cross-Respondent) in negligence in his capacity as the secretary of the Canterbury Bankstown Touch Football Association. The action against Mr Keogh was dismissed and the respondent cross-appeals this decision.

The respondent sued Mr Benedet's estate (3rd Cross-Respondent) alleging that Mr Benedet had negligently caused his damages. Barr J, dismissed the respondent's claim and the respondent cross-appeals against this decision. The respondent contends that the trial judge should have held that the second and third cross respondents were negligent and that the negligence of each combined with the Council contributed to the respondent's damages.

HELD

(i) Per Ipp AJA, Spigelman CJ and Mathews AJA agreeing

1 Dismissing the appeal

The Council as owner and occupier of the velodrome brought itself under a duty of care to touch football players and cyclists who played and trained in the Velodrome.

The Council, by agreeing to touch football being played on the inner field, by tacitly authorising the cyclists to use the Velodrome for practicing on Sundays and by promoting the Velodrome and encouraging persons to use it for cycling and touch football, came under a duty to take reasonable care to avoid injury to football players and cyclists.

(Australian Safeway Stores Pty Ltd v Zaluna (1987) 162 CLR, Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 and Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431) applied.

(Crimmins v Stevedoring Industry Financing Committee (1999) 200 CLR and Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 176 ALR distinguished)

Reasonable measures were available to prevent the simultaneous duel use of the Velodrome, including erecting official signs prohibiting such use, the placing of portable barriers or, directing council employees to monitor that such use did not take place.

(ii) Dismissing the appeal against the trial judge's finding there was no voluntary assumption of risk

It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists' path. He may well have believed that the footballers were quite capable of acting without negligence and would play their game in safety. These issues were not properly investigated at the trial. What evidence there was on this issue tends to support a finding that the respondent did not expect that the risk would materialise. A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers. The appellant did not prove the elements necessary to establish that the respondent voluntarily accepted the risk of negligence.

(iii) Dismissing the cross-appeal against the 2nd cross-respondent

The two principal factual findings made by the trial judge that led to the dismissal of the respondent's claim against Mr Keogh were open to his Honour. The trial judge's acceptance of Mr Keogh's testimony and conclusion that he did not know of the cyclists presence as well as the fact that Mr Benedet did not intended to walk across the track can not be challenged.

(iv) Upholding the cross-appeal against the 3rd cross-respondent.

It was obvious that there was a serious danger posed to touch football players by cyclists circling the track. Mr Benedet must have been aware that for his own safety and for the safety of the cyclists he had to ensure he stayed off the track Even though Mr Benedet's inattentiveness was momentary, his act in walking onto the track was negligent.

(v) Dismissing the cross appeal against the finding of contributory negligence.

It was obvious to the respondent that there was a game of football being played on the inner field. During his cycling of the Velodrome, before and during the warm-up, he had ample opportunity to observe what was occurring on the inner field. The trial judge's finding that the respondent's negligence directly correlated to his undertaking of a "dangerous pursuit", given the obviousness of the hazard, was correct.

(vi) The apportionment of responsibility for the respondent's damages

Having regard to the finding that Mr Benedet was negligent and his negligence contributed to the collision requires the Court to exercise its discretion in the apportionment of responsibility for the respondent's damages. 50% of the responsibility for the respondent's injury is apportioned to the appellant 25% to Mr Benedet and 25% to the respondent. On the basis of the said apportionment the award of damages will exceed the amount of the Calderbank offer requiring a new calculation to be made by the parties in respect of interest on damages.

(vii) The cross appeal in regard to the assessment of damages fails however as a consequence of the new apportionment of responsibility the award for damages made by Barr J is reduced by 25% rather than 50%.

Orders:

(1) Appeal dismissed.

(2) Cross-appeal upheld in the following respects:

(a) Set aside the orders made by Barr J in relation to the negligence of Mr Benedet and the liability to the respondent of Mrs Benedet as Executrix in the estate of the late Mr Benedet.

(b) Grant verdict and judgment against Mrs Benedet in her aforesaid capacity in favour of the respondent.

(c) Set aside the apportionment determined by Barr J and apportion responsibility on the basis of 50% in respect of the appellant, 25% in respect of Mr Benedet and 25% in respect of the respondent himself.

(3) Otherwise dismiss the cross-appeal and order that the respondent pay Mr Keogh's costs of the cross-appeal.

(4) Direct that the parties bring in an agreed minute of order reflecting the above and dealing with further costs orders and any variation that has to be made to the orders in regard to interest on damages.

(5) If no agreement as to the minute is arrived at within 21 days from date hereof, within 14 days thereafter the parties should file written submissions in respect of the issues that remain outstanding. Those written submissions should reflect the orders for which each party contends.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40123/01

SC 20387/98

SPIGELMAN CJ

IPP AJA

MATHEWS AJA

Tuesday 5 March 2002

CANTERBURY MUNICIPAL COUNCIL v WILLIAM ROY TAYLOR & ORS

Judgment

1 SPIGELMAN CJ: I agree with Ipp AJA.

2 IPP AJA:

The fatal accident

3 At about 9.35 am on Sunday 6 May 1990 a tragic accident occurred at the Tempe Velodrome, a banked concrete cycle track that surrounded a level grassed field suitable for playing touch football.

4 On the morning in question a group of cyclists, including the respondent, were using the cycle track to perform a "warm-up". This consisted of twenty laps during which the speed of the cyclists was steadily increased while they rode in single file at a distance of a few centimetres from each other. At the same time as the cyclists were performing the warm-up, a touch football game was being played on the inner field.

5 One of the touchlines of the touch football pitch was no more than about two metres from the inner edge of the cycle track. This meant that, as the cyclists circled the inner football field, they were at times in very close proximity to the players.

6 At 9.35 am the siren for half time in the touch football game sounded and the players stopped playing. The football players moved towards the touchline. At that stage the cyclists, who had completed about 17 laps, had reached a speed of about 55 kilometres an hour. One of the football players, Mr Franco Benedet, thereupon walked on to the track into the path of the oncoming cyclists.

7 The first two cyclists managed to avoid Mr Benedet but the third cyclist, the respondent, did not. His cycle struck Mr Benedet, who fell to the ground. Mr Benedet's head struck the concrete surface of the cycle track. He suffered serious injuries and, within a short period, died.

8 The respondent fell from his bike and he too struck the cycle track. He lost consciousness. On recovering he found himself lying near Mr Benedet who was unconscious, bleeding profusely and having difficulty breathing. The respondent suffered some minor physical injuries. He grazed an arm, had a sore knee, hip, neck and back. He had a bad headache. More importantly, however, the experience had a significant effect upon his psychological health.

The parties, the claim and cross-claims, the appeal and cross-appeals

9 The appellant owned, occupied and effectively controlled the Velodrome. Both the respondent and Mrs Benedet (as the executrix of the late Mr Benedet's estate) sued the appellant, alleging negligence on its part. Mrs Benedet's action was settled but the respondent's action proceeded. The trial judge, Barr J, upheld the respondent's claim against the appellant, and the appellant appeals against his Honour's decision. The respondent cross-appeals in respect of the amount of damages assessed.

10 At the time of the accident, Mr Benedet was playing for a Canterbury Bankstown Touch Football Association team. Mr Christopher John Keogh was the secretary of the Association and he, too, was sued in negligence by the respondent. The action against Mr Keogh was dismissed. The respondent cross-appeals against this decision.

11 The Canterbury Bankstown Touch Football Association was affiliated to the New South Wales Touch Association, a body that controlled touch football in this State. The respondent sued the latter Association and Barr J dismissed the respondent's claim. There is no cross-appeal against this decision.

12 The respondent sued Mr Benedet's estate, alleging that Mr Benedet had negligently caused his damages. Barr J dismissed the respondent's claim and the respondent cross-appeals against this decision.

13 The respondent also sued Mr Glen Trudgett, the lead rider at the time of the accident. Barr J dismissed this claim and there is no cross-appeal against this decision.

14 Several of the defendants made cross-claims against each other. The cross-claims were dismissed and there is no cross-appeal in respect of any of these decisions. It is therefore not necessary to refer to them further.

15 The trial was heard over sixteen days. As mentioned, Barr J found that the appellant had negligently caused the injuries suffered by the respondent. He rejected the appellant's argument that the respondent had voluntarily assumed the risk of injury. He held that the respondent was guilty of contributory negligence which he assessed at 50%.

16 Barr J assessed general damages at $80,000, past economic loss at $97,300, future economic loss at $236,370, awarded $8,000 for out-of-pocket expenses and made an award for superannuation benefits. His Honour awarded interest on general damages and future economic loss and included an allowance for interest on the $8,000 awarded for out-of-pocket expenses. The damages assessed totalled $513,143. These had to be reduced by 50% in the light of his Honour's finding as to the extent of the respondent's contributory negligence. On the basis of the findings of Barr J, the respondent became entitled to $256,571.50.

17 A Calderbank offer of $260,000 plus costs and disbursements incurred to the date of acceptance had been made on behalf of all of the defendants. Barr J allowed interest to the date of the offer (12 November 1999) and directed the entry of a verdict and judgment for the respondent against the appellant in the sum of $256,571.50.

18 His Honour ordered the appellant to pay the respondent's costs up to the date of the Calderbank offer and made no order as to costs in the respondent's claim against the appellant incurred thereafter.

19 Barr J directed the entry of a verdict and judgment for each of the other defendants against the respondent and ordered the respondent to pay their costs. Each cross-claimant was ordered to pay the costs of each relevant cross-defendant.

20 In the appellant's appeal against the entry of a verdict and judgment for the respondent, the appellant contends that Barr J erred by holding that:

(a) it owed the respondent a duty of care;

(b) it had breached that duty of care;

(c) the breach caused the respondent to suffer damages;

(d) the respondent had not voluntarily accepted the risk of injury.

In addition, the appellant argues that his Honour should have ordered the respondent to pay the appellant's costs after the making of the Calderbank offer.

21 The appellant, Mr Keogh and Mrs Benedet (as the executrix of Mr Benedet's Estate) are cross-respondents to the cross-appeal. In the cross-appeal the respondent contends that Barr J erred in the following principal respects:

(a) He should have held that Mr Keogh and Mr Benedet were each negligent and that the negligence of each, together with that of the appellant, contributed to the respondent's damages.

(b) He should have held that the respondent was not guilty of contributory negligence.

(c) He erred in his assessment of damages.

(d) He should have ordered the appellant to pay the whole of the respondent's costs and the costs of the successful defendants.

The appellant's occupation and control of the Velodrome

22 The appellant owned the Velodrome and had vested control and management of the facility in a Management Committee appointed by it. Clause 4.1 of the constitution of the Management Committee provided that the Committee, on the appellant's behalf, would perform various "powers, authorities, duties and functions" in respect of the Velodrome. These included the power and duty "to have the care, control and management of the premises".

23 Despite the delegation of powers to the Management Committee, the terms of the constitution of the Management Committee allowed the appellant to maintain close control over the management of the Velodrome. Clause 2.4 entitled the appellant to dissolve the Committee at any time and cl 4.2 provided that the appellant had the right to veto any decision of the Committee.

24 The appellant was very much concerned with the day-to-day management of activities at the Velodrome. The Velodrome was set in an area called Waterworth Park and in this area, adjacent to the Velodrome, were parklands that were used for touch football. Two groundsmen employed by the appellant were stationed in Waterworth Park between Monday and Friday each week. They performed duties in regard to the Velodrome. Additionally, rangers employed by the appellant would visit the Velodrome intermittently at various times during a seven day week and inspect the premises.

25 The groundsmen and rangers were under the management of the secretary of the Management Committee, Mr Gary Jenkins, a civil engineer in the employ of the appellant. Mr Jenkins was the appellant's parks' manager at the time and he was the officer who bore ultimate responsibility for security and safety at the Velodrome. Employees of the appellant concerned with security and safety reported to him in respect of these matters.

26 The appellant attempted to derive sufficient income from the Velodrome to make it economically viable. This aim was expressly recorded in clause 4.9 of the constitution of the Management Committee which provided:

"The operation of the Velodrome shall be, as far as possible, be [sic] conducted in a manner to ensure that the Velodrome is financially viable".

27 The principal purpose of the Velodrome was to promote the sport of cycling. The Velodrome was built in 1982 as a "cycling purpose track". It had been constructed to Olympic standards and was the only venue of its kind in the State. In Australia, cycling is largely a summer sport and Mr Jenkins explained that the appellant and the State Government "wanted to make sure that there was some use of the facility in winter so at the time it was being designed there were other uses looked at." Amongst those other uses was touch football.

28 In order to obtain income from the Velodrome, the appellant allowed it to be used (for a charge) by various cycling associations and other sporting groups. The latter included touch football associations.

29 Although, as I later note in more detail, the appellant allowed individuals to train at the Velodrome without charge, the appellant usually required those who used its facilities to pay a fee for such use.

30 Barr J found:

"The [appellant] was conducting a sporting facility which in many ways was not unlike a commercial business carried out for the same purpose. Its purpose, apart from promoting the sports which might be carried on [at the velodrome], was to derive income from the facility. It encouraged members of the public to use it."

There is no challenge to these findings.

The appellant's duty of care and the breach thereof: the issues

31 In his statement of claim the respondent alleged that the appellant owed him a "duty of care". He did not particularise the scope of that duty but gave particulars of the appellant's breach of that duty. The breaches were said relevantly to be:

"(a) Failing to provide fencing, barricades or other proper means to prevent access to the cycling track from the centre field;

(b) Failing to prohibit the conduct of two sporting events at the one time at the velodrome;

(c) Failing to exercise any or any proper control over the activities at the velodrome;

...

(g) Failing to provide supervision of entrance and activities within the Canterbury Velodrome;

(h) Failing to ensure that exclusive use of the velodrome was given to either the cyclists or the touch footballers;

...

(j) Failing to erect signs warning participants in the touch football game not to attempt to cross the cycle track while it was in use;

..."

32 The duty of care was said to arise out of the appellant's occupation, control and management of the Velodrome.

33 Barr J regarded the guiding principle in the case to be that stated by Mason J in Sutherland Shire Council v Heyman [1985] HCA 41; (1984-5) 157 CLR 424 at 459-461. In essence, his Honour held that the appellant owed a common law duty of care to prevent harm to those using the facilities of the Velodrome. He said:

"[The appellant] knew or ought to have known that if it failed to control the use of the Velodrome and thereby allow cycling and touch football to proceed simultaneously, there would be a risk of harm to those engaged in those sports. In my opinion, the council had a duty to prevent that harm. Parramatta City Council v Lutz (1988) 12 NSWLR 293; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330."

34 His Honour held that there had been no delegation by the appellant to the Management Committee of its duty to act reasonably towards users of the Velodrome, especially where they encountered the danger of injury because of simultaneous dual use. He pointed out:

"The Committee had no authority to manage events, for example, by erecting signs and barriers and directing the movement of people. It had no authority to commit the [appellant] to spending money on measures of control."

There is no challenge to these findings.

35 The appellant's main argument as to the existence of a duty of care was that the circumstances of this case were novel and that the issue of duty should be determined by reference to the questions set out by McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at 39. Mr Little SC, (who, together with Mr Chen appeared for the appellant) submitted that the respondent was not a vulnerable person in the sense referred to by McHugh J in Crimmins v Stevedoring Industry Finance Committee and could reasonably be expected to safeguard himself from harm. He submitted that, in any event, the appellant had no duty of care to the respondent as, it was argued, he was using the facilities unlawfully. He submitted, further, that the appellant owed no duty to the respondent to control the actions of Mr Benedet (who, it was argued, was a third party in the sense referred to in Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; [2000] 176 ALR 411).

The findings as to the appellant's knowledge of the activities performed at the Velodrome on 6 May 1990

36 Barr J found that, by reason of a conversation that took place early in 1990 between Mr Keogh and Mr Smail (the appellant's booking officer), the appellant knew that touch football matches would be played on the inner field of the Velodrome on and after 29 April 1990. His Honour held that, by reason of what was said in that conversation, Mr Keogh and the organisation he represented were entitled to use the inner field on 6 May 1990.

37 In regard to the use of the Velodrome by cyclists, Barr J found that, although the cycle track season had ended before 29 April 1990, the appellant was aware that cyclists continued to use the track thereafter. His Honour said:

"Mr Jenkins knew that cyclists often used the track and that on any given day it was highly probable that one or more cyclists would be using the ground for training."

38 Mr Little submitted that the findings by Barr J that the appellant had agreed to the Canterbury Bankstown Touch Football Association using the Velodrome on 6 May, 1990, that it knew that touch football was going to be played on the Velodrome on that day, and that it knew that there was a risk of cyclists using the track simultaneously with the playing of touch football on that day, were wrong.

39 The challenge mounted by the appellant to the finding that it owed a general common law duty of care to the respondent depends largely on the factual findings made by his Honour concerning the appellant's knowledge of the activities that were performed at the Velodrome on 6 May 1990. I turn now to those findings.

The appellant's knowledge that the Velodrome was to be used on 6 May 1990 for touch football

40 The respondent's case that the appellant knew in advance that touch football was to be played at the Velodrome on 6 May 1990 rested largely on the evidence of Mr Keogh. The evidence of Mr Smail (the appellant's booking officer) to some extent was in conflict with that of Mr Keogh. Barr J preferred the evidence of Mr Keogh and held:

"It seems clear to me that the [appellant] became aware early in 1990 following the conversation between Mr Keogh and Mr Smail that the Canterbury Bankstown Touch Association would be holding its matches at Tempe, including on the inner field, from the commencement of the forthcoming season".

41 The appellant challenged this finding. Mr Little submitted that there was inadequate evidence to support the finding that Mr Keogh had agreed with Mr Smail that his association would use the Velodrome on 6 May 1990. He submitted further that the documentary evidence supported Mr Smail and was inconsistent with Mr Keogh's version, and that Barr J had given inadequate reasons for preferring Mr Keogh to Mr Smail.

42 I shall deal firstly with the adequacy of the evidence supporting the finding that Mr Smail agreed with Mr Keogh that the Canterbury Bankstown Touch Football Association could use the Velodrome for touch football on 6 May 1990.

43 Mr Keogh testified that early in 1990 he had a telephone conversation with Mr Smail in which Mr Smail agreed that the Canterbury Bankstown Touch Football Association could use the Velodrome for the entire winter season, commencing Sunday, 29 April 1990. Shortly after that conversation, Mr Smail sent out permits to Mr Keogh relating to the bookings that had been made but, initially, Mr Keogh did not look at them.

44 The permits in fact issued by Mr Smail after his telephone conversation with Mr Keogh early in 1990 were not for the use of the Velodrome, save for the semi finals and final of the touch football competition on 23 and 30 September 1990, respectively. Mr Smail did issue other permits but these were for the use of Waterworth Park, and not the Velodrome. The issuing of permits in these terms is strong evidence of Mr Smail's belief as to the terms of the authority he gave to Mr Keogh during the telephone conversation in question.

45 In the belief that he had obtained Mr Smail's authority to use the Velodrome for touch football on 29 April 1990, Mr Keogh arranged for matches to take place there on that day. Consequently, on that morning, three touch football matches were held on the inner field at the Velodrome.

46 At the same time, a group of cyclists, including the respondent, trained on the cycle track. There was a collision or a near miss between a cyclist and a person who walked on the track. Mr Keogh walked across and spoke to the cyclists. He remonstrated with them and told them they should not be there. He informed them that his association had booked the ground and that it should not be used for cycling while touch football was being played. Barr J described the attitude of the cyclists as being: "This was a Velodrome and the footballers should not be there at all." The conversation became heated.

47 Mr Keogh's conduct on 29 April 1990 is strong evidence of his belief as to the terms of the authority earlier given to him by Mr Smail. There was a direct conflict between Mr Keogh and Mr Smail on this issue.

48 The following was part of Mr Keogh's evidence in chief:

"Q: In early 1990 when you foresaw that you would need grounds to be booked for the 89/90 winter competition, did you speak to somebody at the Council about making the booking?

A: Well, yes, I guess I would have. The system was that I always approached Council at the commencement of the previous season and before the start of the next season, and we found out where we were to play the following upcoming season, and once that was allocated, I would then speak to the park booking officer and make arrangements for the dates that we would actually commence playing and continue to play."

49 Later, the following was said:

"Q. Do you recall a conversation with anybody at the Council in which you nominated that you wanted to use both the inside field and the outside fields?

A. Yes, I would have spoken to Warren Smail about that.

Q. You say, `I would have', do you remember the terms of the conversation, what was said?

A. Well, I can't remember obviously the exact terms that would have been said, but I would have either gone to see Warren personally or rung him up on the phone, if I wasn't in the area, and given him the dates we wanted to commence and obviously to finish the competition and what fields we would be using for that coming season".

50 Mr Little submitted that the use by Mr Keogh of the phrase "would have" indicated that Mr Keogh was reconstructing his evidence and was not testifying as to what in fact had been said. This, however, was a matter essentially for the trial judge. It was open to his Honour to come to a conclusion of the kind contended for by Mr Little. It was also open to him to conclude that the witness intended to convey that he did not recall the exact words spoken at the time and was using the phrase "would have" to indicate merely that he was recounting more or less the words that were used. It is apparent that the judge decided on the latter course and he was entitled to do so.

51 In cross-examination, Mr Keogh denied that, in the telephone conversation with Mr Smail, he had only booked the Velodrome for the semi finals and the final of the touch football competition. He said that he did not check after 29 April 1990 whether he had a booking because he assumed (from what had taken place between Mr Smail and himself) that he had made a booking. He said that he could not understand how the permits that Mr Smail issued showed the Velodrome booked only for 23 and 30 September. He accepted that there might have been some confusion between him and Mr Smail about the dates.

52 The following evidence from Mr Smail himself, given in cross-examination, supported Mr Keogh's version:

"Q. For the 1990 winter season didn't [Mr Keogh], in a conversation with you in about January or February 1990 or thereabouts, say that he wished to book the Velodrome and all the fields of Waterworth Park and Gough Whitlam Park for the 1990 --

A. Yes, I think so".

53 Moreover, Mr Smail agreed that in the conversation with Mr Keogh in early 1990 he made it clear to Mr Keogh that:

"basically the ground would be made available to him on the occasions that he wanted to use it".

54 In my opinion, contrary to the submissions advanced on behalf of the appellant, there was adequate evidence to support the finding of Barr J that Mr Keogh had obtained the requisite authority from Mr Smail to entitle the Canterbury Bankstown Touch Football Association to use the Velodrome for touch football on 6 May 1990 (and, hence, the appellant knew that the Velodrome would so be used on that date).

55 I turn next to the appellant's submission that the documentary evidence supported Mr Smail and was inconsistent with Mr Keogh's version. Mr Little submitted that the permits first issued by Mr Smail constituted documentary evidence supporting Mr Smail's version. He also referred to a contemporaneous memorandum that Mr Smail made of his conversation with Mr Keogh in which no mention was made of a booking in the terms to which Mr Keogh testified.

56 The permits in fact issued by Mr Smail do not establish conclusively that Mr Keogh's evidence was incorrect. Those permits certainly support Mr Smail's testimony, but they are explicable on the basis that Mr Smail merely made an error. It remained open for the trial judge to disbelieve Mr Smail and believe Mr Keogh.

57 As regards Mr Smail's memorandum, it omitted other matters that, according to Mr Smail, were discussed between him and Mr Keogh. Accordingly, the memorandum cannot be regarded as a complete record of the conversation.

58 Mr Keogh said that, after the collision, he looked for the first time at the permits that Mr Smail had issued and noticed that they did not relate to the use of the Velodrome on 29 April and 6 May 1990. He then telephoned Mr Smail and asked him to issue permits retrospectively for those days. After discussing the matter with the appellant's insurer and with Mr Alan James Russell, the appellant's personnel and safety officer, Mr Smail agreed to do what Mr Keogh had asked and retrospective permits were issued. This is a further piece of evidence that tends to support Mr Keogh's version.

59 It is to be noted that, after his telephone conversation with Mr Keogh on 8 May 1990, Mr Russell made a file note to the effect that in that conversation Mr Keogh said that he had booked the Velodrome playing field for "both weeks".

60 I do not accept the appellant's submissions as to the effect of the documentary evidence. As I have pointed out, that evidence was not conclusive and in the light of all the evidence, it was readily open to Barr J to believe Mr Keogh in preference to Mr Smail.

61 Mr Little referred to remarks of Barr J to the effect that the permits first issued by Mr Smail "permitted use only of grounds in Waterworth Park". He submitted that this showed an error in approach as Mr Smail also issued permits for the Velodrome on 23 and 30 September 1990.

62 Barr J may have been dealing only with the issuing of permits that covered the relevant dates, namely 29 April and 6 May. In any event, even if he did make an error, it was not material.

63 Lastly, on this issue, Mr Little submitted that Barr J gave inadequate reasons for believing Mr Keogh in preference to Mr Smail.

64 I do not accept this submission. The principal grounds on which his Honour relied are quite apparent from his reasons. His Honour commenced his discussion on this aspect with a reference to Mr Smail's acceptance of the proposition that there was a conversation between him and Mr Keogh at the beginning of 1990 in which Mr Keogh told him that he wished to book all the fields on behalf of the Canterbury Bankstown Touch Football Association for the "forthcoming touch football season". That conversation detracts from the probative force of Mr Smail's failure to issue permits for 29 April and 6 May and the other evidence of Mr Smail that was inconsistent with Mr Keogh's testimony. Barr J also noted that after the accident Mr Smail had "in due course issued permits dated 10 May 1990 authorising the use of the inner field on [23 and 30 September 1990]". This supported Mr Keogh's version. Additionally, it is apparent that his Honour formed his own view of the credibility of the witnesses and took that into account in believing Mr Keogh in preference to Mr Smail. All these matters formed the basis for the view formed by Barr J.

65 The first four grounds of appeal concern the matters dealt with under this heading and, for the reasons set out, I would dismiss them.

The appellant's knowledge that the Velodrome was to be used by cyclists on 6 May 1990 and their authority so to use it

The findings of Barr J and their significance

66 Barr J was satisfied that the appellant knew that "there was frequent unauthorised use of the cycle track". His Honour found that "unauthorised persons used the cycle track from time to time and that on at least one occasion there had been unauthorised use of the inner field". He held, in effect, that the appellant knew that, whenever the gate to the Velodrome was open, cyclists could - and were likely to - use the cycle track. Such use included use on Sundays.

67 Despite the fact that there was no ground of appeal directed specifically to these findings, Mr Little challenged them and the issues raised by his arguments were fully ventilated. The respondent supported these findings and contended further that, generally, and in particular on 6 May 1990, the cyclists' use of the Velodrome was tacitly authorised by the appellant.

68 Mr Hall QC (who together with Ms S Norton SC appeared for the respondent) submitted that Barr J had erred in finding that the cyclists' use of the track after the termination of the summer cycling season was unauthorised. This issue was relevant both to the question whether the appellant was negligent and whether the respondent was guilty of contributory negligence.

69 As regards the negligence of the appellant, Mr Little submitted that the unauthorised use of the track by the cyclists was one of the factors which brought the circumstances of the accident into the "novel" category referred to by McHugh J in Crimmins v Stevedoring Industry Finance Committee. He also relied on Barr J's finding in this respect to argue that the appellant owed no duty of care to unauthorised third parties.

70 As regards the contributory negligence of the respondent, Barr J said:

"I think that it was obvious to the [respondent] that the cycling track season was over and the touch football season had begun. Any use of the track was therefore likely to give rise to quite different consequences because of the proximity of footballers who were likely to be giving their undivided attention to their sport in close proximity to the riders".

These findings were taken into account by his Honour in determining whether the respondent was guilty of contributory negligence and the degree thereof.

71 His Honour's finding that the appellant had not authorised the cyclists' use of the track for training purposes after the summer season had ended was based on inference. The factual findings from which the inference was drawn did not rest on issues of credibility. This Court is in as good a position as was his Honour in determining the factual questions involved in this issue. It is open to this Court to make its own findings in these respects.

The course of conduct in regard to the use of the track for training purposes

72 Over the years, the appellant had issued several keys to the Velodrome and the control over those keys had been lax. Some keys had been lost and there was an incomplete record of who had received keys. The keys were used by unauthorised persons, including cyclists, to gain access to the Velodrome for the purposes of using the track.

73 Mr Smail said that, as long ago as 1984, the appellant had issued 13 keys and had recorded that two had been lost. By 1988 the appellant had exhausted its supply of keys.

74 Mr Smail agreed that, well before 1990, he had realised that because the appellant had issued keys to so many different people it was "difficult to police unauthorised use". He knew that organisations to which keys had been issued might use the venue without authority.

75 A memorandum by Mr Smail dated 8 May 1990 referred to the difficulty of policing the unauthorised use of the amenity and the appellant was aware that there were problems in preventing cyclists practising on the Velodrome track without express authority having been granted to them.

76 Mr Jenkins testified that from the inception of the existence of the Management Committee the appellant issued keys to the gate to various organisations. These included the New South Wales Touch Football Association, the New South Wales Cycling Federation and the Bankstown Sports Cycle Club. He knew that keys were distributed to various cycling organisations that used the grounds and these organisations would open the grounds and let their members use the Velodrome.

77 Mr Kenneth James Crawford was the general manager of the New South Wales Touch Association. This association had its headquarters in the grandstand situated at the Velodrome. Mr Crawford was at the Velodrome on a daily basis, Mondays to Saturdays. He said that he saw cyclists frequently train on the track. They would be there early in the mornings and "later in the day". He agreed that, until 6 May 1990, "cyclists appeared to have pretty well unrestricted access to the Velodrome if they wanted to train on it".

78 Mr Jenkins agreed that prior to 6 May 1990 he was aware that cyclists used the track for training without booking it. The groundsmen had told him this and he, himself, had seen it happen. He had also received a report on one occasion that there had been casual use of the football field.

79 In the course of Mr Jenkins' cross-examination the following was said:

"Q. You were aware, weren't you, that cyclists used the ground for training all the time?

A. Sometimes, yes.

Q. I suggest to you when you say that, you knew that at any given day it was highly probable than [sic-not] that one or more cyclists would be using this ground training?

A. Yes.

Q. And so as a matter of probability on any given day whether or not there was an activity being conducted by the cyclists if he had raced, it was probable, more probable than not that one or more cyclists would go to the ground and train on it.

A. Yes".

80 At one point in his cross-examination Mr Jenkins sought to distance himself from knowledge that cyclists might use the track on weekends, but this was not convincing. He said that he knew that cyclists trained during the winter months (after the summer track season had ended) with a view to going overseas to compete there. He was aware that leading professionals and amateur cyclists trained every day and, as I have noted, he accepted that on any given day it was probable that one or more cyclists would be using the Velodrome for training.

81 A fence surrounded the Velodrome and, ordinarily, the gate in the fence was padlocked. Nevertheless, Mr Geoffrey Clifton Stoker (one of the cyclists in the group that was riding on the track on 6 May 1990) testified in his evidence in chief that he had been going to the Velodrome for training every Sunday morning for six months prior to the collision and never had any trouble in obtaining access to the Velodrome. Mr Stoker said that the gate was always open when he arrived on Sunday mornings. No person ever told him that he was not authorised to use the Velodrome on Sundays.

82 Mr Trudgett gave similar evidence to Mr Stoker concerning the use of the Velodrome by cyclists. He had cycled at the Velodrome on Sundays for four to five months prior to the collision and no one had suggested to him that he was not entitled to do so. He appeared to have had no difficulty in gaining access to the cycle track.

83 Both Mr Stoker and Mr Trudgett said in cross-examination that, although they had confined their evidence in chief to a period of some months before the collision, each had followed the practice described for several years.

84 The respondent had begun training at the Velodrome early in 1990. At that time he was invited to join a group of riders, described as an "elite group," who frequently trained at the Velodrome. Since early in 1990 the appellant had attended training sessions at the Velodrome on weekends, sometimes on Saturdays, sometimes on Sundays. Usually, there was a group of four or five cyclists using the track on those occasions. The respondent testified that, if the gate was not open, the cyclists would wait for an employee of the appellant to arrive and he would open it. His evidence in these respects was not challenged in cross-examination.

85 On the morning of the collision, the respondent arrived at the Velodrome at between 8 am to 8.30 am and entered through the gate, which was open. This was in accordance with the course of conduct that had been established.

86 Mr Jenkins said that the track was generally locked at weekends and used only by persons who had booked it.

87 Nevertheless, Mr Jenkins was aware that cyclists used the track for training without having made any booking. I have referred above to Mr Jenkins' evidence that cyclists trained during the winter months and that on any given day it was highly probable that one or more cyclists would be using the Velodrome for training.

88 The evidence of Mr Jenkins referred to in the preceding paragraph was entirely consistent with that given by Mr Stoker, Mr Trudgett and the respondent. It was apparent from their testimony that, for a period of months and even years, over weekends the cyclists would enter the Velodrome through an open gate and use the track for training purposes. It was not put to them that their testimony in this respect was false (and it was not otherwise contradicted). In my view, this evidence must be accepted.

89 As is apparent from the evidence of Mr Jenkins, the appellant knew of the practice described and did nothing to prevent it. Indeed, the appellant facilitated the practice through its employees who from time to opened the gate (as the respondent testified).

90 In my opinion, the evidence established that by the time of the collision a course of conduct on the part of the appellant and the cyclists had arisen whereby the appellant would allow cyclists to train at the Velodrome on any day of the week (including in the winter months), without bookings and without charging them fees. Although the Velodrome was generally locked over weekends, the cyclists would gain access to the Velodrome through the gate in the fence surrounding the ground. Usually the gate was open when the cyclists arrived. Sometimes, the gate was opened for them by the appellant's employees.

Conclusions as to the cyclists' authority to use the Velodrome for training purposes and the appellant's knowledge of use

91 Barr J drew the inference that the cyclists had no authority to use the Velodrome after the summer track season from two principal factual findings that he made. Firstly, he found that there was no cycling season in the winter months and, on the day of the collision, it should have been obvious to the respondent (and cyclists, generally) that "the cycling track season was over and the touch football season had begun". Secondly, he found that the cyclists did not pay for their casual use of the track in the winter months and it was the appellant's policy to require users of the Velodrome to pay fees for using the track.

92 I turn firstly to the finding that there was no cycling season in the winter months and the inference that flows from this.

93 Significantly, Mr Jenkins accepted that there was a "track season" for cyclists, followed by a "riders' season". He accepted that the track season was in summer and the riders' season was in winter. Even if it be assumed that Mr Jenkins was mistaken (and no party suggested to him that he was) - and there was no such thing as an official "riders' season" - his evidence, generally, provides strong support for the proposition that after the summer cycle track season ended, many cyclists continued cycling training in Australia.

94 In any event, as I have noted, there was ample evidence from others that, after the close of the summer season, cyclists continued to train in this country for races that were to take place at a later time in Europe. Contrary to the finding of Barr J, it was accepted by all the witnesses who had knowledge of the issue (including Mr Jenkins) that, while cycle track competitions ended at the close of the summer track season, many cyclists continued their training on their own - hence Mr Jenkins' use of the term "riders' season".

95 In the light of the course of conduct I consider to have been established, no inference as to lack of authority can be drawn from the facts that the cycling track season had ended and the respondent should have known that that season was over and the touch football season had begun.

96 I turn to the second matter relied on by his Honour, namely, that it was the appellant's policy to require users of the Velodrome to pay fees for their use.

97 It was not until 11 October 1990 that the appellant resolved to restrict access to the Velodrome track to cyclists registered with the Australian Cycling Federation and to charge a fee for use.

98 The inference from the evidence as a whole is that fees were not ordinarily charged to cyclists for the use of Velodrome for training purposes. There was no requirement for cyclists to book for casual use of the Velodrome and it was only through bookings that fees were collected. In the circumstances the fact that cyclists did not pay for training on the track does not imply that they were not authorised to use the track.

99 I consider that the following facts tend strongly to establish that the use of the track by cyclists after the summer season had ended was tacitly authorised by the appellant:

· As Barr J found, there was frequent use of the cycle track by training cyclists throughout the year for training purposes; these cyclists paid no fees for their use.

· Over weekends throughout the year, the gate to the Velodrome was usually left open for the cyclists and on the occasions that it was not, the appellant's own employees would open the gate for the cyclists.

· The appellant's employees must have known, when opening the gate for the cyclists, that the cyclists intended to gain access for the purposes of training on the track.

· Mr Jenkins, himself, knew that cyclists used the track for training purposes virtually daily, without booking and without paying any fee.

· Nothing was said to the cyclists that they were not authorised or permitted to use the track.

· As Barr J found, the appellant encouraged members of the public to use the Velodrome.

· The appellant took pride in the fact that champion cyclists had trained (apparently in the abovementioned way) at the Velodrome.

100 Further, it seems plain that, in the circumstances, cyclists were led to believe that they were authorised to use the Velodrome for training purposes, even when they had made no booking, had paid no fees and were using the track on Sundays. In this regard it was put to Mr Jenkins:

"If a cyclist arrived, for example, and the gates were open and the cyclist went in and began to use the track with other cyclists you would concede, would you not, that because of the course of conduct conducted by the Council in handing out keys to persons other than Council staff, the cyclists would be entitled to assume that Council had authorised gates to be open".

Mr Jenkins made the concession sought.

101 Later, Mr Jenkins agreed that, if on weekends the gate were to be open, cyclists coming to the Velodrome would assume that the appellant had authorised them to train on the track.

102 In all these circumstances, I consider that, at the date of the collision, the course of conduct that had arisen conferred tacit authority upon cyclists to enter the Velodrome over weekends when the gate was open and to train on the cycle track.

103 A corollary of this finding is that, on the date of the collision, the respondent believed that the cyclists' use of the track had been authorised by the appellant. The respondent's evidence was to the effect that he had such a belief, such a belief was consistent with the course of conduct that had arisen and was recognised as likely by Mr Jenkins.

The dangers of simultaneous activities being conducted in the Velodrome

104 The Velodrome cycle track was one third of a kilometre in length and was constructed in concrete to Olympic standards.

105 A tunnel led from a point outside the cycle track to the inner field. One could therefore walk to the inner field without crossing the track.

106 The outer perimeter of the cycle track was fenced but there was no fence between the inside of the track and the inner field. Such a fence would have been dangerous to cyclists.

107 Mr Jenkins conceded that he was aware that it would be highly dangerous to have touch football and cycling take place in the Velodrome at the same time and agreed that the appellant knew this.

108 The dangers of simultaneous dual use of the Velodrome by touch footballers and cyclists were self-evident. Barr J said in this regard:

"The [appellant] must have realised that, though it might permit only one use of the stadium at a time, there was a constant risk of dual use in practice by the entry by unauthorised persons. The [appellant] knew that whenever the gate was open, such a thing could happen and was likely to happen. I think that the [appellant] did know of the risk".

I agree with these views but would point out that, in my view, the cyclists were not "unauthorised persons".

The duty of care owed by the appellant to the respondent

109 I have concluded that:

· Barr J was entitled to find that the appellant had agreed to allow the Velodrome to be used for touch football on 6 May 1990.

· Barr J was correct in finding that, at the date of the collision, the appellant knew that there was a constant risk of cyclists entering the Velodrome with the purpose of training on the cycle track.

· The appellant knew that whenever the gate was open, such use could happen and was likely to happen.

· By a course of conduct, the cyclists were tacitly authorised by the appellant to use the Velodrome for training purposes.

· The appellant knew or should have known that on 6 May 1990 there was a serious risk of touch football and cycling taking place simultaneously at the Velodrome, and that would be fraught with danger to those persons involved in those activities.

110 These findings have to be seen against the background of the finding by Barr J, not challenged by the appellant, that the appellant's management of the Velodrome involved the conduct of a sporting facility which in many ways was not unlike a commercial business, and the fact that the appellant encouraged members of the public to use the Velodrome with the purpose of promoting the sports carried on at the facility and in order to derive income from it.

111 In terms of s 24 of the Local Government Act 1993, the appellant was empowered to provide facilities "appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law". At no time has it been suggested that the appellant, in occupying, controlling and managing the Velodrome, was acting otherwise than in accordance with its statutory duties and powers. The appellant did not contend that safety within the Velodrome was not, generally, part of its responsibilities.

112 In my opinion, in the circumstances that I have described, the appellant brought itself under a duty of care to the touch football players and cyclists who played and trained in the Velodrome. As occupier of the Velodrome, the appellant, by agreeing to touch football being played on the inner field on 6 May 1990, by tacitly authorising the cyclists to use the Velodrome for practising on Sundays, by promoting the Velodrome and encouraging persons to use it for cycling and playing touch football, came under a duty to take reasonable care to avoid injury to touch football players and cyclists: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423, Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431.

113 As was the case in Nagle v Rottnest Island Authority, from these matters it is possible to ascertain the existence of a generalised duty of care - to take reasonable steps to avoid foreseeable risk of injury - owed to persons who used the Velodrome for cycling and touch football, without looking to foreseeability "a concept which in many other situations is the influential, if not decisive, determinant of the existence of a relationship of proximity" (per the majority in Nagle at 430).

114 I have, in any event, come to the conclusion that Barr J was entirely correct in holding that there was a foreseeable risk of simultaneous dual use of the Velodrome by cyclists and touch football players and that the dangers of such simultaneous dual use were self-evident.

115 Generally, therefore, I agree with the approach taken by Barr J in regard to the existence of the duty of care owed by the appellant to the respondent. This is not a "novel case" of the kind discussed by McHugh J in Crimmins v Stevedoring Industry Finance Committee (at 39). Nor is it a case which is any way comparable to Modbury Triangle Shopping Centre Pty Limited v Anzil (where the High Court was concerned with the scope of the duty of care owed by an occupier of land in regard to injuries to an invitee resulting from the criminal behaviour of third parties on the land in question).

116 I do not accept the submissions made by the appellant in regard to the existence of the duty of care owed by it. The conclusion to which I have come under this heading disposes of the appellant's fifth and seventh grounds of appeal.

The circumstances of the collision

117 Before dealing with the question whether the appellant beached the duty of care owed by it, it would be appropriate to describe the circumstances under which the collision occurred.

118 I have mentioned that at the time of the collision the cyclists were undertaking a warm-up. In this activity, one cyclist takes the lead for half or one lap then swings up on to the banking and rejoins the group at the back of the line. There is normally a small gap of a few centimetres between the rear wheel of one rider and the front wheel of the next. The group gradually increases speed as the circuits are completed and each cyclist is required to concentrate on the cycle in front of him. Speeds of up to 55 kilometres per hour are reached and no cycle is equipped with brakes.

119 Each rider looks at the rear wheel or back of the rider in front of him or the gap between his front wheel and the rear wheel of the next rider. There is no question of keeping a more extensive look-out.

120 The cyclists who were performing the warm-up wore brightly coloured uniforms. They were noticed before the accident by a number of the footballers. During the first half of the game, Mr Paul Judge, the captain and manager of the team for whom Mr Benedet played, became aware of the cyclists riding around the track. He realised that they constituted a danger. Another footballer, Mr David Patrick Ryan, said that it was obvious that the cyclists were practising and he became worried that he might step back onto the track into their path. He realised that the situation was dangerous and said so to another player during the game.

121 The footballers were also obvious to the cyclists. There were seven players in each football team. Each team had up to six reserve players who were substituted from time to time throughout the game. Those players who had been substituted waited on the sidelines until their time to play arrived. The players wore brightly coloured jerseys. The referee blew his whistle fairly often. The game was highly visible and audible as well.

122 The football game commenced at about 9.10am. After the first half had begun, the cyclists commenced their warm-up. The half was 25 minutes long. At 9.35am the half time siren sounded. At that stage, the cyclists had completed about seventeen laps. The lead rider at that time was Mr Trudgett.

123 Mr Judge was at the sideline when the half time siren sounded. He immediately called the players over to him. Mr Benedet walked towards him but did not stop and passed him. Mr Ryan said that he heard someone yelling out "Look out, idiot". This was Mr Trudgett. The collision then occurred. About a minute had passed since the siren had sounded. Mr Judge heard the shout, turned and saw Mr Benedet, perhaps a metre and a half onto the cycle track, prostrate on the ground.

124 According to Mr Ryan, Mr Benedet may have taken two steps on the track surface but had not moved very far. Mr Graham saw Mr Benedet walking towards him to join the players as they were assembling for a half time talk at the touchline. He thought that Mr Benedet stepped backwards onto the track.

125 As Mr Benedet moved on to the track, Mr Trudgett and the second cyclist swung upwards on to the embankment. There was no chance for the respondent to take evasive action. At the point of impact Mr Benedet was about a metres and a half onto the cycle track.

126 Barr J found that Mr Benedet had not moved onto the track with the intention of walking across it towards the grandstand on the other side. His Honour said:

"First there was little time in which to do so and the team captain wanted to speak to the members of the team. Secondly, although there is no uniform description of what he did, the preponderance of the evidence suggests that he was not moving as though purposefully to cross the track and to go to the grandstand. He seems rather to have stepped backwards or perhaps sideways onto the track, oblivious not only of the near presence of the approaching riders but also of just where he was standing. I think that his attention was distracted because he was having a conversation with one or more of the other players".

127 All the respondent could remember of the accident was hearing someone "yell out". He then saw the wheel in front of him "go" (that is, disappear). The respondent was not able to remember anything further until the time he regained consciousness.

The appellant's breach of its duty of care and causation

128 Barr J held:

"There were a number of simple and inexpensive measures which the [appellant] could have taken to prevent dual use. Signs could have been erected. Barriers could have been placed across the cycle track. Rangers or other employees could have attended. It was submitted on behalf of the [appellant] that it occupied 100 or so sports grounds of which this was only one and that the cost of having a person on duty would have been so great as to make it impractical to do so. That submission, I think, overlooked the fact that this was a special facility, the dual use of which gave rise to a peculiar danger which was unlikely to exist at an ordinary sports field. I think that special measures were justified in the circumstances".

129 The appellant challenged these findings.

130 Mr Little submitted that it was likely that the signs would not have been obeyed. He pointed to the belligerence displayed by the cyclists on 29 April 1990 when Mr Keogh remonstrated with them and told them that they should not be cycling on the track at the same time that the touch footballers were playing.

131 It is true that the cyclists maintained that they had priority of use in the Velodrome because it "was a velodrome". But their attitude in this respect must be seen in the context that the appellant had taken no steps to disabuse them of the opinion they had formed. In my view an official sign warning cyclists not to practice when an organised touch football game was taking place could well have had the salutary effect.

132 Mr Little criticised the view expressed by Barr J that "barriers could have been placed across the cycle track". He submitted that the use of barriers had not been suggested by any witness and the idea of the use of barriers was something that his Honour had thought of without the matter having been canvassed at the trial. As Mr Hall pointed out, however, the statement of claim referred to "barricades", albeit in the context of preventing access to the cycling track from the inner field. In any event, the use of portable barriers to block access to roads is common usage in this State and the idea of using barriers could have come as no surprise to anyone.

133 Mr Little submitted that in view of the cyclists apparent determination to continue with their practice, portable barriers would simply have been removed by the cyclists. I do not agree. The course of conduct that had been established had caused the cyclists to believe that they had priority in the use of the Velodrome. In my view, had the appellant taken some overt act - carrying the stamp of officialdom - to prevent the cyclists from riding on the track while touch football was being played, a fundamental change of attitude on their part would probably have been brought about. In my view, the placement of barriers across the cycle track would probably have had that effect.

134 Further, I agree with the view expressed by Barr J that, if no other reasonable measures could have been taken, it would have been appropriate - in the light of the "peculiar danger" constituted by simultaneous dual use - to direct rangers or other employees of the appellant to ensure that such use did not take place.

135 In this regard, Mr Jenkins said that if ordinance inspectors (the previous name for rangers) had seen dual use occurring it would have been part of their duty to insist that the Velodrome be used for only one purpose. Nevertheless, he had not given any instructions to that effect.

136 Prior to the collision, the appellant did not place any contractual obligation on hirers to prevent simultaneous dual use; nor did the appellant at that time ever warn hirers of the dangers of such use and did not recommend to them that they should take appropriate steps to ensure that such use did not occur. The appellant merely left it to the particular hirer to take whatever steps which, of its own volition, it might think fit to prevent simultaneous dual use.

137 Accordingly, neither Mr Keogh nor any one else on behalf of his Canterbury Bankstown Touch Football Association was armed with any authority from the appellant to require the cyclists to stop using the track while football was being played. Further, there was nothing to indicate to Mr Keogh or any other member of his Association that some person on the Association's behalf should assume the responsibility to ensure that simultaneous dual use did not take place.

138 On the other hand, since the collision, the appellant, as a matter of routine, has obtained undertakings from hirers of the Velodrome that they will not let the activities of touch football and cycling take place simultaneously.

139 In my view, Barr J correctly held that, had the appellant taken the steps listed by him, simultaneous dual use would probably have been prevented. In addition, the contractual measures taken by the appellant after the accident would also probably have prevented such use.

140 I would not uphold the appellant's submissions in regard to breach of the duty of care and causation. This conclusion disposes of the sixth ground of appeal.

Voluntary assumption of risk

141 As regards voluntary assumption of risk, Barr J said:

"What the [appellant] must show to establish such a defence is that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. The issue is not whether the plaintiff voluntarily and rashly exposed himself to the risk of injury, but whether he agreed that if injury befell him the loss should be on him and not on the defendant: Carr & General Insurance Corporation Limited v Seymour (1956) 2 DLR 369 at 371 to 372; Wilson v Darling Island Stevedoring Company [1956] HCA 8; (1955) 95 CLR 43 at 82".

142 Barr J had regard to the fact that at the time of the collision the respondent was only seventeen years old at the time of the collision. His Honour concluded that, notwithstanding the respondent's youth, he was a highly experienced cyclist and able easily to appreciate the dangers of participating in the warm-up. His Honour concluded that the respondent was not overborne by his elite colleagues.

143 Despite these findings, Barr J concluded that it could not be said that, merely by participating in the warm-up voluntarily, the respondent assumed the risk of injury. His Honour found that the respondent had not agreed that, if injury befell him, the loss should be on him and not on any other negligent party. In my view his Honour was correct in this conclusion.

144 The legal principles applicable to a defence of voluntary assumption of risk are well established. For the defence to succeed it must be shown that the plaintiff fully appreciated the risk and, by voluntary choice, elected, agreed or consented to accept the risk: Insurance Commission v Joyce [1948] HCA 17; (1948) 77 CLR 39; Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292; Jeffries v Fisher (1985) WAR 250; Suncorp Insurance and Finance v Blakeney (1993) 18 MVR 361.

145 As Burt CJ said in Jeffries v Fisher (at 253):

"Of course in many cases that appreciation and acceptance [of the risk] can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient ..."

146 It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists' path. He may well have believed that the footballers were quite capable of acting without negligence and would play their game in safety. These issues were not properly investigated at the trial. What evidence there was on this issue tends to support a finding that the respondent did not expect that the risk would materialise.

147 A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers: cf O'Shea v The Permanent Trustee Company of New South Wales Limited (1971) Qld R 1; Suncorp Insurance and Finance v Blakeney; State Government Insurance Company v Hitchcock (unreported, Full Court, Supreme Court of Western Australia, delivered 11 March 1997).

148 The appellant did not prove the elements necessary to establish that the respondent voluntarily accepted the risk of negligence. I do not accept the appellant's submissions on this issue. This disposes of the eighth ground of appeal.

The negligence of Mr Keogh

149 At the trial the respondent contended that Mr Keogh was negligent in several respects. Barr J conveniently set out those respects as follows:

"Using the inner field without authority, holding a football match whilst cyclists were using the track, failing to control the footballers or the cyclists, failing to warn the [respondent] of the presence of Mr Benedet or stopping him from crossing, failing to obtain exclusive use of the Velodrome, failing to abandon the football game when the cyclists began using the track and failing to erect signs, fencing, barricades or other means to stop people going onto the track and failing to advise users of the playing field not to cross the track and only to use the tunnel".

150 In essence, there were two principal factual findings that led his Honour to dismiss the respondent's claim against Mr Keogh. The first was the finding that Mr Benedet had not intended to cross the track and walk towards the grandstand. This meant that any negligence in failing to advise Mr Benedet not to cross the track and only to use the tunnel had no causative effect. Secondly, Barr J held that Mr Keogh had no knowledge that cyclists would be or were at the Velodrome on 6 May 1990. His Honour concluded that without that knowledge it could not be said that Mr Keogh, who left the Velodrome before the football started, should have remained there, either to guard against the possibility that the cyclists might arrive or to take the steps contended for by the appellant.

151 The finding that Mr Benedet did not intend to walk across the track was open to his Honour and, in my view, cannot be challenged.

152 On 6 May 1990 Mr Keogh arrived at the Velodrome a little after 7 am. He set up markers on the touch football field and on pitches in Waterworth Park. He completed his duties on the inner field by 7.30 or 7.45 am. He said that he left before the cyclists arrived and he was not at the Velodrome when the collision occurred. Barr J accepted this testimony and found that Mr Keogh left the Velodrome no later than 8.00 am, at a time when he had no reason to believe that the cyclists would come to the ground and use the track while touch football was being played.

153 The other evidence as to whether the cyclists were at the ground before Mr Keogh left was vague and unsatisfactory. Mr Graham said that he arrived at the Velodrome between 8 am and 8.30 am. He thought that there were cyclists within the grounds at that stage but he was not certain. He did say that the cyclists were not on the track when he arrived. According to the respondent, he arrived at the ground at about 8 am to 8.30 am with his father, before the warm-up had begun. When the cyclists did commence the warm-up, the football game was under way. When Mr Trudgett arrived, the touch footballers were already playing on the inner field. According to Mr Stoker, the touch football game was already in progress by the time the group went onto the cycling track. None of this testimony contradicts the finding that Mr Keogh left the ground before the cyclists arrived, that is, he left no later than 8.00 am.

154 Barr J regarded Mr Keogh as a credible witness. His Honour was entitled to accept Mr Keogh's testimony. In my view, the finding that Mr Keogh did not know that the cyclists would be at the ground is not open to attack.

155 Barr J summarised his conclusions in respect of Mr Keogh as follows:

"I am satisfied that there was no negligence on the part of Mr Keogh in assigning a football match to the inner field. There was no negligence in his not remaining in watching over the game. He could not be said to be negligent in failing to call off the football match when the cyclists insisted on using the track, for he did not know of their presence. As I have already concluded, the failure to require or warn Mr Benedet or others to use the tunnel and the failure to prevent persons including Mr Benedet from crossing the track, if failure it was, has no causal connection with an injury suffered by the [respondent], since Mr Benedet was not attempting to cross the track".

156 The respondent, in his cross-appeal contests these conclusions but in my view they are unassailable. I would dismiss the grounds of cross-appeal against Mr Keogh.

The negligence of Mr Benedet

157 The respondent pleaded that Mr Benedet was negligent, relevantly, in failing to keep a proper lookout, failing to keep off the cycling track while it was being used by bicycle riders at speed and failing to keep out of the way of the cyclists.

158 Barr J accepted that Mr Benedet probably realised that the cyclists were present on the track. I have pointed out that the continuous circling of the track at high speed by the cyclists was patently obvious and Mr Ryan and Mr Judge were well aware of their presence and the danger they constituted. Mr Benedet must have known that the cyclists constituted a grave danger to any person venturing on to the track. He must have been aware that for his own safety and the safety of the cyclists he had to ensure that he stayed off the track. Despite this, he walked across the track without looking, into the path of the speeding cycles.

159 Nevertheless, Barr J found that Mr Benedet was not negligent. His Honour's reasoning in this respect is set out in the following paragraphs:

"It is impossible to find how much time elapsed between Mr Benedet's standing beside the track, moving onto it and then being hit, but it must have been very short. Whilst he was undoubtedly careless and inattentive, therefore, it is proper I think to regard his carelessness and inattentiveness and momentary. Immediately before he moved onto the track he appears to have been either standing facing away from the track or walking slowly backwards to it. I think that he was intent on moving in any particular direction or for any particular purpose and that he did not realise how close he was to the cycle track.

Having regard to the proximity in which events outside his control had placed him to the track and the speed with which the collision took place, one incident of which was the impracticality of Mr Trudgett's warning and the impossibility of Mr Benedet's avoiding the collision, I think that he ought not to be held responsible for the collision or its consequences".

160 This approach bears some similarity to the observations of Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 310 where their Honours said:

"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in a context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risk. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage".

161 See also McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 where Mason, Wilson, Brennan and Dawson JJ said at 315:

"As Windeyer J observed in Sungravure Pty Limited v Meani (1964) 110 CLR at 24 at 36, when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to `inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions'. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, `excusable in the circumstances because not incompatible with a conduct of a prudent and reasonable man'". His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon a highway".

In McLean v Tedman the majority of the High Court concluded that the appellant's conduct "amounted to mere inadvertence, inattention or misjudgment".

162 The inquiry in regard to Mr Benedet does not involve contributory negligence but I accept that the considerations referred to in the authorities mentioned are relevant to the present issue. Plainly, the question of Mr Benedet's negligence has to be determined by reference to the particular circumstances in which he found himself, and regard has to be had to the fact that the act said to constitute negligence on his part took place over a period of no more than a couple of seconds.

163 In my opinion, however, the paramount factor in regard to this aspect of the case is the obviousness of the very serious danger posed to the touch football players by the cyclists who were circling the track.

164 It is difficult to understand how, in these circumstances, it came about that Mr Benedet walked onto the cycle track. It is true that Mr Benedet was probably tired after the first half of the football game and his mind might have been on other things. These matters influence the degree of negligence on Mr Benedet's part, but they do not negate negligence. The danger was so obvious and extreme that I do not think that Mr Benedet's conduct can be described as "mere inadvertence, inattention or misjudgment". It was certainly careless, as Barr J found. Apparently, his Honour did not regard the term "careless" as being equivalent to "negligent". But in my view Mr Benedet's act in walking onto the track has to be categorised as negligent.

165 The additional facts that Mr Benedet's inattentiveness was only momentary, and only a few seconds elapsed between the time that he commenced walking across the track and the time of the collision, should not lead to a finding that he was only guilty of inadvertence or an error of judgment. After all, many cases of negligence involving traffic accidents are characterised by the same features.

166 I would uphold the respondent's cross-appeal against Mrs Benedet in her capacity as the Executrix of Mr Benedet's estate.

The respondent's contributory negligence

167 Barr J held that the respondent was guilty of contributory negligence and the respondent cross-appeals against this finding.

168 The touch football players were wearing bright yellow and green uniforms. The referee used a highly audible whistle to control play. It must have been obvious to the respondent, as Barr J found, "that touch footballers were seriously engaged in a match on the inner field". This would not have been a complete surprise to the respondent as he had seen touch football being played on the inner field on 29 April 1990.

169 The respondent had ridden about 17 laps in the course of the warm-up and had also ridden a number of laps solo before the warm-up commenced. He had ample opportunity to observe what was happening on the inner field.

170 Barr J said:

"[The respondent] was well aware of the speeds he and his colleagues were likely to reach during the warm-up, of the close proximity of his cycle to the next and of the limited opportunity he would have to observe events around him once the warm-up started and the speed approached its maximum. If he had bothered to think about it, he would have realised what an extraordinarily [sic - dangerous] pursuit he was undertaking given the proximity of the touch footballers".

171 Barr J found that the respondent had not been negligent in the manner in which he rode the cycle and it was probably impossible for him to avoid the collision. His Honour said:

"His negligence, for that is what it was, consisted in his undertaking a dangerous pursuit in the circumstances I have described".

172 Mr Hall submitted, in effect, that it was unrealistic to expect the respondent not to participate in the warm-up, despite the dangers involved. He drew attention to the respondent's relative youth and his admiration and respect for his older and more experienced colleagues (of whom at least two were champion cyclists). Barr J dealt with this argument by pointing out that the respondent had denied a suggestion that he was trying to impress his elite colleagues. Furthermore, Barr J did not think that the respondent was overborne by them.

173 In the light of the findings of Barr J I would not uphold the arguments advanced by Mr Hall. I accept that some weight must be given to the respondent's youth and the position in which he found himself. These affect the extent to which the respondent was guilty of contributory negligence. But I agree with Barr J that the respondent's participation in the warm-up, given the obvious danger to all involved, was negligent.

The apportionment of responsibility for the respondent's damages

174 Barr J found that as between the respondent and the appellant the responsibility for the collision and its consequences was equal.

175 I have found that Mr Benedet was negligent and his negligence contributed to the collision. This means that an entirely new exercise of apportionment must be undertaken and this Court must exercise its discretion in this respect afresh.

176 In apportioning responsibility, Barr J took into account his findings that the appellant had not authorised the cyclists to use the Velodrome on 6 May 1990 and the respondent did not believe that he was so authorised. I have come to different conclusions on these two issues and these different findings have an influence on the apportionment that I would make.

177 In my opinion, broadly speaking, the respondent and Mr Benedet were negligent to the same degree. The extent of the respondent's negligence is mitigated, partly, by his youth and his feelings of admiration and respect for his co-riders. These matters would have inhibited a decision not to participate in the warm-up. The particular circumstances in which Mr Benedet found himself, having played the first half of the football game, and the fact that his inattention and carelessness were momentary, also tend to diminish the degree of his negligence. I would regard the respondent and Mr Benedet as having been equally culpable.

178 In my opinion, however, the primary cause of the collision (and the respondent's injuries) was the negligence of the appellant in breaching its duty to take reasonable care to avoid injury to the persons engaging in activities in the Velodrome, activities promoted and encouraged by it.

179 I would apportion 50% of the responsibility for the respondent's injuries to the appellant, 25% to Mr Benedet, and 25% to the respondent himself.

The quantum of damages

180 Barr J carefully analysed the facts relevant to the assessment of damages. He found that the collision caused the respondent to suffer from post traumatic stress disorder and may have aggravated a pre-existing personality disorder. The collision also caused the respondent to suffer a depressive illness that had a biological component. His Honour concluded:

"I think that he is still suffering from post traumatic stress disorder and depression. The post traumatic stress disorder is due to the collision. The duration and intensity of the [respondent's] depression may also be said, though with less confidence, to have resulted from the collision".

181 Barr J went on to say:

"The stressors which have affected the [respondent] since the collision have likewise had a significant effect upon the psychological health of the [respondent]. Most of them were unrelated to the collision and, I think, not made worse in their effect by the prior fact of the collision ...

If the collision had not occurred, the [respondent] would now be in a better psychological health than he is, but he would not have been in good psychological health. By 1990 his psychological condition predisposed him to serious consequences from traumata which might not affect a psychologically healthy person. I think that his psychological health would probably have deteriorated if he had not been involved in the collision.

The prognosis for his post traumatic stress disorder is poor and I think he will probably suffer from its symptoms for many years into the future. I think that the symptoms will not always be as bad as they are at present, however, provided he can follow a rehabilitation programme and get back into the workforce and begin to lead a life which he himself regards as worthwhile".

182 Barr J found that, but for the collision, the respondent would have completed a course in viticulture that he had undertaken and would have had a reasonable chance of making a career as a grower of wine grapes. His Honour accepted however that in consequence of the collision the respondent was suited to a restricted range of occupations from an unskilled to a semi-skilled level. Nevertheless, the respondent did not make good his claim that he was unemployable and would continue to be unemployable for an indefinite period.

183 His Honour stated:

"Whilst I accept that the plaintiff continues to suffer from a post traumatic stress disorder or an anxiety disorder it has to be recognised that although there is a causal relationship between the collision and those conditions, they exist and would have existed independently of the collision because of the fragile personality of the plaintiff before the collision and because of independent stresses which have since had a significant effect upon him. I think that because of those matters his ability to have a full and satisfying working career would always have been severely compromised. In one sense the effects of the collision upon him can be regarded as accelerating the effect of independent forces. I shall therefore apply a significant discount when assessing his economic loss".

184 An important part of the respondent's claim related to the fact that he had given up serious cycling. He contended that but for the collision he would have obtained selection at the Olympic Games, would have turned professional and would have earned substantial sums of money in that pursuit. Barr J, however, did not accept that the respondent had any chance at all of earning high sums of money as a professional cyclist. The respondent ultimately put his wage loss claim by comparison with a viticulturist and Barr J said that he thought that that was a realistic approach to the case.

185 The respondent cross-appealed in regard to the assessment of damages in respect of the following heads of damage:

(a) Out of pocket expenses to the date of trial.

(b) Future economic loss.

(c) Loss of opportunity to have a career as a professional cyclist.

(d) Loss of future superannuation benefits.

(e) General damages.

186 The parties agreed that the respondent had incurred $13,623 in respect of out of pocket expenses to the date of the trial, but the question whether those expenses were incurred in consequence of the injury suffered was left to the trial judge to determine. His Honour concluded that not all of the out of pocket expenses were caused by the collision. This finding was consistent with the finding that the respondent suffered from a pre-existing condition which would have deteriorated in any event, but which was exacerbated by the collision. In my view, his Honour's decision was unexceptionable and the cross-appeal in this respect must be dismissed.

187 As regards future economic loss, the basis of the respondent's complaint was the assertion that Barr J erred by allowing future economic loss for 20 years only. His Honour's reasons for this conclusion were as follows:

"I think that after 20 years he will have become rehabilitated, because I think that rehabilitation is possible, or would for independent causes have become practically unemployable. This will subsume any discount for vicissitudes".

188 Mr Hall submitted that the 20 year figure fixed upon by the judge was arbitrary. His Honour was required to make in effect a discretionary decision based on a wide range of evidence concerning the respondent's future economic prospects and the income he would have earned but for the collision. His Honour was doing no more than a judge determining future economic loss is usually required to do.

189 Mr Hall submitted that his Honour's assessment incorporated an unreasonable discount for the respondent's pre-accident condition. It must be remembered, however, that his Honour made no allowance for vicissitudes. In my view the future economic loss award fell within his Honour's discretion and the challenge in regard thereto should fail.

190 I have pointed out that Barr J held that at the date of the collision the respondent had no chance whatever of achieving success as a professional cyclist and earning significant sums of money in that capacity. The respondent argues that he had reasonable prospects of a successful career as a professional cyclist and some allowance should have been made for the loss of that chance. The issue is essentially one of fact. It was open to his Honour to find that the respondent had no chance at all of making a career as a professional cyclist and in my view, on ordinary principles, the cross-appeal in this respect must fail.

191 The cross-appeal in respect of loss of future superannuation benefits depends upon the respondent being successful in regard to the cross-appeal concerning the award for future economic loss. As I would dismiss the cross-appeal under that head, I would not uphold the cross-appeal in respect of loss of future superannuation benefits.

192 Barr J awarded the respondent general damages of $80,000. The respondent contends that this award was inadequate. I am unable to discern any error of fact made by his Honour in assessing the award for general damages and in my view the award was within discretion. I would not disturb his Honour's decision in this respect.

Interest on damages and costs

193 In my opinion, the orders made by Barr J should be altered to accommodate my conclusions that Mr Benedet was negligent and his negligence contributed towards the collision, and that the apportionment of responsibility should be 50% in respect of the appellant, 25% in respect of Mr Benedet and 25% in respect of the respondent himself. Such a consequence would result in the award for damages being increased (as it would only be reduced by 25% and not 50% as it was pursuant to the decision of Barr J).

194 Furthermore, as the damages assessed by his Honour, after taking into account an apportionment of 50%, were less than the amount of the Calderbank offer, calculation of interest on damages stopped at the date that offer was made. Inevitably, on the basis of the apportionment that I propose, the award of damages will exceed the amount of the Calderbank offer. It follows that a new calculation would have to be made in respect of interest on damages.

195 During the course of argument on appeal it was suggested to the parties that, should the cross-appeal succeed to any relevant extent, the parties should attempt to agree upon an appropriate minute of orders which would incorporate any increase in the interest component of the award. The parties agreed to this proposal and I shall not myself attempt to calculate the additional interest to which the respondent would be entitled.

196 Similarly, subject to any matters of which the Court is presently unaware, the costs orders would have to be altered to take into account the fact that the award of damages exceeded the Calderbank offer. The minute of orders to be brought in by the parties should deal with any alteration required in the costs orders.

Summary of conclusions

(1) I would dismiss the appeal.

(2) I would uphold the cross-appeal in the following respects:

(a) I would set aside the orders made by Barr J in relation to the negligence of Mr Benedet and the liability to the respondent of Mrs Benedet as Executrix in the estate of the late Mr Benedet.

(b) I would grant a verdict and judgment against Mrs Benedet in her aforesaid capacity in favour of the respondent.

(c) I would set aside the apportionment determined by his Honour and apportion responsibility on the basis of 50% in respect of the appellant, 25% in respect of Mr Benedet and 25% in respect of the respondent himself.

(3) Otherwise I would dismiss the cross-appeal and order that the respondent pay Mr Keogh's costs of the cross-appeal.

(4) I would direct that the parties bring in an agreed minute of order reflecting the above and dealing with further costs orders and any variation that has to be made to the orders in regard to interest on damages.

(5) If no agreement as to the minute is arrived at within 21 days from date hereof, within 14 days thereafter the parties should file written submissions in respect of the issues that remain outstanding. Those written submissions should reflect the orders for which each party contends.

197 MATHEWS AJA: I agree with the orders proposed by Ipp AJA and with his reasons therefor.

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LAST UPDATED: 05/03/2002